1. Devidutta Tewari Shiksha Sansthan Sanskrit Mahavidyalaya, Khoribari, Laxmipur, Deoria (for short 'Institution') is affiliated to Sampurnanand Sanskrit Viswavidyalaya, Varanasi and provision of U.P. State Universities Act, 1973 and the first Statutes, 1978 of Sampurnanand Sanskrit Viswavidyalaya, Varanasi(for short 'statutes') are applicable to it. The institution was granted permanent affiliation vide certificate of affiliation / recognition dated 25.7.2005. It is alleged that in the year 2013, while Shastri Exams were being held in the Institution, the flying squad found students indulging in mass copying. A notice dated 12.7.2013 was given by Dy. Registrar of the University, calling upon the Principal of the Institution to appear before the Unfair Means Committee for putting forth its explanation. In the notice, it is mentioned that in case no one turns up, it will be assumed that the institution has nothing to say regarding charge of mass copying and exparte action will be taken. Pursuant thereto, the Principal of the Institution submitted an explanation in writing dated 17.7.2013 before the Unfair Means Committee, in which allegations of mass copying were categorically denied. It was stated that the Flying Squad found two students each cheating in class room no.1, 4 and 6 that is, in all 6 students. These sporadic instances are not sufficient to charge the institution with mass copying. Thereafter, the petitioner Institution was served with the impugned communication dated 29.8.2013 mentioning that on basis of the report submitted by the Flying Squad, the explanation given by the petitioner Institution dated 17.7.2013, and the recommendations made by the Unfair Means Committee, the Examination Committee in its meeting dt.01-08-2013 had decided to prohibit the Institution from taking new admissions during the year 2014 on charges of gross mismanagement in holding exams, inadequate arrangement for custody of examination record, and discovery of unsealed answer scripts of the exams already held, etc. The Institution was warned that in case no improvement is observed, then as per the decision of the Executive Committee in its meeting dt. 20-01-2013, proceedings for cancellation of affiliation shall be undertaken. Challenging the said communication, the present writ petition has been filed by its management and the principal. A further relief has been sought for a direction to the University to treat 60 students already admitted prior to passing of the impugned order, to be bona fide students and allow them to appear in the examination 2014.
2. Learned counsel for the petitioner submitted that the impugned order is wholly without jurisdiction, in as much as, the Examination Committee is not competent to impose ban on affiliated college to take new admissions. It is contended that the aforesaid power is vested with the Executive Council as per Statute 12.32 of Part 6 of Chapter XII (for short ''statute 12-32'). In the present case, there was no approval of the Executive Council. It has further been brought to the knowledge of this Court that during the pendency of the writ petition, the Executive Council had allegedly approved the decision of the Unfair Means Committee dated 1.8.2013 in its meeting held on 25.10.2013. It is contended that subsequent approval will not cure the defect. Learned counsel for the petitioner further submitted that under the statute in question, the Executive Council can pass such order only if it is of the opinion that the institution had failed to observe the conditions prescribed for starting such classes. But in the present case, the Executive Council had not recorded any such finding and which, even otherwise, vitiates the decision of the Executive Council taken in its meeting dt. 25-10-2013. It cannot validate the impugned order. It is further submitted that the decision to debar the Institution from taking new admission can be applied only prospectively and in the present case, petitioner Institution had admitted 60 students between 1st July to 14th July 2013 and ban imposed cannot be made applicable to such students. It is stated that by representation dated 10.9.2013, the aforesaid fact was duly brought to the knowledge of respondent no. 3, alongwith which, the petitioner Institution also submitted the extract of attendance register to prove that such students are regularly attending their classes. However, the University is not prepared to hold their examinations on the basis of impugned order, which is manifestly illegal.
3. On the other hand, Sri Sri V. B. Mishra, learned counsel appearing for the University contended that the impugned decision of the Examination Committee dated 29.8.2013 has the due approval of the Executive Council, as is evident from the minutes of the meeting held on 25.10.1013 (CA-5). He further submitted that the petitioner Institution was verbally informed on 17.7.2013 not to take new admissions and as such, the petitioner Institution cannot take benefit of any action taken in this regard. It was thus contended that 60 students allegedly admitted during the academic session 2013-14 are not entitled to appear in the examination.
