ORDER D.K. Seth, J.
1. The orders dated 15-4-1999 and 12-4-1999 being Annexures 3 and 9 issued by the Registrar of the M.J.P. Rohilkhand University, Bareilly and Vice-Chancellor of the same University respectively are the subject-matter of challenge in this writ petition.
2. Before Mr. R.N. Singh, learned counsel for the petitioner opened the case Mr. P.N. Saxena, learned counsel for the respondents had took two preliminary objection. First that there was no ordinances of the University and the alleged ordinances, on which reliance has been placed to support the case of the petitioner, does not exist, so there is no question of any cause of action for the petitioner to maintain the writ petition. He secondly contended that, as pleaded in paragraphs 2 and 3, the writ petition has been sought to be moved as a public interest litigation, whereas the relief claimed on the basis of the facts pleaded it shows that it was in effect a relief personal to the petitioner No. 2 which is being sought to be obtained, therefore, on the principle on which the public interest litigation could be maintained cannot be attracted in the present case since it was the personal interest of the petitioner No. 2 which has been sought after through the purported public interest litigation. He then contended that even if the ordinances, assuming but not admitting, are in existence the orders passed by the University and by the Vice-Chancellor respectively are not contrary to the provisions contained in the alleged ordinances. In course of the submission he has elaborated his argument. He has referred to the ordinances and the State Universities Act as to the mode and method as to how ordinances are made.
3. Mr. R.N. Singh learned counsel for the petitioner on the other hand contends that the ordinances are very much in existence and valid and the claims are within the scope and ambit of the ordinances. The said two impugned orders could not be issued since those orders are diametrically opposite to the provisions contained in the statute. He further contends that in view of the provision contained in the statute it is the Director who had undertaken all the procedure for admission and the activities by her could not have been interfered with, except in accordance with the said ordinances. With regard to other points he contends that the petitioner in his rejoinder affidavit has given up the cause of Public Interest Litigation, on the other hand, she has insisted that the same should be treated as a writ petition personally effecting her personal legal right. In course of his argument he has submitted a oral prayer for deletion of paragraph Nos. 2 and 3 of the writ petition and had argued the case as a writ petition moved by an individual both by the petitioner No. 1 as well as by petitioner No. 2 on their individual right and not a public interest litigation. Mr. Saxena however on this issue did not oppose the prayer for deletion of the said two paragraphs and he addressed the Court on merit of the case. Mr. Singh also elaborated his argument and drew my attention to various provisions of the State Universities Act as well as the ordinances.
4. The respective arguments can be touched as far as necessary for the purpose of determining the question involved in this case.
5. I have heard learned counsel for the parties at length.
6. The short question that falls for determination is as to whether there is any existence of any ordinance or not. The first question, which was raised by Mr. Saxena about the existence of the ordinances, was sought to be substantiated with the aid of Section 52 of the State Universities Act. He pointed out that this is an ordinance related to the Institute of Advanced Studies in Education (Faculty of Education and Allied Sciences). According to him under Sub-section (2) of Section 52 of the State Universities Act the University having been established after the State Universities Act, the First Statute is to be made by the State Government by notification in official gazette. Admittedly in the present case the First Ordinance has neither been notified in the official gazette nor has been enacted by the State Government. On the other hand by a notification dated 15-2-1975 it was provided that until first ordinances of the Rohilkhand University are made the statutes and ordinances and regulations of the University of Agra shall, mutatis mutandis and with such adaptations as may be made by the State Government from time to time by notification in the Gazette, govern the affairs of the Rohilkhand University. According to him, thus the first ordinance is yet to be made, the said notification cannot be treated to be the first ordinance because the notification itself provided that until the first ordinance is made. He relies on Sub-section (3) of Section 52 and contends that by reason thereof new or additional ordinance could be made or the ordinance may be amended or repealed as are mentioned in Sub-section (2). But unless there is a first ordinance under Sub-section (2) there is no scope for amendment or repealing the same. At the same time, there could not be making of any new or additional ordinance. Therefore, the alleged ordinance has no existence in the eye of law. Secondly, he contended that the ordinance is to be made under Sub-section (3) by the Executive Council on the basis of the draft proposal of the Academic Council. But here in this case, only a sub-committee had approved the draft. There was no resolution of the Executive Council or Academic Council as such. From Annexure CA-2 and CA-3 of the counter affidavit, he had pointed out that those are minutes of the resolution of the sub-committee.
