B.K. Mehta, J.
1. This petition under Article 226 of the Constitution of India, at the instance of Swami Bhagvadacharyaji Education Trust, which owns and manages Prabhudas Thakkar College of Arts, is unfortunately second round of litigation in the matter of obtained affiliation for the Commerce college which the trust wants to start. The affiliation is sought under the Gujarat University Act, 1949. The petitioner-trust started the college in the year 1963 when it had two faculties of Arts and Science. The Science faculty was required to be closed down since its economy did not permit its viability with the result that there is only one Arts faculty in the petitioner-trust college. After the introduction of the new pattern of education, which is known as 10 + 2 + 3, the Pre-university Arts division was closed down and was handed over to Higher Secondary schools. The present trend of admissions indicate that students are desirous of joining Commerce college reducing the numbers of aspirants to Arts college. The inevitable result of this change in the tread is that there is paucity of student strength in Arts faculty of the petitioner-trust college. Pursuant to the recommendations of High Power Committee appointed by the State Government, known as Paul Committee, to examine the financial structure of the colleges in the State assisted by the State Government by awarding grant-in-aid and also for recommending the norms for the viability of the existing colleges/faculties and measures for preventing establishment and growth of weak and nonviable colleges/faculties, it was decided by the State Government that nonviable colleges having single faculty should be allowed to open a second faculty for purposes of attaining viability. The petitioner-trust college having regard to the paucity of the student strength in its Arts faculty which fell much below, the minimum viability norms of 300 students accepted by the Government, decided to start a Commerce faculty with two fold purposes, namely, (i) attaining viability norms fixed by the Paul Committee and; (ii) catering the need of the large section of student community seeking admission to Commerce college and accordingly made an application for grant of affiliation for additional faculty for Commerce college to be commenced in the academic year 1980-81. Under Section 33 of the Gujarat University Act, 1949 (hereinafter referred to as 'the University Act') the Executive Council of the Gujarat University had appointed a Need Committee for examining the application of the petitioner-trust college and four other colleges of Ahmedabad city and other two colleges from the mofussils which have sought affiliation under the Gujarat University Act. The Need Committee on consideration of the relevant material reached the conclusion that so far as Ahmedabad colleges were concerned, there was no need for granting affiliation to additional commerce faculty in those colleges and that the existing colleges should be allowed to add one more division. In pursuance of this decision of the Need Committee, the application of the petitioner-trust for additional commerce faculty in its college was rejected by passing resolution in the meeting held on February 12, 1980 and further decided that the existing colleges should be allowed to add one more division. The Executive Council while accepting the recommendations of the Need Committee not to grant affiliation to the petitioner-trust for additional faculty of Commerce disagreed with the recommendations of the Need Committee for granting permission to add additional classes for the 18 existing colleges in the State. The petitioner-trust, therefore, preferred an appeal from the decision of the Executive Council under Section 33(4) of the University Act to the State Government. The Joint Secretary of the State Government in Education Department, heard the representation of the petitioner-trust. However, the appellate authority did not agree with the submissions of the petitioner-trust and, therefore, by his order of May, 17, 1980 dismissed the appeal. The petitioner-trust, therefore, moved this Court by writ petition for appropriate writs, orders and directions to quash and set aside the said order of the State Government by Special Civil Application No. 1482/80, which was filed in this Court on 2-6-80. Meanwhile, the petitioner-trust made a fresh application for affiliation for academic year 1981-1982 by its application of May 21, 1980. Since this application was beyond the last date prescribed under Section 33(1) of the University Act, which was March 31, 1980, made an application for condonation of the delay which had taken place in submitting the said application to the University which was forwarded by Vice-chancellor with his recommendations to the Executive Council. Before this application was considered and disposed of by the Executive Council this Court by its judgment and order of June 30, 1980 allowed the Special Civil Application on the short ground that the order of the State Government of May 17, 1980 rejecting the appeal of the petitioner-trust was vitiated as no adequate and sufficient opportunity was given to the petitioner-trust of bearing. While allowing the Special Civil Application, this Court (per B.K. Mehta, J.) made certain observations and issued the directions in line thereof to the appellate authority to whom the matter remanded. This Court prima facie found on admitted materials before it on its record that the existing provisions made for the Commerce stream by other colleges in the neighbour would fall short by at least for 1000 students. This Court observed after recording the above prima facie finding as under:
Any way, this is a matter of record as well as some rough estimate on the basis of the statistics of the past years which will disclose the trend of the students appearing in the Std. XII in the Commerce stream, the number of students successful in the said stream, the actual number of students seeking admission to Colleges, the number of repeaters and the number of migrants from mofussil towns to Ahmedabad for last three or five years. This would certainly disclose a definite trend about the number of students that are likely to enter the commerce stream on which the ultimate pattern and the facilities of the commerce colleges should be shaped. It would be in the interest of the University as well as the local colleges imparting education in different streams, particularly Commerce stream and the student community in general that a definite forecast is made by the University authorities on certain statistical data. In my opinion, it would be hazardous to go by a rough average of likely increase of 10% every year and decide the question about the additional facilities which should be developed or should not be developed in a particular stream.