4. On the pleadings of the parties, the following questions arise for determination by this Court :-
Question no. 1: Whether the decision of the Examination Committee taken in its meeting held on 1.8.2013, which was communicated vide letter dated 29.8.2013, is illegal and without jurisdiction ?
Question No.2 : What is the effect of the subsequent approval accorded by the Executive Council in its meeting held on 25.10.2013 to the decision of the Examination Committee dated 1.8.2013 ?
Question No.3 : Whether the decision of the Executive Council in its meeting dated 25-10-2013 can be pressed in defence for not holding the exams of the students already admitted?
5. I will deal with these questions one by one.
6.(a) Question No.1: The power to prohibit an affiliated institution from taking new admissions in a particular class is with the Executive Council, as per statute No. 12.32 which reads as follows :-
Þ12-32 dk;Z&ifj"kn~ fdlh egkfo+|ky; dks fdlh fof'k"V d{kk esa Nk=ksa dk izos'k u djus dk funsZ'k ns ldrh gS] ;fn dk;Z&ifj"kn~ dh jk; esa lEc) egkfo|ky; }kjk ml d{kk dks izkjEHk djus ds fy, fu/kkZfjr 'krksZa dh mis{kk dh x;h gksA fdUrq dk;Z&ifj"kn~ dh iwokZuqKk ls mlds lUrks"kkuqlkj 'krsZa iwjh dj ysus ij d{kk;sa iqu% izkjEHk dh tk ldrh gSaA
(b) There is also power to suspend the privileges of affiliation which is as under:-
12-33 ;fn dksbZ egkfo|ky; lEc)rk dh 'krkZsa dks iwjk djus ds lEcU/k esa fo'ofo|ky; dh vis{kkvksa dh mis+{kk djs vkSj fo'ofo|ky; }kjk uksfVl ds tkjh fd;s tkus ds ckotwn Hkh 'krkZas dks iwjk u djs rks dk;Z&ifj"kn~ dqykf/kifr dh iwoZ Lohd`fr ls rc rd ds fy, lEc)rk fuyfEcr dj ldrh gS] tc rd fd dk;Z&ifj"kn~ ds lUrks"kkuqlkj 'krasZa iwjh u dj nh tk¡¡;Aß
(c) Thus, under the Statutes, it is the Executive Council which can take such decision. Learned counsel for the University could not point out any provision where under the Examination Committee is competent in this regard. In the instant case, the impugned decision, as communicated to the petitioner Institution by respondent no. 3 vide its letter dated 29.8.2013, is by the Examination Committee in its meeting held on 1.8.2013 and not by the Executive Council and thus, it is without jurisdiction.
(d) Admittedly, under section 37 of the Act, ample power is vested with the University to withdraw or curtail the privileges of affiliation in case the College fails to comply with any direction of the Executive Council or fails to fulfill the conditions of the affiliation. The impugned order warns the petitioner Institution of such action being taken in case it does not make improvements. However, admittedly, no such action was taken. Even power under Statute 12.33 was not exercised, where under the privilege of affiliation can be suspended with the prior approval of the chancellor. Petitioner institution still enjoys the privilege of affiliation with the respondent University. Consequently, it had right to admit the new students during the academic session 2013-14. Students, if already admitted cannot be denied their right to appear in the examinations on basis of impugned order.
7. Question No.2. The subsequent decision by the Executive Council in its meeting held on 25.10.2013 would not validate the impugned communication dated 29.8.2013. It is amply clear from the plain language of Statue 12.32 that the power to debar an affiliated college from taking new admissions is with the Executive Council. The resolution passed by the Examination Committee in its meeting held on 1.8.2013 could only be in the nature of recommendation and cannot, of its own, be made basis for prohibiting new admissions in the petitioner Institution. Thus, the subsequent approval by the Executive committee in its meeting held on 25.10.2013, will not validate the impugned communication.
