1.In these bunch of fresh writ petitions under Article 226 of the Constitution of India, common questions of law are involved hence the writ petitions are decided by the present common judgment. Learned counsel for the parties are agree that the petitions be decided at the admission stage. Sri J.N. Mathur, learned Senior Counsel and Additional Advocate General, appeared for respondent University and submits that the petitions be decided on substantial question of law involved in these writ petitions and it is not necessary to file response to the allegations on record, which may be looked into by the respondent University at the time of holding inquiry.
2.While assailing the impugned orders dated 14.7.2011, petitioners counsel submit that the respondent University has taken a decision to de-affiliate the petitioners for extraneous reasons. It is also alleged that the Deputy Registrar is holding the charge of the Office and he is managing the affairs of the respondent University for extraneous consideration and reasons. However, without entering into the mala fide and other factual averments contained in the writ petitions, I leave it open to the petitioners to raise at appropriate forum in future, as the writ petitions are decided on the pure question of law.
3.While assailing the impugned orders, it has been submitted by the petitioners counsel that no opportunity of hearing was provided to the petitioners. No any material or document was supplied giving opportunity to rebut those evidence which are the foundation for referring the matter to the State Government for approval to de-affiliate the colleges.
4.Attention has been invited to sub-section (8) and (9) of Section 37 of Uttar Pradesh State Universities Act, 1973, which is reproduced as under:
"37. Affiliated Colleges.--(8) The privileges of affiliation of a college which fails to comply with any direction of the Executive Council under sub-section (7) or to fulfil the conditions of affiliation may, after obtaining a report from the Management of the college and with the previous sanction of the [State Government], be withdrawn or curtailed by the Executive Council in accordance with the provisions of the Statutes.
(9) Notwithstanding anything contained in sub-sections (2) and (8), if the Management of an affiliated colleges has failed to fulfil the conditions of affiliation, the [State Government] may, after obtaining a report from the Management and the Vice-Chancellor, withdraw or curtail the privileges of affiliation.]"
5.It has been submitted by the learned counsel for the petitioners that the order has been passed under sub-section (9) of Section 37 of the Act without providing opportunity of hearing or inquiry. Hence the order is not sustainable. On the other hand, Sri J.N. Mathur, learned Senior Counsel and Additional Advocate General, submits that the order has been passed in pursuance of powers conferred under sub-section (8) of Section 37 of the Act and the State Government had granted approval and now, the University shall take decision with regard to petitioner's fate after holding due inquiry. Submission of Sri J.N. Mathur is that inquiry shall be held in accordance with law with due opportunity to the petitioner. It has been submitted that after grant of approval by the State Government, an inquiry may be held by the respondent University.
6.On the other hand, Sri I. B. Singh, learned Senior Advocate, raises two-fold arguments. Firstly, that the order has been passed by the State Government under sub-section (9) of Section 37 of the Act and secondly, the inquiry should be held before sending the matter to the State Government. Sri Manish Kumar learned counsel raises same plea as raised by Sri I. B. Singh learned Senior Advocate.
7.After considering the arguments, I am of the opinion that sub-section (8) of Section 37 of the Act empowered to take action against the Committee of Management with regard to affiliation. In case it is found by the Executive Council that there is violation of terms and conditions with regard to affiliation, then after due approval from the State Government, the colleges may be de-affiliated. However, while sending the matter to the State Government under sub-section (8) of Section 37 of the Act, the letter and spirit of the provisions is to hold an inquiry with due compliance of principle of natural justice and record finding. Only thereafter, the matter may be sent to the State Government for approval. The purpose of sending the matter to State Government is two fold. Firstly, the entire material and finding recorded against the Management, must be before the State Government so that the State Government may either approve or disapprove the proposal of the University. In case the State Government approves, then the only course with the University is to pass the order with regard to de-affiliation. The submission of Sri J.N. Mathur, seems to be not correct that the University may hold inquiry after receipt of approval from the State Government. In case the argument of Sri J. N. Mathur is accepted, then it shall amount to violation not only of the principles of natural justice, but it shall deprive the State Government to have a look with regard to the material calling for de-affiliation of the Committee of Management. The State Government must be informed with all the material with regard to proposal sent by the University for de-affiliation of a college. The University while sending the proposal, shall also record its own finding against the Committee of Management. The purpose of the sub-section (8) of Section 37 is to check the arbitrary use of power by the University. Of course, in case the decision taken by the State Government is not in accordance with law or is an incident of arbitrary exercise of power, then it is open for the University to approach the higher judiciary for judicial review against the action of the State Government.
8.Now, coming to sub-section (9) Section of Section 37 of the Act. The sub-section (9) starts with the word, "Notwithstanding anything contained in sub-sections (2) and (8)", meaning thereby, the power conferred on the State Government to consider for de-affiliation of Management is independent than the power of the University. The Government may take action in case the Management of an affiliated college has failed to fulfil the condition of affiliation and in such situation, after obtaining report from the Management and the Vice-chancellor, withdraw or curtail the privilege of affiliation. Here the decision of the State Government is also subject to material supplied by the vice-Chancellor of the University concerned and explanation given by the Committee of Management. While exercising power under sub-section (9) of Section 37 of the Act, it shall always be obligatory on the part of the State Government to obtain explanation from the Committee of Management and also obtained a report from the Vice-Chancellor. In case the report submitted by the Vice-Chancellor satisfies the State Government, that sufficient material exists with regard to withdraw or curtail the privilege of affiliation, then the State Government may pass appropriate order. The power of the State Government under sub-section (9) of Section 37 of the Act, is independent than the power conferred on the University under sub-section (8) of Section 37 of the Act, subject to compliance of principle of natural justice.
9.The impugned order at the face of record say that it has been passed on the basis of letter sent by the University dated 12.7.2011 and in the concluding portion, the State Government directed to take further action against the Committee of management. In case the action would have been taken under sub-section (9) of Section 37 of the Act, then there was no occasion for the State Government to direct the respondent University to take further action in the matter keeping in view the approval granted by the Government. The Government was competent to withdraw or curtail the privilege of affiliation under sub-section (9) of Section 37 of the Act. Accordingly, the argument advanced by the learned counsel for the petitioner to this extent seems to be misconceived and not sustainable.
10.In view of the above, keeping in view the fact that before sending the matter to the State Government, the respondent University has not held any inquiry after due compliance of principle of natural justice and providing opportunity to the petitioners to defend their cause, the impugned order passed by the State Government seems to be not sustainable and is violative of Article 14 of the Constitution of India. The writ petitions deserve to be allowed.
11.The writ petitions are accordingly allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 14.7.2011 contained in Annexure No.1 to the writ petitions with all consequential benefits. Keeping in view the seriousness of the allegations on record, the respondent University is directed to hold inquiry in accordance with law keeping in view the observations made hereinabove expeditiously say within two weeks from today. Sri J. N. Mathur is agree that the inquiry shall be concluded within two weeks.
12.During the course of hearing I have been informed that in the respondent University, since one and half year, there is no regular Registrar. It has been submitted by the respondents counsel that the Registrar has already been appointed. In case the Registrar has not been appointed, the respondents shall ensure the appointment of Regular Registrar in accordance with Rules within a month.
The writ petition is allowed accordingly.
[Justice Devi Prasad Singh] Order Date :- 19.7.2011 Rajneesh AR-PS)