At the end this Court issued the following directions:
The matter will, therefore, go before the State Government in the Education and Labour Department and the concerned authority will hear the petitioners as well as the respondent University after giving the petitioners an opportunity to make written submissions in reply to the written comments if they are so advised and hear the matter afresh and decide the question about the grant of affiliation on the relevant and correct legal principles, inter alia, having regard to the existing provision for the same type of education made by other colleges in the city of Ahmedabad and after considering the relevant material particulars as the actual and/or likely number of students seeking entry, in the Commerce stream in the city of Ahmedabad.
While making the rule absolute, the court made the following recommendations:
It is recommended that in view of the imperative need of the student community seeking entry, particularly to the Commerce stream, the State Government shall decide the matter having regard to the relevant consideration, inter alia, of need of the student community, educational standards and norms prescribed by the University and the overall admission position as disclosed from the relevant statement of figures filed by the parties and issue necessary directions so that the pressing problem of admission be solved in a just and fair manner inter alia by granting affiliation for additional faculty of Commerce in the new Colleges in the city so as not to place burden on the existing Colleges.
2. This Court has reserved liberty to the Gujarat University to permit the existing commerce colleges as well the combined colleges to admit additional students as permissible in terms of the resolution of Executive Council of April 19, 1980. Liberty was also reserved to the University to move the court if a situation arose where a larger number of students is required to be admitted beyond maximum permitted under the said resolution of the Executive Council. It should be noted that pursuant to this liberty reserved to the University, a Civil Application was made by the University on or about the 2nd July, 1980 being Civil Application No. 1558/80 stating inter alia that approximately 1000 students were waiting for admission to Commerce faculty and under the resolution of the Executive Council and under the Ordinance No. 120-B the Commerce colleges can open four divisions for the year 1980-81 for preparing students for First Year Commerce Examination, and in view of the rush to this Faculty, even if the Vice-chancellor were to exercise his power to permit to add 25 students in a college, it would not meet with the situation. The Committee was, therefore, unanimously of the opinion that the existing commerce colleges and colleges with Commerce Faculty in the city should be at least permitted to add one additional division to the existing facility of 4 divisions. The University, therefore, prayed that this Court may permit the University to grant permission to add one more division to the First Year Commerce Class in 18 Ahmedabad City Colleges. This Court by its order of July 4, 1980 granted liberty to the University to permit four colleges to have one more division of 100 students each. The University again applied on July 10, 1980 for addition of one division to one more commerce college in addition to the four colleges in respect of which the liberty was granted earlier. This Court by its order Of 11th July, 1980 granted permission as prayed for but clarified that the permission granted under its order of July 4, 1980 in C.A. No. 1558/80 and also granted by the second order 'would not be treated as existing' faculties by the State for the purposes of deciding the appeal of Prabhudas Thakkar College.
3. The Secretary of the State Government in Education Department, after the remand from this court, heard the appeal of the petitioner-trust on July 10, 1980. In the opinion of the appellate authority, one of the relevant criteria for determining the question whether the college would supply a need in the locality was 'existing provision for the same type of education made by other colleges in the neighbourhood' and that relevant criteria would mean and include not only the existing intake capacity but also their capacity to absorb more students by necessary expansion with the permission of the University and, since in the present case the University has decided to meet the need by providing expansion to the existing colleges, it cannot be said that this decision of the University was unreasonable or illegal. In that view of the matter, the appeal of the petitioner-trust was rejected by his order of 21st July, 1980. It is this order which is the subject-matter of the present petition.
