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Christ Church College, Through ... vs State Of U.P. Through Education ...

High Court Of Judicature at Allahabad|23 December, 2004

JUDGMENT / ORDER

JUDGMENT Arun Tandon, J.
1. Heard Sri Ashok Khare, Senior Advocate assisted by Sri V.D. Chauhan Advocate and Sri K.C. Sinha Advocate on behalf of Christ Church College, Mail, Kanpur, Standing Counsel on behalf of all the State authorities and S/Sri. V.K. Upadhya and Ritvik Upadhya on behalf of the students in both the writ petitions. Both the aforesaid writ petitions raise common questions of facts and law and as such are being decided by this common judgment
2. Christ Church College, Kanpur is a minority institution established and managed by the Church of North India and declaration in that respect has been issued under the letter of the Joint Secretary of the State of Uttar Pradesh dated 21.05.1985 addressed to the Director of Higher Education, Uttar Pradesh. The said institution has been established in the city of Kanpur in the year 1866 and at present is affiliated to the Chhatrapati Shahuji Maharaj University, Kanpur. Petitioners Nos. 1 to 5 of writ petition No. 36372 of 2001 and respondent Nos. 4 to 15 of Writ Petition No. 46112 of 2003 are the regular students of the aforesaid Degree College. By means of Writ Petition No. 36372 of 2001 the petitioner-students have prayed for a writ if mandamus directing the College to hold the elections of the office bearers of the students Union of the College for the Sessions 2001-2002. Writ Petition No. 46112 of 2003 has been filed by the Christ Church College, Kanpur through its Principal for quashing the Government Order dated 01.09.2003 issued by the respondent No. 3, namely the Additional District Magistrate, Kanpur Nagar, and the order dated 08.09.2003 issued by the State Government, as also the Order/minutes of the meeting dated 23.07.2004 as circulated by respondent No. 3 in so far as it pertains to the petitioner-institution.
3. The dispute between the parties is as to whether in the Christ Church Degree College, Kanpur, which is minority institution, there should be a Students Union and as to whether the office bearers of such Union be elected through election by single non transferable vote. Further as to whether the Government Order issued in that regard are applicable/binding upon the minority affiliated Degree Colleges.
4. In order to appreciate the dispute between the parties it would be relevant to refer to the following facts.
5. The Christ Church Degree College, Kanpur is affiliated to the Kanpur University established under the provisions of the aforesaid act and accordingly the provisions of the State Universities Act, First Statute and Ordinances, framed thereunder by the Kanpur University are fully applicable to the said institution. It is admitted between the parties that upto the year 2000 there was a Students Union in the College, the membership fee in respect thereto was realized from the students at the time of admission, the office bearers of the said Union were elected annually by means of election through single non transferable vote.
6. According to the petitioner-institution the elected office bearers of the students union indulged in all kind of criminal activities, pressure tactics and wrongful admission of students in the institution who Were otherwise not eligible for the same; and unruly and uncalled for; violent behaviour. In such circumstances the management of the College took a decision not to hold any fresh students union election and decided to adopt alternative method for representation of the students in various activities as well as for their welfare through institution of Students Welfare Committee consisting of prefect who were nominated on various posts of the Students Welfare Committee. In view of the, said decision the College also stopped realization of any students union fee from the students. As a matter of latch in the Prospectus published by the institution it has been specifically mentioned in para 20 that the management of the College has decided not to hold any students union elections. The students in turn have been informed by the same, para 20 to abide by the Code of Conduct prescribed for the students. A copy of the prospectus for the year 2004-05 has been annexed as annexure-10 to the rejoinder affidavit.
