1. RULE.
Mr. A.R. Thacker, learned advocate waives service of Rule for the respondent University. With consent of the parties, the matter is taken up for final hearing forthwith.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner in capacity of the Managing Trustee of the trust has prayed for the following reliefs:-
"(A) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent University to accept the Enrollment forms of the students of First Year and Examination Forms of both First Year and Second Year students studying in the College in both the discipline of Arts and Commerce and further permit them to sit in the exams which are to be held from 2.12.2011.
(B) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the University to conduct the Semester Exams for the students of Second Year Arts & Commerce who could not give the exams conducted by the University on 22.11.2011.
(C) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the University to accept Examination forms for the students of Third Year in Arts and Commerce whose exams will be conducted in March, 2012.
(CC) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent University to permit the students of the 1st year and 2 year of Arts and Commerce of the said college of the petitioner respectively to pursue their studies for the 2nd semester and 4th semester respectively in the current academic year 2011-12.
(D) Pending hearing and final disposal of the present petition, this Hon'ble Court be pleased to direct the University to accept the Enrollment forms and Examination Forms of the students of First Year, Second Year and Third Year studying in the College in both the discipline of Arts and Commerce and further permit them to sit in the concerned ensuing exams.
(DD) That pending hearing and final disposal of the present petition, this Hon'ble Court be pleased to direct the respondent University to permit the students of the 1st year and 2nd year of Arts and Commerce of the said college of the petitioner to pursue their studies for the 2nd semester and 4th semester respectively in the current academic year 2011-12.
(E) That this Hon'ble Court be pleased to pass such other further orders as the nature and circumstances of the case may demand."
3. The facts emerging out of the record of this petition are that the petitioner is a trust registered under the provisions of the Bombay Public Trusts Act, 1950 and it runs a College in the name of M.D. Kahor Arts & Commerce College at Vadia in Amreli District.
4. The petitioner was granted affiliation with the respondent University and, as certain irregularities were found, by an order dated 13.12.2010 the authority of the State Government passed an order of closure of the College on various allegations and irregularities committed by the college authority. The said order dated 13.12.2010 was challenged by way of filing Writ Petitions being Special Civil Application Nos.3043 of 2011 and 10660 of 2011, wherein even the students were party respondent, this Court (Coram: Hon'ble the Acting Chief Justice Mr. Bhaskar Bhattacharya and Hon'ble Mr. Justice J.B. Pardiwala) vide judgment and order dated 14.11.2011 allowed the said writ petitions and as informed, the said issue is yet pending before the State Government.
5. As the respondent University refused to enroll the students sought to have been admitted by the petitioner College and as such the students were not permitted to appear in the semester examinations that were held as per the schedule of the respondent University, the present petition is filed.
6. It is an admitted position that the State Government withdrew the affiliation of the College run by the petitioner as contemplated under Section 39 of the Saurashtra University Act vide order dated 13.12.2010, as aforesaid. The Writ Petition was filed by the petitioner being Special Civil Application No.3043 of 2011 challenging the said order on 21.2.2011 and the same was moved for admission on 9.3.2011, wherein this Court issued notice making it returnable on 28.3.2011. The present petition is filed on 25.11.2011 and the programme of examination was published on 4.11.2011. Therefore, when the petitions were pending before the Division Bench filed by the present petitioner, the said fact was not pointed out by the petitioner.
7. It further transpires from the record that after passing of the said order vide communication dated 16.11.2011, the trustee of the petitioner trust sent a request to grant enrollment and to accept the examination forms of the students. Further, by a communication dated 21.11.2011, a similar request was made to the Vice Chancellor/Controller of Examination of the respondent University.
8. Heard Mr. D.C. Dave, learned Senior Advocate with Mr. P.A. Jadeja for the petitioner and Mr. A.R. Thacker, learned advocate for the respondent University.
9. Mr.
D.C. Dave, learned Senior Advocate for the petitioner predominantly canvassed that the order dated 13.12.2010 directing closure of the College was passed without giving any opportunity to the petitioner trust and in view of the order dated 14.11.2011, the order of closure no longer exists. It is submitted that after the judgment of this Court, only notice is issued. However, till date, no adverse order is passed and therefore, when the order of closure is no longer in existence, the action of the respondent University in not accepting the enrollment forms as well as examination forms of the students, whose names were sent by the petitioner, is illegal. It is submitted that the order dated 13.12.2010 was in fact a nullity in the eye of law and the same has been quashed and set aside by this Court on the ground of non-grant of an opportunity of being heard i.e. for not observing the principles of natural justice and therefore, once such an order is passed, the same would relate back to the position as it exists as if no order is passed and/or that no actions are taken against the petitioner trust. It is submitted that, therefore, the order of closure dated 13.12.2010 never existed in the eye of law and it looses its significance. Mr. Dave relied upon the factual aspects of this very matter, which are enumerated above more particularly, the date on which the order of closure was passed i.e. 13.12.2010 and the dates on which the earlier petitions were preferred challenging the said order of closure and the same being entertained by this Court vide order dated 9.3.2011. It is submitted that the University has also not fulfilled the conditions which existed in the said order of closure and the University has made no endeavour to shift the students to other recognized College and in fact, even after the order of closure dated 13.12.2010, the respondent University has permitted the students to appear in the annual examinations that were taken in the month of May/June 2011 and even results have been declared and degrees have been granted to such students. It is, therefore, submitted that even after the order of closure in fact, the petitioner has run the College and has imparted education to its students. It is, therefore, submitted that both on facts as well as law once the order of closure is not given effect to, it results into accepting voidness of the order. Mr. Dave also invited attention to the other evidence on record and more particularly the photographs which are on record of this petition and has pointed out that all throughout the academic years 2006-07, 2007-08, 2008-09 and even after the order of closure, the petitioner has run the College and on the contrary, has held many functions, where the students as well as the guests have participated, in order to establish the fact that even after the order of closure dated 13.12.2010, the petitioner trust has run the College. Mr. Dave also relied upon the decision of the Apex Court in the case of Nawabkhan Abbaskhan Vs. State of Gujarat, reported in AIR 1974 SC 1471 and has further submitted that in the instant case also, as the order of closure dated 13.12.2010 has been quashed and set aside being void, the said order was never valid. Mr. Dave, therefore, submitted that the petition deserves to be allowed in toto and the prayers prayed for may be granted in the interest of the students.