4. The impugned order of the State Government cannot obviously be sustained since it has taken into consideration the material which cannot be said to be relevant and germane for determining whether the college seeking affiliation would cater to the need in the locality One of the relevant criteria which has a bearing on the question as to whether the college would supply the need in the locality is 'the existing provision for the same type of Education made by other colleges in the neighbourhood. The provision which should be borne in mind by the Executive Council while determining the question whether a college would serve the need in the locality is one which is already made by other colleges in the neighbourhood. On plain reading of Sub-section (2) it is clear that one of the relevant factors which should be borne in mind by the Executive Council is the provision as it existed on the relevant date when the Council is called upon to determine the question whether the college seeking affiliation would cater to the need of the locality. To construe the existing provisions made by the other colleges for the same type of education as to mean the potentiality of the college or its capacity to absorb more students by making necessary provision in future with the permission of the University, would amount to rewriting the provision. The capacity which the existing colleges would acquire for absorbing more students by necessary expansion with the permission of the University cannot be said to be included in existing provision already made. The tenor, the tense and the concept of the relevant factor, namely, the existing provision...made...clearly indicate that the future expansion which a particular college is capable of undertaking cannot be allowed to influence the decision of the Executive Council and, therefore, of the appellate authority. To consider the future expansion of the existing colleges to be implicit in the factor prescribed under Section 33(2) when it enjoins that it is only the existing provision made is to be considered would open up the vistas for many imponderances and uncertainties which could not be strictly said to be relevant or germane to the main question. The appellate authority has therefore, clearly erred and considered the aspect which is not prescribed by the Legislature in Section 33(2) when it observed and held as under:
The question is as to what meaning should be assigned to the words the existing provision. It appears that the contention of the University is that this expression will include with the colleges at the given point of time, but also their capacity to absorb more students by necessary expansion with the permission of the University. This contention appears to be founded. The University is the best judge and it is within its power to decide whether the need is to be met by providing expansion to the existing colleges or by granting affiliation to new colleges. In this case, the University had decided to meet the need by permitting expansion to the existing colleges and it cannot be said that this decision of the University is unreasonable or illegal. The University has also stated that the reasonably expected over-flow will not be of such an order as to justify the opening of a new institution.
In my opinion, the appellate authority completely abdicated its function inasmuch as it left the entire question to be decided to the judgment of the University since the need can be catered to by providing expansion of existing colleges then by opening new colleges. This would, in my opinion, substitute a criteria which is not prescribed in Section 33(2). The governing criteria as stated above, is that where the proposed college seeking affiliation would or would not serve the need of the locality is to be considered it should be in the light of facilities existing for some type of education at the time when such permission for affiliation is sought. In other words, it is only that situation as it existed at the relevant time is to be borne in mind. In that view of matter, therefore, the appellate authority has allowed its decision to be influenced by the factor which is neither relevent nor germane to the determination of the question about the catering of the need by the proposed college and, therefore, its order dismissing the appeal of the petitioner-trust is vitiated. The appellate authority lost sight of one most important fact that the Executive Council had already disapproved the recommendation of the Need Committee to permit every existing Commerce college to open one more division. The appellate authority committed an error apparent on record in implicitly accepting a bare oral statement of the representative of the University about probable expansion contrary to resolution of Executive Council refusing expansion as aforesaid.
5. The question whether there is any need in the locality for additional seats in the Commerce stream is almost beyond dispute. Apart from the prima facie finding which this Court had made in its order of June 30, 1980 disposing of the Special Civil Application No. 1482/80 that there was a shortfall of about 1000 seats in the commerce stream it is borne out by the University itself when it made application to this Court seeking interim permission for opening of new divisions in the colleges in the city. It should be recalled that the University made Civil Appln. No. 1558/80 on or about 2nd July, 1980 staling as under.:
Approximately 1000 students were waiting for admission to commerce faculty. Under the resolution of the Executive Council and under the Ordinance 120-B the Commerce college can open four divisions for the year 1980-81 for preparing students for First Year Commerce Examination. In view of the present rush to this faculty, even if the Vice-chancellor were to exercise his power to permit to add 25 students in a college, it would not meet with the situation. The Committee was. therefore, unanimous of the opinion that the existing Commerce colleges and colleges with Commerce faculty in the city should be at least permitted to add one additional division to the existing facility of divisions.
