JUDGMENT Ravi S. Dhavan, J.
1. This writ petition has been files by the Maharana Pratap Shiksha Parishad, Gorakhpur a registered society which one time ran an educational institution as a degree college which subsequently become a constituent college of the Gorakhpur University. The petition has been filed by the society, aforesaid, through Mahant Avaidnath, Gorakhpur Math, as Secretary to the Society.
2. On facts there is no issue. Before establishment of the Gorakhpur University, it is contended, that the scheme for higher education in Gorakhpur was such that there were two colleges in this town One, the Maharana Pratap Degree College, run by the Society and the other St. Andrews College. At the time when the incorporation of the Gorakhpur University was being contemplated, the question arose on what would happen to these two degree colleges. There were discussions on the matters and the administration of St. Andrews College decided not to merge with the Gorakhpur University. The Society took a decision that its institution, the Maharana Pratap Degree College would merge with the Gorakhpur University. The Society and the Gorakhpur University were in discussions with the State Government. Consequently, after the deliberations, a covenant was signed which became an indenture by which the Maharana Pratap Degree College was to became a constituent college transferring its assets to the Gorakhpur University. In the context of this matter one of the clauses of the indenture which was registered in formality by a recorded document, the salient features were that all the assets and liabilities would be taken over by the Gorakhpur University, the Maharana Pratap Degree College, as is its name would see no change, and a member of the Society, its Shiksha Parishad would have one representative elected to be on the Executive Council of the University. This particular understanding reasons, thus :
"AND WHEREAS the Gorakhpur University through its Executive Council by its resolution No. 10 (d) dated January 3, 1958 has agreed take over all the assets and liabilities of the said college on the express condition that; (a) the Maharana Pratap Degree College with its existing name would be maintained by the University and that (b) the Shiksha Parishad will have one representative elected by the Parishad on the Executive Council of the University.
3. After this indenture had been signed on 24 September 1958, having been presented by no other person than Mr. B. N. Jha, then Vice-Chancellor and one of the members of the ecclesiastic order, that is, of the Math, representing the Society, a representative of the Shiksha Parishad, in fact, was sent to the Executive of the Gorakhpur University and participated in its deliberations.
4. The Gorakhpur University has filed a counter-affidavit The State of Uttar Pradesh has not filed any affidavit in reply to the petition.
5. The counter-affidavit of the Gorakhpur University is very shabby and no responsibility has been taken in making the averments. Such an affidavit ought to have been filed by the Registrar, instead the University has chosen to file an affidavit through a Petty clerk, a Senior Assistant at the Gorakhpur University. The them of the affidavit is that after the U. P. Universities Act, 1973 was enacted the matter does not call for any comment. The understanding between the Society and the Gorakhpur University has not been denied nor the indenture which had given the conditions on which merger would take place of the college becoming a constituent college of the University. The counter-affidavit of the Gorakhpur University does not deny that the status of the Maharana Pratap Degree College is that of a constituent college of the Gorakhpur University.
6. In paragraph 22 of the counter affidavit, a submission was made by the clerk who has been laid down Under Section 20 of the Act, aforesaid, and it does not provide for a member or a representative of the petitioner. It is submitted that there is no basis whatsover on which the petitioner claims the statutory right and that there is no question of denial of this right to the petitioner. This is reference to the Shiksha Parishad of the Society having a member on the Executive Council of the Gorakhpur University.
7. The court has heard learned counsel for the petitioner, learned counsel for the Gorakhpur University, Mr. Ramshish Ram Advocate, holding the brief of Mr. Dilip Gupta, and the Standing Counsel Mr. I.A. Khan.
8. The Court is afraid that it cannot appreciate the very narrow and restricted approach taken by the Gorakhpur University in not honouring its commitments. When it signed a covenant as a deed and indenture with the Society taking the assets and the liabilities of the college and further had given a commitment as an act of the faith that a representative of the Society will sit as a member of the Executive Council of the Gorakhpur University, in fact, this pattern as a measure of formality is recorded in the indenture. It was acted upon for several years until he U.P. State Universities to have its representative on the Executive Council. The University would not pay any attention to this aspect of the matter. Thus, this issue was brought before the High Court.
9. Section 20 shows the constitution of the Executive Council under the Act, aforesaid, is not the end of the matter. What the University has not noticed are certain reservation which have been left for being taken care of to continue the continuity of past arrangements. Section 74 of the Act declares that such arrangement whether of orders, degrees or academic citations, privilegs granted or other things would continue unless and untill they are superseded by any order made under this Act.
10. There is no lack of understanding in continuing certain arrangements by virtue of what has been declared by Sub-section (2) of Section 20, whether the University takes such situation as orders issued or been stipulated Under Section 20 on what would be the fabric of the executive Council in any University, should there be a certain abiding faith which has been reduced to a formality, the like of which are referred to Under Section 74, this cannot be ignored so easily as the Gorakhpur university has done in the present circumstances. Colleges like the one run by the Society, namely, Maharana Pratap Degree College, Gorakhpur, are part of the heritage and history of the town of Gorakhpur and once a covenant has been signed by an institution, like a University with an old educational institution, then, this faith a should be continuing and not be ordered in the manner in which it has been done. The University needed the importance of this college as its constituent, and thus adopted its as its 'constituent college' when the University of Gorakhpur itself was being set up.
11. There are adequate provisions under the Under Pradesh State Universities Act, 1973, to ensure that the indenture which the Gorakhpur University has signed with the Society by which the College became a 'constituent college' of this University that the arrangements should continue and ought to continue.
12. There are two options open for the Court to ensure that the Executive Council of the University will have a representative of the Society from its Shiksha Parishad, by issuing mandamus, but the court is restarting itself from issuing a mandamus to a premier University of the State. The Court assumes that as the board of Executive Council is constitutes of academics it should not be visited with writs from the High Court. The University should not be visited with writs from the high Court. The University should not be visited with writs from the High Court. The University should at its initiative abide by the covenant signed between itself and the Society. In every aspect of the matter educational institutions, Particularly, Universities should not seem to be in litigation in breaking old understandings.
13. As this petition is a certificate action in seeking prerogative writs, by a certiorari this court certifies that the Gorakhpur University is in error in ignoring its long standing formalised understanding under a covenant in not recognising that an institution affiliated to it as a 'constituent college' and recognised as such by law (Section 74 of the Act), may not be represented at the Executive Council.
14. The petition is allowed with costs.