JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard learned Counsel for the petitioners-appellants, learned Standing Counsel appearing for respondent Nos. 1 and 2. Sri Anil Tiwari, learned Counsel appearing for respondent No. 3 and Sri Vinod Kumar learned Counsel appearing for respondent No. 4.
2. Although for the details of the facts we respectfully refer to the judgment of the Hon'ble Single Judge passed against the writ petitioners-appellants on the 14th December, 2005, with the greatest of respect. We are unable to agree with his Lordship's findings.
3. The very short facts which are material are these. The appellant Handia College was originally affiliated to the Kanpur University; the location of the College is Allahabad, some 250 kms, away from Kanpur.
4. Thereafter, some 15, 16 years ago, it got affiliated to the Purvanchal University. In substance the appellant wishes to remain affiliated to the Purvanchal University which is about 80 kms, from its geographical location. It claims that in law it is still affiliated to that University, and not to Kanpur University and the communications made contrary thereto dated 30.11.2004 coining from the Higher Education Secretary of the State Government and the letter of the Vice Chancellor of the Purvanchal University dated 18.1.2005 issued in consequence should be declared to be quashed and to have no effect with regard to the appellant.
5. The manner in which the affiliation of the appellant changed is important.
6. Under the Act which is the U.P. State Universities Act. 1973 Colleges are affiliated to different Universities on the basis of territorial jurisdictions awarded and these territorial jurisdictions have more, perhaps the only rational connection with the schedule mentioning the colleges.
7. An Ordinance was issued for the first time in 1990 which sought to insert Section 5(1-A) to Section 5 of the Act. The words of the said Ordinance are set out below:
(1-A) (a) Notwithstanding anything contained in Sub-section (1), from such date as the State Government may, by notification, appoint in this behalf, in respect of Handia Degree College in district Allahabad, instead of the University of Kanpur, the Purvanchal University shall, exercise the powers conferred on a University under this Act and thereupon the Schedule shall stand amended accordingly.
(b) The notification under this sub-section may provide for such other, transitory, supplemental, incidental and consequential provisions as the State Government may deem necessary, for the implementation of the provisions of Clause (a).
8. Although no notification was issued under the said Ordinance, and it lapsed, under a similar Ordinance issued in 1991, a notification was issued on the 30th March, 1991 which is set out at page 76 of the annexures before us. The said notification is quoted below:
No. 437/XV-X - 91 - 15 (106) -89 Dated Lucknow, March 30, 1991 In exercise of the powers under Sub-section (1-A) of Section 5 of Uttar Pradesh State Universities Act, 1973 (President's Act No. 10 of 1973) as re-enacted and amended by the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974 (U.P. Act No. 29 of 1947) hereinafter referred to as the said Act and all other powers enabling him in this behalf the Governor is pleased to appoint March 30, 1991 as the date from which instead of University of Kanpur the Purvanchal University shall exercise the powers conferred on a University under the said Act in respect of Handia Degree College in District-Allahabad and to direct that.--
(1) every student of the said college admitted or likely to be admitted in academic session 1990-91 in part-I classes of any under graduate degree or B.Ed. degree and is studying for or was eligible to appear in examination in the said class for a degree of Kanpur University, after issue of this notification, shall be deemed to be admitted or likely to be admitted and be eligible to appear in the examination for a degree of Purvanchal University.
(2) every student of the said college in the current academic session admitted or likely to be admitted in Part-II or Part-Ill classes of any undergraduate degree and is studying for or was eligible to appear in an examination in the said classes for a degree of Kanpur University, shall be eligible to appear in an examination conducted by Kanpur University for a degree where upon Kanpur University will declare the results and on that basis Purvanchal University will be competent to award degree to the successful candidates.
9. In 1992, no other notification was issued to the same effect but another Ordinance was issued to the same effect; although separate notification was issued under that once again, however the Ordinance contained a saving clause to the following effect.
5. Repeal and saving.-- (1) Uttar Pradesh State Universities (Amendment) (Second) Ordinance, 1991 (U.P. Ordinance No. 23 of 1991), is hereby repealed.