6. It, therefore, cannot be gainsaid that for academic year 1980-81 there was a shortfall of about 1000 seats in the commerce faculty in the different colleges in the city of Ahmedabed. That was the prima fade finding of this Court also as stated above. If the need is established, which in my opinion, has been established indisputably, the only question to which Executive Council, or for that matter, the appellate authority has to address is whether the provision as existed in different colleges on the relevant date when the authorities are called upon to determine the question whether affiliation should be granted to the college of the petitioner-trust, or not, would be sufficient to cater to the need in the locality. If the answer is in negative and obviously it is, the conclusion is inescapable that the petitioner-trust, should have been considered as qualilled for affiliation provided the other conditions prescribed in Section 33 are satisfied. The learned advocate for the respondent-University, however, urged that there are three obstacles in the way of the petitionertrust. The first obstacle, according to him. is that the academic year 1980-81, for which the petitioner-trust was and is seeking affiliation, has expired or is almost over and, therefore, this Court uinnol grant any relief to the petitioner-trust enjoining the respondent University to gram affiliation for that year. I am afraid, this is over-simplification of the problem. It may be that the respondent University cannot, in the circumstances of the present matter, effectively grant affiliation for academic year 1980-81 but, none-the-less, if the relevant criteria and norms prescribed under the statute for being eligible to affiliation, are satisfied by the Petitioner-Trust the University authorities must consider the case of the applicant for affiliation and grant them affiliation from the next academic year from which it can be effectively granted. The second obstacle pointed out by the learned advocate for the respondent-University is that every year colleges seeking affiliation have to make an application under Section 33 afresh and their cases will be considered on merits. Such applications are to be filed before 31st March of the year proceeding the year in which the colleges are to be started and inasmuch as the petitioner-trust has not made the application for affiliation for academic year 1981-82, by making application before 31st March, 1980, such application cannot be considered unless delay, which has occurred in making such application, is condoned by the Executive Council on recommendations of the Vice-chancellor for special reasons to be recorded. In the present case, since the application for affiliation for the year 1981-82 has been made on 21st May, 1980 and since it has not been condoned by the Executive Council, the petitioner-trust cannot get relief from this Court since it is entirely a question of fact whether it should be condoned or should not be condoned and in any case if the court is inclined to bold that the Executive Council has committed error apparent on the record in refusing to condone the delay, even then the time schedule, which has been prescribed in Section 33, would not be capable of being complied with and, therefore, the court should not exercise jurisdiction by enjoining the respondent-University to consider the case of petitioner-trust for affiliation till the Executive Council again decides the question whether it will serve the need in the locality or not. In other words, the submission is that time schedule prescribed in Section 33 of the University Act is mandatory, it cannot be departed from without jeopardizing the efficient working of the University and the colleges. It is no doubt true that in Section 33(1) it has been prescribed that application for affiliation is to be made not later than 31st March of the year preceding the year in which the college is proposed to be started. This application is to be determined by the Executive Council before 31st July of the year in which the application is made. If the Executive Council decides against the applicant, an appeal is to be preferred to the State Government before 30th September of the same year which the State Government has to decide in any case before 31st December. The Executive Council has to determine the question of affiliation on consideration of the diverse aspects prescribed in Section 33(5) if the Executive Council has decided that the applicant college will serve the need in the locality or its decision in negative against such college is reversed by the State Government in appeal. This decision about the grant of effective affiliation is to be made by the Executive Council before 31st January of the year next after the year in which the application for affiliation is made. This is in short the time schedule prescribed under Section 33 which according to the learned advocate for the University must be strictly adhered to so that the entire academic work in the University and colleges can be efficiently carried out and if this Court enjoins the respondent University to condone the delay which has taken place in making the application by the petitioner trust for affiliation for the academic year 1981-82 it will be practically impossible for the Executive Council to consider and satisfy itself about the diverse requirement of Sub-section (5) of Section 33 and the direction will go against Sub-section (6) Of Section 33, inasmuch as it would be tentamount to directing the Executive Council to take the decision about the affiliation through the prescribed date under the statute, namely, 31st January, has already passed. The contention appears to be attractive but on the close scrutiny I do not think that it can stand to reason. It is no doubt true that the time schedule prescribed in Section 33 has to be