8.(a) Question No.3 A perusal of the minutes of the meeting of the Executive Committee dated 25.10.2013 reveals that initially, on the basis of recommendation of the Unfair Means Committee, the Examination Committee in its meeting dated 20.7.2013 passed a resolution for debarring the petitioner institution from taking new admissions. On the same day, recommendations of the Examination Committee were placed before the Executive Council. However, Executive Council did not agree with the recommendations made by the Examination Committee and sent the matter back to it, for reconsideration. Thereafter, Examination Committee reconsidered the matter in its meeting held on 1.8.2013 and reiterated its decision. The recommendations of the Examination Committee dated 1.8.2013 were considered by the Executive Council in its meeting held on 25.10.2013. The minutes of the meeting of Executive Council dated 25.10.2013 reveal that after reproducing the recommendation made by the Examination Committee, the Executive Council simply approved the same, without recording any finding in terms of the Statute 12.32 where under, an Institution can be debarred from taking new admissions in particular class only if the executive council is of the opinion that the institution had failed to observe the conditions prescribed for starting such classes.
8. (b) The Executive Council plays a pivotal role in the scheme provided under the U.P. State Universities Act, 1973 and the Statutes. Even if there was recommendation of the Examination Committee, the decision of the Executive Council should reflect application of mind. It should have satisfied itself regarding infraction of the prescribed conditions. However, in the instant case, the Executive Council had simply endorsed the recommendations of the Examination Committee without satisfying whether the allegations levelled against the institution are such, that it warrants exercise of power Statute 12.32.Thus, there is a grave error in the decision making process.
8. (c) There is another aspect of the matter. The petitioner Institution was served with show cause notice dated 17.7.2013 by respondent no. 3 alleging use of unfair means. The petitioner Institution submitted reply to the same on 17.7.2013, when its representative appeared before the Unfair Means Committee. The institution denied allegations of mass copying. It seems that the respondent University thereafter gave up the charge of mass copying and impugned communication was issued, which is based on totally new allegations viz. gross mismanagement, inadequate arrangement for safe custody of examination records, discovery of unsealed answer scripts etc. Admittedly, no notice was given to the petitioner Institution on charges for which it has been debarred from taking new admissions. Consequently, there is gross violation of the principles of natural justice, as the impugned decision of the Examination Committee is based on allegations with which, the petitioner Institution was never confronted nor given any opportunity of furnishing its explanation. The Executive Council without adverting to the said aspect of the matter, simply endorsed the recommendations of the Examination Committee. Thus, the subsequent decision of the Executive Council dated 25.10.2013 is faulty and not in consonance with the principles of natural justice and is hence, not legally sustainable. In view of the above, the students admitted to the petitioner Institution, before passing of the resolution by the Executive Council, cannot be denied their right to appear in the ensuing examinations.
8. (d) Sri V.B. Mishra, in the end, made faint attempt to challenge the stand of the petitioner by contending that there is no evidence that these admissions were made before issuance of the impugned communication and also before 17.7.2013, when the proposed decision was allegedly communicated to the petitioner Institution. In paragraph 20 of the writ petition, it is stated that these admissions were made prior to passing of the impugned order and makes reference to representation dated 10.9.2013 in which, it was specifically averred that admission were made between 1st and 14th July, 2013 and attendance sheets of the said students evidencing that they were duly admitted was appended. Only reply given in the para 19 of the counter affidavit is that the Institution was informed about the proposed decision on 17.7.2013 and as such, Institution should not have taken admissions in Shastri Ist Class. There is no denial to the stand of the petitioner that admissions were made before issuance of the impugned communication. Thus, I am of the opinion that the students admitted prior to the decision of the Executive Council, cannot be debarred from appearing in the ensuing examinations.
8. (e) The decision of Executive Council could only be made applicable to admissions to be made after the passing of the Resolution dated 25-10-2013 i.e. for next academic session 2014-15. But since, the decision of the Executive Committee in its meeting dated 25-10-2013, qua the petitioner institution, has been found to be invalid and in violation of principles of natural justice and therefore, such decision will have no legal force, insofar as it relates to the Petitioner institution. Thus, even otherwise, it cannot be pressed in defence for debarring the institution from admitting the students nor can the university prevent such students from appearing in the examination.
9. As a result of the above discussion, the writ petition is allowed. The impugned communication dated 29-8-2013 is quashed. A mandamus is issued to respondent no.1 to permit 60 students of the petitioner Institution to appear in the ensuing Shastri Examination, 2014. However, it shall be open to the Executive Council to take fresh decision in accordance with law.
10. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date : 26-05-2014 skv