7. On the strength of the Government Order dated 01.09.2003 the A.D.M. Kanpur Nagar forwarded minutes of the meeting which is said to have taken place in his office with the students leaders and the Principals and Managers of various affiliated degree colleges and it was informed that under the said resolution the elections of the Students Union of degree colleges including Christ Church Degree College, Kanpur shall take place between 14.09.2003 and 21.09.2003 which as followed by another letter of the State Government dated 08.09.2003 which amended the provisions of the earlier order dated 01.09.2003 and made membership of the students union compulsory for every student. Because of the aforesaid undue pressure elections of the students union are said to have taken place for the year 2003-04. (However, in view of the expiry of the term of the aforesaid office bearers it is not necessary to adjudicate upon the legality or otherwise of the said elections).
8. During the pendency of the present writ petitions another order dated 23.07.2004 was issued by respondent No. 3, namely A.D.M. Kanpur Nagar, in light of the earlier Government Orders dated 01.09.2003 and 08.09.2003 informing the petitioner-institution that the date for the elections of the students union shall be intimated within a day or two while in respect of other institutions the date of election of students union had been notified. The said order has also been challenged by the petitioner-institution.
9. On behalf of the petitioner-institution it is contended that the Christ Church Degree College being a minority institution has a fundamental right under Article 30 of the Constitution of India to administer its employees and to discipline is students. In view of the aforesaid it is always open to the College to abolish the system of election of office bearers of the students union and to adopt the alternative method of representation of students in various schemes etc. as has been done by the petitioner-institution, namely the Students Welfare Committee wherein the students are elected under prefect system. In the alternative it is submitted that the State Government has no competence to issue any directions to the Degree Colleges to hold elections of the students union and the orders issued by the State Government in that regard are wholly without jurisdiction. Further the District Magistrate/Additional District Magistrate are not conferred with any power under the State Universities Act to interfere in any manner or to issue orders to the Degree Colleges affiliated to the University. They cannot act as extra constitutional authorities and direct the degree colleges to hold elections of the students union or fix dates for the said purposes. It is, therefore prayed that the orders passed by the State Government and its, authorities dated 01.09.2003, 08.09.2003 and 23.07.2004 may accordingly be quashed.
10. On behalf the respondents it is contended that the Christ Church Degree College, Kanpur having been affiliated to the Kanpur University is obliged under law to act in accordance with the provisions of the State Universities act First Statutes and the Ordinances framed by the Kanpur University. It is submitted on behalf of the respondents that under U.P. Art No. 1 of 2004 Section 66-A has been added to the State Universities Act whereunder power has been conferred upon the State Government to issue such directions, in respect of police matters, as it deems fit but are not inconsistent with the provisions of the State Universities Act. Therefore, the directions issued by the State Government for holding the elections of the students union are legal and valid and enforceable in the eye of law. It is further submitted that this Court in its judgment and order dated 30.09.2003 passed in Writ Petition No. 43465 of 2003 Mahavidyalaya Pracharya Association v. State of U.P. has already recognized and accepted the said power of the State Government under Section 66-A. It is further submitted that there has been a students union in the petitioner-institution in existence for the last so many decades and there is no basis for the same being discontinued by the management of the college. Further in view of the judgment of this Court referred to above the College is bound to hold elections of the students union for the year 2004-05 also, even if no elections had taken place in the year 2001-02. Lastly it is contended that the right to administer the minority institution has already been explained by the Hon'ble Supreme Court in the case T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., reported in AIR 2003 Supreme Court 355: 2002(8) SCC 481 (para 138) wherein it has been held that where regulations have been framed in the interest of the institutions by the Competent authority in accordance with law the same would be equally applicable to minority institutions.
11. On behalf of the State the Standing Counsel has justified the Government Orders and the letters issued by the Additional District Magistrate Kanpur Nagar on the strength of the judgment of this Court in the case of Mahavidyalaya Pracharya Association v. State of U.P. (Supra).
12. I have heard learned counsel for the parties and gone through the record.
13. From the facts which have been noticed hereinabove basically three questions arise for consideration before this Court--
(a) Whether constitution of students union and holding of elections of students union is part and parcel of the fundamental right to education meaning thereby that it is a part of the educational curriculum?
(b) Whether the State Government in exercise of powers under Section 66-A of the State Universities Act can issue directions to the affiliated Degree Colleges for constitution of Student union and for holding the elections of its office bearers?