carried out as far as practicable, since otherwise the academic working in the colleges and University may be affected. This, however, would not mean that the time schedule which has been prescribed is no mandatory that no departure is possible under any circumstances. If that has been the intention of the Legislature, no provision for condonation of delay could have been made by Legislature in proviso to Section 33(1) where the application for affiliation has been made after 31st March of the year preceding the year in which the colleges is proposed to be started. The proviso indicates that the time schedule is to be adhered to as far as practicable. Any other interpretation canvassed by the learned advocate for the University is self-defeating, inasmuch as in a given situation the University may be required to encourage a new faculty to be opened by existing college or new college to be opened by a person to cater to the need in the locality and if such institution, trust or person is not able to make an application within the time, it has got to be condoned and it may require in a given situation that the entire time schedule which has been fixed may not be complied with strictly. If the interpretation of the learned advocate for the University is upheld, the University will be in a situation without any power or any recourse and the need in the locality may remain unfulfilled. There is also another aspect of the question. Since the carrying out of the programme according to the time schedule is not entirely in the hands of the applicant seeking affiliation and it also depends partly on the authorities which have also to take appropriate decisions in the matter, the time schedule must not be held to be mandatory. The second impediment which has been pointed out by the learned advocate for the University also, therefore, cannot be pressed in service against the exercise of the jurisdiction by this court. The third impediment according to the learned advocate for the University is that this Court should not give any directions to the respondent University to grant affiliation to the college of the petitioner trust for the year 1981-82, because, still the matter is at the first stage where the Executive Council has lo consider whether the college will serve the seed in the locality. I do not think that this contention is well founded, for the simple reason that the larger question whether the college would supply the need in the locality is already concluded by the recommendations of the Need Committee The Need Committee has, in its meeting of February 12, 1980, while considering the application for affiliation of the college of the petitioner-trust, recommended that existing colleges should be allowed to add one more class. In other words, the recommendations of the Need Committee was on consideration of the relevant material about the necessity of additional seats in the Commerce stream that as many as 18 more divisions should be allowed to be open in the city, which would accommodate and absorb as many as 1800 students on the basis of minimum strength of 100 students per each division. It is surprising that the Executive Council while agreeing with the recommendations of Need Committee, in so far as it recommended that the application of the petitioner-trust should not be accepted, decided not to' accept the recommendations of the Need Committee that additional classes should be opened. The decision of the Executive Council is really paradoxical in sense that though the Need Committee recognised that there should be as many as 18 more divisions in the city, the Executive Council did not think fit to permit the new divisions to be opened up by the said colleges in accordance with the recommendations. On one hand the new applicants were not allowed to open up the commerce faculty and on another band the existing colleges are not permitted to open new divisions. Anyway, the fact remains that the question of the need in the locality was concluded by the recommendations of the Need Committee. It can be catered either by allowing the existing colleges to open new divisions, as recommended by the Need Committee, or by allowing the existing colleges to open new faculties of Commerce stream. In so far as the Executive Council decided not to permit the existing colleges to open new divisions the only other alternative which was left with the University, was to permit the colleges to open new faculties of commerce stream. In my opinion, therefore, except for the formal decision in this matter by the Executive Council that the college of the petitioner-trust should be allowed to open new faculty in commerce stream, nothing further requires to be done. It may be true that the effective affiliation would be granted when the remaining conditions of Section 33(5) and (6) are complied with. But so far as the question of considering the application of the petitioner-trust for affiliation is concerned, on the question of it being able to serve the need in the locality, it has been concluded by the recommendations of the Need Committee, and particularly, by the decision of the Executive Committee which decided not to permit the existing colleges to open new divisions. The contention of the learned advocate for the respondent-university and is, therefore, with respect, misconceived.
7. The learned advocate for the respondent-university invited my attention to the amended Ordinance 120-B which has come into force with effect from about January, 1981. Clause (iv) of the said Ordinance, as amended, provides as under:
No affiliated Arts, Science or Commerce College shall have more than four divisions of a class in all faculties taken together, provided that Vice-chancellor may, in his discretion, permit to open one or more divisions in a faculty or faculties only if he deems it necessary to do so.