(2) Notwithstanding such repeal and thing done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in Sub-section (1) or by the Uttar Pradesh State Universities (Amendment) Ordinance, 1990 (U.P. Ordinance No. 11 of 1990), or by the Uttar Pradesh State Universities (Second Amendment) Ordinance, 1990 (Third Amendment) Ordinance, 1990 (U.P. Ordinance No. 26 of 1990), or by the Uttar Pradesh State Universities (Amendment) Ordinance, 1991 (U.P. Ordinance No. 11 of 1991), shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Ordinance, as if the provisions of this Ordinance were in force at all material times.
10. The simple and single point before us is whether the affiliation granted to the College on the basis of the single notification issued in 1991 had the effect of surviving both the 1991 Ordinance and the 1992 Ordinance.
11. After 1992 no further Ordinances were issued. As a matter of fact, perhaps better put as dc facto, the appellant continued to remain affiliated to the Purvanchal University and all examinations of the students were through the said University, between 1998 and 2002, some Rs. 18 lac was deposited by the College, under the several heads including security, this time again with the Purvanchal University.
12. The said two letters by the Secretary and the Vice Principal challenged by the College seek to place the College again with the Kanpur University on the basis of the schedule or the geographical location of the main Act.
13. The issue is whether the Secretary had power to affect such a change or whether such a change could be effected, if at all without at least by the issuance of another Ordinance and the exercise of power thereunder.
14. The Hon'ble Single Judge has opined that the exercise of power by the Governor under the notification mentioned above was no doubt valid but its validity went on for only so long as the 1991 Ordinance survived.
15. The 1992 Ordinance contained the saving clause but after the lapse thereof the notification had no legs to stand upon and simply expired or lapsed with the lapse of the Ordinance or the saving Ordinance under which it was brought into existence or continued in operation.
16. His Lordship has referred to several authorities of binding nature and we are the respectful opinion that the dicta in those authorities have to be followed by us also.
17. Respectfully reading those in the manner we do, we are of the opinion that issues of the present nature are basically issues of construction. It is fundamentally important to look at the terms of the empowering Ordinance and the terms of the notification issued under the Ordinance. If the words indicate a time limit for the effect of the notification to continue, and the words indicate that after some such time limit, may be the life period of the Ordinance itself, the notification shall lapse, then so it will.
18. On a plain reading of the words, we find no such indication of time limit nor do we find any indication that the effect if the power exercise under the Ordinance shall remain only so long as the Ordinance remains alive.
19. The other point to note in these matters is whether the object achieved under the notification is itself by its very nature usually a temporary one or a permanent Act. Students can go to one College and then to another College or to one University and then the another University for a course and from that point of view a student is temporarily studying in a particular institution But usually Colleges do not hope Universities like students sometime hope Colleges. As such affiliation of a College to a University is itself something which is/of a permanent nature. Various associations grow up as between a College and the University to which it is affiliated. Unless there are strong factors to the contrary it would be a matter of considerable disturbance to an educational system if a College were to be disaffiliated from a University and affiliated a new to another after a lapse of some 15 or 20 years.
20. The third aspect is a common sense aspect. It is very difficult to define common sense or play down any settled principles of its application. However, the Court has enough said that in the ultimate result the common sense view of the many matter dictates the result which practically to be favoured by the law; on this aspect of common sense, his Lordship has directed that certain subjects of the College will continue to remain, so to speak affiliated to one University for the purpose of examinations and certain other subjects will go over to the other University. No doubt it would be an interim measure but for this interim period, the College would have a sort of double affiliation.
21. We are of the opinion that a double affiliation is to be avoided if possible. We are further of the opinion that the common sense view prefers affiliation of the College to the more proximate University, geographically speaking to which it has remained affiliated for nearly two decades and there has been no complaint or problem felt either by the Purvanchal University or the Kanpur University from which the College had broken away.
22. For these reasons the appeal is allowed; the judgment under appeal is set aside; the impugned communications are quashed and declared to have no effect, so far as the appellant is concerned. The appellant's College will continue to remain affiliated to the Purvanchal University; this does not mean that we can or do curb any of the legislative powers of any authorities which possess the same that the 1992 saving ordinance was issued without any necessity is neither here nor there.