(c) Whether the right to administer the minority educational institution under Article 30 of the Constitution of India includes a right to frame necessary scheme for discipline etc. of the students?
Issue (a).
14. For the purposes of deciding this, issue it would be relevant to take note of the following facts:-
15. Article 41 of the Constitution of India provides that, the State shall, within the limits of economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment old age, sickness and disablement, and in other cases of undeserved want. Therefore the States are enjoined upon to take necessary action by legislation or otherwise so as to make the right of education available to every eligible person and to that extent the statutory right to education stands equal to fundamental right. The legal position in that regard has been clarified by the Hon'ble Supreme Court in the case of Miss Mohini Jain v. State of Karnataka and Ors., AIR 1992 Supreme Court, page 1858 and in the case of Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 Supreme Court, page 2178 wherein the Hon'ble Supreme Court has specifically declared that the right to education is a fundamental right and part and parcel of Articles 19 and 21 of the Constitution of India. It has been held that right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless the citizen is educated and further right to education flows directly from the right to life. The dignity of an individual cannot be assured unless it is accompanied by the right to education.
16. The education to be imparted by the University is not confined to development of mind only. It also means development of over all personality of the student so as to become a useful member of the society. The education equally has social elements. Education to prepare the individual participate in the democratic process which is the very life of the nation and training of the students in democratic process is achieved partly through the students unions.
17. The importance of the students union was considered by the Kothari Committee constituted under the resolution of the Government of India dated 14.07.1964 the Chairman, whereof was Prof. D.S. Kothari, the then Chairman of the University Grants Commission formerly Professor and Head of Department of Physics in Delhi. University. The Kothari Committee which comprised of various legal luminaries made its recommendation through its report submitted in the year 1986 for all round development of education and in paras 11.73 and 11.74 of the report it was recommended as follows:-
"11.73. Student Unions- Student unions represent an important way of providing student participation in university life outside the class room. Properly organized, they help in self-government and self-discipline, provide a healthy outlet for students energies and give the students useful training in the use of democratic methods.
11.74. It is for each university to decide how its students' union will function and we would welcome a good deal of experimentation. But some broad principles can be indicated.
(1) Membership of the student unions should be automatic in the sense that every student should be presumed to be its member. But every student should be expected of choose at least one activity organized in the institution, e.g. arts society, football club drama association, etc., and pay the required subscription. There should be no separate payment for the membership of the students' union as such. Each of the activities will thus have funds of its own and these would be handled by appropriate committees. The funds of the central union - to the extent they are needed - would be formed by contributions from each activity committee. The university or college should also aid to the central union as well as to the different activities.
(2) It may be desirable to elect the office-bearers, not directly by the large body of students (many of whom are fresh men), but indirectly by the different students' societies in the university who would send selected representatives to the union executive.
(3) There should be some disqualifications for office-bearers. For instance, persons who have spent two or more years in the same class should be disqualified.
(4) The successful working of student unions depends to a large extent upon the mutual trust and confidence between the teachers and the students. Greater teacher involvement in union activities should, therefore, be ensured. We would strongly commend the establishment of a university or college union in which all teachers and students automatically become members. All committees of the union and various activity groups should have teachers on them and it should be their responsibility to guide the students tactfully on right lines without curbing their freedom to decide for themselves."
18. From the aforesaid report of the Kothari Committee it is apparent that useful training in the democratic methods was held to (sic) integral part of all round education through participation in the activities of the students union.