The submission of the learned advocate for the respondent-University is that the Vice-chancellor can now permit the colleges to open one or more divisions in a faculty, if he deems it necessary to do so. It was, therefore, urged that there may not be any need to be served by the college of the petitioner-trust in such a situation. In my opinion, the relevant question as to whether the applicant college, which is the college of the petitioner-trust in the present case, would serve the need in the locality is to be judged at the time when it made its application for the first time for academic year 1980-81, the decision pertaining to which gave rise to the earlier Special Civil Application which was allowed and the matter was remanded to the appellate authority for decision according to the correct principles of law. The question is not to be posed in context of what situation would develop hereafter if the Vice-chancellor thinks fit to exercise his discretion to permit the existing colleges to open one more division in commerce faculty. It should be recalled that when the matter was remanded by this Court it directed the appellate authority to consider the question under Section 33(2) on the existing provision then made. Even while granting the interim permission to open new divisions to meet with the stop-gap requirement of the students, this Court was careful enough in clarifying that the additional facilities so permitted would not be treated as existing provision already made, for the purpose of determination of the application of the petitioner-trust. Apart from this, proviso to Clause (iv) of the Ordinance 120B empowers the Vice-chancellor to meet with an emergency which may arise by permitting one or more divisions to be opened in a faculty or faculties by the college. It cannot be pressed into service by urging that this is a long term arrangement made in the matter of determination about what new faculties should be allowed to be opened by the colleges. This Court has directed the State Government and the respondent-University inter alia to bear in mind that it would be in the interest of the University as well as local colleges imparting education in different streams, particularly commerce stream and the student community in general that a definite clear forecast is made by the University authorities on certain statistical data and it would be hazardous to decide the question on adhoc basis about the additional facilities which should be developed or should not be developed in a particular locality. In my opinion, therefore, even this last contention of the learned advocate for the respondent-University would not take the case of the University any further. It should be recalled that when this Ordinance was sought to be amended, the petitioner-trust has moved this court for restraining the University from amending the provision. This court, however, (Coram: A.M. Ahmadi, J.) refused to grant the interim relief with this clarification that the changes that the University may make hereafter shall not weigh against the petitioner so far as the question of need is concerned, by his order of 8th August, 1980. In that view of the matter, therefore, the amended provision would not effectively assist the cause of the respondent-University. If should be recalled that the Executive Council has refused to condone the application of petitioner-trust for affiliation for academic year 1981-82. In my opinion the Council committed error apparent on record in refusing to condone inasmuch as the relevant fact that the decision of appellate authority of 17-5-80 was quashed and set aside by this Court in Special Civil Application No. 1482/80 by its order of 30-6-80 was not taken into consideration. The appellate authority, after remand, again dismissed the appeal by his order of 21-7-80. The Executive Council failed to exercise jurisdiction of condoning delay and its order refusing to condone delay must therefore be quashed and set aside.
8. The only question which now remains is that about the relief to which the petitioner-trust is entitled. I am of opinion that the petitioner-trust is entitled to a declaration that its proposed college of commerce would serve the need in the locality and, therefore, it is eligible for being considered for affiliation, provided the conditions mentioned in Sub-section (5) and (6) of Section 33 are complied with. The University shall decide whether the petitioner-trust is entitled to affiliation for its college with reference to the academic year 1981-82 or failing which for the academic year 1982-83. The respondent-University is directed to consider the case of the petitioner-trust for affiliation for academic year 1981-82 and take decision on or before 15th June, 1981, provided the petitioner-trust complies with the requisition issued by the University in the matter of those conditions together with the time limit prescribed for the compliance. In case the petitioner-trust is not able to comply with the requisition the respondent-University shall then consider the case of the petitioner-trust for affiliation for academic year 1982-83 on the basis of the application already made by the petitioner trust in that behalf without examining the question of the need.
9. The result is that this petition is allowed and the impugned order of the State Government in Education Department of July 21, 1980-Ann. P to the petition is quashed and set aside.
10. The decision of the respondent-University dt. 16-8-80 as confirmed by the State Government in appeal on 6th March, 1981-Ann. R and T to the petition, are also quashed and set aside. Directions as above. Rule is made absolute accordingly with no order as to costs.