7. This question has been replied by Mr. Singh relying on Section 44 which empowers the University to establish one or more Institutes to organise and conduct teaching and research in any subject and the Institute is an Institute within the meaning of Section 44 and the ordinance is related to such Institute. He not only opposed the contention that Sub-section (3) is not wholly independent of Sub-section (2) of Section 52 to the extent that unless there is First Statute there cannot be any additional or new statute but he went ahead and submitted that new statute or fresh statute can be made even without the First Statute.
8. From the facts it is apparent that there has been an ordinance which has been forwarded for approval to the Chancellor and there is a communication made on 1-5-99 (Annexure CA-4) from the office of the Chancellor that there is no scope for approval of the ordinance. Thus, it shows that the allegation of Mr. Saxena that the ordinance is a forged one and are waste paper cannot be taken to be correct. What would be the validity of the ordinance is a matter to be decided later on. At this stage there is no doubt that these were on record. Whether there was any infraction of law in making the ordinance or not is a question to be gone into but the fact remains that there is an ordinance on record. Mr. Singh had drawn my attention to Annexure-RA-6 and 7 which clearly shows that these are different from those of Annexure-CA 2 and 3 referred to by Mr. Saxena which are admittedly minutes of the sub-committee but Annexure RA-6 and 7 are the minutes of the Academic Council and Executive Council respectively. Therefore, it cannot be said that the draft was not approved by the Academic Council and not accepted by the Executive Council. Now so far as the procedure provided in Sub-section (3) with regard to the role played by Executive Council and Academic Council respectively for the framing of the ordinance appears to have been satisfied.
9. Now the facts remain that this University: was created sometime in 1975 and that the first ordinance of the Agra University has been adopted by notification dated 15-2-1975 until first ordinance of the Rohilkhand University is made. Thus it appears that almost 24 years have passed but the State Government has not made the first ordinance so far. Now so long the first ordinance of the Agra University is adopted by fiction, it is to be treated that the first ordinance has been made by adaptation. The University is governed by the ordinance and it cannot be run without the ordinance. There must be some law, which will govern the ordinance. There cannot be any void. The University cannot run the administration without the ordinance. The adaptation that has been made is being continued for the last 24 years even if technically it can be said that the first ordinance has not been made and is yet to be made but that would be too technical approach for the Court to adopt. Though it is not necessary as to what would be the extent of the contention raised but for the time being in the absence of the first ordinance being made under Sub-section (2), the adaptation has to be treated by fiction as the first ordinance. Until first ordinance is made; the entire administration of the University cannot be asked to wait nor it can be conceived that the advancement of the education programme shall wait till the first ordinance is made technically. Admittedly, the Institute has been constituted and has been functioning right from 1975 and already the course and curriculum are running and has earned reputation. Be that as it may, the education process, which is being carried on, cannot be stalled or withheld. The civilisation survives through its development and progress. Advance studies are meant to cater to the need of the society.
10. In the present case, therefore by fiction the first statute having been made through adaptation until technically a viable first ordinance is nude in terms of Sub-section (2), it is open to the Executive Council and Academic Council to exercise c power under Sub-section (3). By reason of such situation, the power under Sub-section (3) cannot be conceived to remain in an inanimated condition and remain in permanent incubation and hybernation. The first ordinance is meant for the university. The university is not meant for the ordinance. The ordinance is meant for the purpose of running the University, which is the sole purpose and object for establishing the University. Therefore, I am unable to agree with the contention of Mr. Saxena the extent that until first statute is made under Sub-section (2), the Executive Council and Academic Council cannot resort to Sub-section (3).