19. For the purposes of securing the means of complete education the Uttar Pradesh State Universities Act, 1973 has been framed by the State Legislature. For all round education, self governance, self discipline and participation in the University life outside the class room formation of union is but necessary. It has not been disputed nor it has been in fact questioned by the petitioner that in order to achieve development of over all personality of the student for his ultimate development as a useful member of the society education cannot be confined to knowledge and studies which is imparted in the class rooms and therefore, participation of the students in the college life outside the class rooms must be permitted to properly organize in self governance and self discipline. Students union provide healthy outlet for students energies and gives training for development of democratic method. Having recognized the students union to be a part and parcel of overall education of the students it is yet to be seen as to whether holding of students union's elections is also a necessary part of the aforesaid complete education. As has already been recommended by the Kothari Committee referred to above it is not necessary that the office bearers of me students union be elected directly by the process of single non transferable vote. Representation of the students can be done indirectly by different student societies of the universities. It is worthwhile to notice that the Hon'ble' Supreme Court in the judgment reported in 2000 (10) SCC page 648 (University of Delhi and Anr. v. Anand Varhdan Chandal) has specifically held that right to education does not include in its ambit the right to contest the union elections. It has been held that right to participate in the University elections is only a statutory right. For ready reference the relevant para 4 of the aforesaid judgment is reproduced below:-
"We are of the view that the High Court fell into patent error in holding that once the University admits a student, the right to contest the students union elections is a part of the right to education and as such is a fundamental right. This Court in N.P. Ponnuswamy v. Returning Officer, Namakkal Constituency (AIR 1952 S.C. 64: 1952 SCR 218) (SCR at page 236) has authoritatively held that right of participate in elections to the State Assemblies and Parliament is not a fundamental right. It is only a Statutory right. Participation in the students' union activities including elections cannot be placed on higher pedestal."
20. It is thus established beyond doubt that right to contest the elections of the students union has not been held to be a part and parcel of right to education. In such circumstances the provision for students union of r the purposes of participation of the students in the activities of the college cannot be extended to include within its ambit the right to elect the office bearers through election or a right to insist upon the institution (Degree College) to hold elections of the office bearers of the students union. Reference may be had to the judgment reported in AIR 1988 M.P. page 90 (Sanjay Jain and Ors. v. The State of Madhya Pradesh and Ors.) wherein a Division Bench of M.P. High Court has specifically held the right of the Principals of the Colleges and Vice Chancellors of the Universities to appoint office bearers of the students union to be legal and valid and such a provision does not violate any of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. Similarly this Court in the judgment reported in 1993 UPLBEC 1663 (Anand Pradhan and Ors. v. Vice Chancellor, B.H.U., Varansi and Ors.) has held that right to form an association and to be elected as office bearer of such association are distinct rights. It has specifically been held that an association which come into existence under certain statutory provision, the members of such association cannot claim any right which is not conferred upon them by the statute. It would be worthwhile to reproduce para 18 of the aforesaid judgment which reads as follows:-
"18. The right to form association and the right to be elected to an office of such association are distinct rights. As association which comes into existence under the Constitution, the members of such association cannot claim any right which is not conferred upon them under Constitution. The constitution of Students' Union itself empowers every student of the Union to become member of the Union. Their rights are not affected to form association. They have not been deprived of any right to form association as provided under Article 19(1)(c) of the Constitution of India. The right to form association, however, does not confer any right on students to be elected as office bearers of the Union. Their right to be elected as office bearers is governed by the Constitution of the Students' Union. If an association is formed and it is governed by its Constitution which provides for the manner of election of office bearers or an office of the Union, every member is bound by the said Constitution. The right is based on the election. There is no legal right in any person to claim eligibility to be elected as office bearer of an association. They are governed by the conditions and procedures prescribed for election in the Constitution."
21. To sum up, the legal position in that regard is that right to elect or to be elected is neither a fundamental right nor a common law right. It is simply a statutory right. Outside the statute there is no right to elect or to be elected and no right to dispute the election. From the aforesaid legal position it cannot be disputed that to form a students' union may be a part and parcel of the complete education to be imparted by the University and therefore a part of its curriculum. However, right to get the elections of the office bearers of the Students Union held is not a part of the said right to education.
Issue (b).
21. The aforesaid issue has been decided by this Court vide judgment and order dated 22.12.2004 passed in the group of writ petitions, the leading Writ Petition being No. 45264 of 2004 (Committee of Management S. M. College, Chandausi, District Moradabad and Ors. v. State of U.P. and Ors.).
22. In view of the aforesaid legal position this Court has no hesitation to hold that the State Government under Section 66-A of the State Universities Act has a power to issue directions to the Universities in respect of its policy matters but such power of the State Government cannot be extended for the purposes of issuing directions to the affiliated degree colleges nor the State Government can direct the University to frame ordinance for the purpose of getting the elections of the Students' Union in degree colleges held. This issue is answered accordingly.
Issue (c):--
23. So far as fundamental right guaranteed under Article 30 of the Constitution of India in respect of minority institutions established and administered by the minority is concerned reference may be had to paragraphs 50, 54 and 55 of the Constitution Bench judgment of Hon'ble Supreme Court in T.M.A Pai's Case (supra). Relevant portions of the said paragraphs 50, 54 and 55 are quoted below:-
"50. The right to establish and administer broadly comprises of the following rights:-
(a) to admit students;
(b) to (e)..."
" 54. The right to establish an educational institution can be regulated; but since regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-admission by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions."
"55. ... There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a pre-requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the Government-aided institutions."
24. Reference may also be had to paragraph 9 of the judgment of Hon'ble Supreme Court in the case of Islamic Academy of Education and Anr. v. State of Karnataka and Ors., (2003)6 SCC 697, the relevant portion whereof is quoted below:--
"...However, on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice."
25. From the right to administer the minority institutions so recognized by the Hon'ble Supreme Court of India it cannot be disputed that right to discipline the students admitted in the minority institutions is also included therein and in such circumstances a minority institution has every right to decide as to how the students would be represented in various activities of the college both in the class rooms and outside the class rooms and as to which is the best method in the circumstances prevailing in the college for the purposes of ensuring the representation of the students including constitution of the students union. In exercise of the right to administer the minority institution the management of the petitioner-institution has taken a decision to abolish the process of holding of elections of the students union, specifically in the back ground of the complaints which have been stated in detail in the writ petition, it cannot be said that the decision so taken by the management of the petitioner-institution is either arbitrary or unjustified. Further the said decision of the representation of the students through prefects system is also a well known and recognized mode of representation of the students for various activities of the educational institutions for providing over all development of students. The said mode to nominate the office bearers has been recommended at the time of establishment of the students union itself by the Kothari Committee referred to above.
26. This Court does take judicial notice of the prevailing circumstances wherein the elections of the students union are held in various universities and degree colleges resulting in mass violence, participation of political parties through back door, misuse of administrative machinery and involvement of unauthorised expenditure towards posters and pamphlets etc., increasing tendency to win the union elections by hook or crook. In order to maintain the purity of the educational life it is desirable that the authorities must consider some alternative mode for election of office bearers of the students union instead of present system of election by single non transferable vote.
27. The District Magistrate/Additional District Magistrate have no authority of law under the State Universities act or under the Statutes or Ordinances framed thereunder to interfere in any of the matters of the affiliated Minority Degree Colleges. The District Magistrate/Additional District Magistrate cannot act as extra constitutional authorities and therefore they should restrain themselves from indulging in the affairs of affiliated Minority Degree Colleges including the issue of elections of the students' union. The matters of the University or affiliated degree colleges including the elections of the students union should be left to be taken care of by the educational authorities and no interference should be made therein by the executive authorities.
28. In view of the aforesaid the orders issued by the Additional District Magistrate dated 23.07.2004 as well as Government orders dated 01.09.2003 and dated 08.09.2003 which provide for election of office bearers of the Students' Union in affiliated Minority Degree Colleges, cannot be legally sustained and are hereby quashed. A writ of mandamus is issued commanding the respondents not to force the petitioner's institution to hold elections of the office bearers of the Students' Union.
29. The writ petition No. 46112 of 2003 is allowed and Writ Petition No. 36732 of 2001 is dismissed.
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Title

Christ Church College, Through ... vs State Of U.P. Through Education ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
23 December, 2004
Judges
  • A Tandon