11. Now it is to be seen whether the ordinance made by the Executive Council and the Academic Council would have any existence in the eye of law as contained in communication dated 1-5-99 that the same has not been approved by the Chancellor and it has no existence in law since there is no scope for grant of approval to the ordinance in the absence of any first ordinance is being made under Sub-section (2). As I had already observed even without the first ordinance, by reason of adaptation, in fiction, there is an existence of first ordinance by adaptation and as such Sub-section (3) ceases to be in incubation and is operative.
12. Now even if it is so then it is to be seen whether without the approval of the Chancellor such ordinance can be effective or not. It appears from Section 50(5) of the Slate University Act that so far as the statute are concerned, the same becomes effective only when it is assented by the Chancellor from the date of his assent or from a date, later, specified by him. Whereas there is a remarkable distinction in respect of the procedure as to how ordinances are made provided in Section 52, which does not require such approval or assent of the Chancellor. According to Sub-sections (5) and (6) of Section 52, ordinances are effective irrespective of the approval of the Chancellor, prior or subsequent, subject to Sub-section (6), which provides only to the extent is is disapproved by the Chancellor, the ordinance would become void. In the present case the Chancellor has not disallowed either whole or part of the ordinance. Therefore, Sub-section (6) cannot be attracted in the present case. Since the Academic Council and Executive Council respectively approved the ordinance and had placed before the Chancellor as back as in 1995 in the absence of any disallowance communicated by the Chancellor in terms of Sub-section (6) of Section 52, it cannot be said that any part of the said ordinance is void.
13. Thus on this ground also, I am unable to accede or agree with the contention of Mr. Saxena though argued very attractively at one point of time almost leading me to think in terms of his argument.
14. Now the ordinance as observed having an existence in law could very well be relied upon by the petitioner to advance their legal right with regard to the respective orders. Now let us examine as to how far Mr. Singh has been able to drive his point with regard to the first order contained in Annexure-3. So far as the order contained in Annexure-9 the same may be examined later on.
15. So far as the first order is concerned which relates to return of certain sum of money by the Director as asked by the University in the said order. The said order appears to have been issued on the ground that the regular Vice-Chancellor had taken over. Therefore it is necessary to examine as to what is the role of the Vice-Chancellor in relation to the entrance test and the admission to the Institute. In the ordinance 4.04 it is provided that there should be an All India Entrance Test and that the University would arrange for conduct for entrance test. In sub-paragraph (4) it has been provided that all requests are to be addressed to the Director and the application form are also to be received from the Director and also to be submitted to the Director and all contacts to be made in the office of the Director as is apparent from sub-paragraphs (7) and (9) of Ordinance of 4.04. Ordinance 4.06 prescribes Committee for the Admission Test of which the Director shall be the Chairman. Sub-paragraph (2) of the said Ordinance relates to confidential matter including the appointment of paper-setters moderators, examiners and mode of evaluation if required, of an external agency or agencies for any purpose relating to the entrance test or the processes preceding or subsequent thereto is to he considered by the Vice-Chancellor in consultation with the Director in accordance with the regulations framed by the Admission committee. Therefore, the scope and role of the Vice-Chancellor is confined to that of supervision with regard to the confidential matter that too in consultation with the Director. Nothing has been provided in the said ordinance to which my attention has been drawn that the Vice-Chancellor has any role independent of the Director or he can do anything without consulting the Director. The Vice-Chancellor has also not been involved in the Admission Committee. Inasmuch as Regulation 4.06 prescribes that the Admission Committee shall consist of the Director as Chairman, one Reader, one Lecturer of the Institute who are members of the Board of Studies or Faculty Board or Academic Council and one representative of the Schedule Castes/Schedule Tribes and one representative of the other backward classes who are either teachers of the Institute belonging to these categories or from other faculties. Thus in regard to the Committees for Admission Test the Vice-Chancellor has not been involved except what is provided in sub-paragraph (2). Sub-paragraph (3) empowers the committee so constituted for entrance test to decide the matters pertaining to the conduct of the test and the valuation of the application forms for other weightage thereof. And the same has to be carried out in the convenership of the Chairman of the Committee. The Vice-Chancellor is involved only under sub-paragraph (6) to the extent that with regard to the approval of the honoraria payable for the works related to entrance test, that too according to the decision of the Executive Council of the University subject to the maximum limit as prescribed. Thus the scope and power of Vice-Chancellor has been confined to the extent indicated in the Ordinance. He cannot exercise his jurisdiction in the matter of entrance test and admission as provided in the said ordinance.
16. Then again the Ordinance 2.09 providing the powers of the Director does not include any financial power on the Director himself. The financial power as provided in sub-paragraph (4) providing that Director has to bring the financial and other needs of the Institute to the Finance Officer and the Vice-Chancellor from time to time. Therefore, it is the Finance Officer or the Vice-Chancellor when apprised of the financial need by the Director or to take steps or sanction financial matters. Therefore, even if a sum of Rs. 9,50,000/- and odd as mentioned in the said order is at the hands of the Director he has to inform the Finance Officer and Vice-Chancellor as to the need of the said amount, if not already intimated. It is submitted by Mr. Singh that this amount is required for the purpose of conduct of entrance test and a part of which has already been spent and the rest is lying in the account of the University. If it is so, it is incumbent on the Director to submit the account. If he requires further amount he may inform the Finance Officer or the Vice-Chancellor as the case may be and the Financial Officer or the Vice-Chancellor may make available such amount to the Director for the purpose of conduct of entrance test and the admission of the students pursuant to the process already initialed long before. There should not be any hindrance in smooth conduct of the entrance test. All concerned should endeavour to the welfare of the University and should co-operate and co-ordinate with each other and the Director is also not expected to exceed his jurisdiction with regard to the financial matter and should submit to the Finance Officer or the Vice-Chancellor and the Vice-Chancellor and Finance Officer should also act in aid of the entrance test so that there is no hindrance in the process of admission. Therefore, the order contained in Annexure-3 should not be treated to be an order for refund but shall be treated in the manner as observed hereinbefore.
17. So far as the order contained in Annexure-9 is concerned it appears that by virtue of the said order the Director has been appointed as Coordinator and some one has been appointed as Assistant Co-ordinator. The ordinance does not provide for appointment of Co-ordinator. The Ordinance prescribes that the Director shall be the Chairman of the Admission Committee. That position cannot be altered by the Vice-Chancellor through his executive order without any provisions in the ordinance with regard thereto. The admission committee is to be constituted according to the ordinance 4.06 and there is no provision for appointment of Co-ordinator or Assistant Co-ordinator. However, it is an accepted proposition that the Vice-Chancellor has every right to deal with the confidential matter as provided in sub-paragraph (2) as provided in Ordinance 4.06 in consultation with the Director and he may take appropriate decision. If it is so necessary it will be open to the Vice-Chancellor to consult the Director and take appropriate decision. In such circumstances, the Director shall also co-operate and abide by the decision of the Vice-Chancellor in respect of confidential matter as and when such decision by the Vice-Chancellor is taken in consultation with the Director. Therefore, the order contained in Annexure-9 cannot be sustained and as such is quashed. However, the quashing of the said order will not prevent the Vice-Chancellor to consult the Director in respect of confidential matter within the ambit of the sub-paragraph 4 of Ordinance 4.06 and take decision with regard there to and instruct the Director accordingly.
18. The writ petition is thus disposed of.
19. However, there will be no order as to costs.
20. Let a certified copy of this order be supplied to the learned counsel for the parties on payment of usual charges within three days.