10. As against this, Mr. A.R. Thacker, learned advocate for the respondent University invited attention of this Court to the provisions of Ordinances 103, 104 as well as 148 of the Saurashtra University Act. It was submitted that the conduct of the petitioner itself establishes the fact that the students were bogus and according to the version of the petitioner, there was no staff and in fact the First Information Report has been lodged stating that even though there was no work and the College has no function, the staff/personnel who were engaged by the petitioner trust have illegally credited their accounts as stated by the petitioner in their own correspondence. It is submitted that the University has come out with the programme of admission as well as the examinations to be held. It is submitted that the State Government passed the order of closure on 13.12.2010 and till the same was set aside by this Court vide order dated 14.11.2011, the said order of closure has remained in operation. Still however, the petitioner admitted the students in its College on paper in fact, no teacher/faculty was there and even non-teaching staff was not in existence. It is submitted that as per the circular, the last date of enrollment was 16.8.2011 and that too, after payment of late fees. In the instant case, the petitioner has canvassed before this Court that even though attempts were made by the petitioner College, the respondent University did not accept the same. It is submitted that no such attempt has been made and in fact, the demand drafts upon which the petitioner relied upon are of a earlier date. It was submitted that it is evident from the dates and enrollment forms which are part of the record of this Court that forged signatures of Principals/Members have been made even though there is no such Principal as per the communication, as stated aforesaid. It was, therefore, submitted that the petitioner has not run the College after the order of closure and therefore, had no right to admit the students for the academic year starting from June 2011. It is submitted that the University did make an attempt to inform the students of the College which were facing closure order to take admission in other recognized College by placing such a notice on the website of the University. However, the same has not been availed by the students who were in past admitted by the petitioner trust. It is submitted that in fact the students had appeared before the Division Bench of this Court in Special Civil Application Nos.3043 of 2011 and 10660 of 2011 and even though such a plea was raised, the same was negatived by the Court and only on the ground of non-observance of the principles of natural justice, the order of closure dated 13.12.2010 passed by the State Government was quashed and set aside. It is, therefore, submitted that in absence of any valid affiliation and by the conduct of the petitioner itself which has disclosed that there was no staff and the College is not being run by the prayers prayed for in the present petition, wants to get back recognition/affiliation.
11. Considering the rival submissions made by both the sides, it is an admitted position that by order dated 13.12.2010, the State Government issued order of closure of the College run by the petitioner trust. It transpires from the record that the said order remained in operation till 14.11.2011 when the same came to be quashed and set aside as stated earlier by this Court vide order dated 14.11.2011 passed in Special Civil Application Nos.3043 of 2011 and 10660 of 2011.
12. Before considering the submissions made by both the sides, it is appropriate to take note of the fact that on an inquiry raised by this Court, learned Senior Advocate for the petitioner submitted that as far as academic year 2011-12 is concerned, the petitioner trust gave admission to the students in first year in the month of May/June, 2011. So far as the second and third years students are concerned, they were admitted earlier.
13. From the facts narrated above, the order of closure came to be passed on 13.12.2010 and the Writ Petition challenging the said order of closure came to be filed before this Court on 21.2.2011 and the same was entertained by this Court on 9.3.2011 wherein no interim relief was granted staying the operation of the order of closure and ultimately, the said order of closure was quashed and set aside by order dated 14.11.2011. It, therefore, establishes the fact that from 13.12.2010 onwards till the order of closure was quashed and set aside i.e. till 14.11.2011, the petitioner trust had no legal sanction to run the College. Similarly, therefore, the petitioner trust had no legal sanction to admit the students either in May/June, 2011 or earlier as the order of closure was in existence till 14.11.2011. The contentions raised by the petitioner that as the said order of closure is quashed and set aside vide order dated 14.11.2011 by the Division Bench of this Court, the same would relate back to the date on which it was passed, would not apply in the factual aspects of the present case. The University Rules and the provisions of the Saurashtra University Act as well as the other relevant provisions of the regulations and the law relating to the recognition and affiliation require a legal affiliation and legal recognition as per the law to run a College for imparting education and in absence of any such sanction, the very existence of such a College, if any, would be dehors the law and under no circumstances, the actions, which are taken without any force of law, would automatically get legal status. From the facts emerging from the petition, on the contrary, it appears that the petitioner trust granted stay in favour of itself even though the order of closure was passed on 13.12.2010. Therefore, the argument put forwarded by the learned counsel that the order of closure having been set aside, was an order which was never valid and therefore, the petitioner trust had legal sanction to run the College based on the ratio laid down by the Apex Court in the case of Nawabkhan Abbaskhan Vs. State of Gujarat (supra) would not apply to the facts of the present case.
14. On the contrary, by a communication dated 14.4.2011, the petitioner trust had informed the competent authority of the respondent University that as the matter is subjudice before this Court i.e. Special Civil Application Nos.3043 of 2011 and 10660 of 2011 directed the said authority not to enter into any correspondence. By that very communication, on the contrary, the petitioner trust informed the respondent University that the students of the College run by the petitioner trust are not willing to go to the another College. It appears from the record that by a communication dated 13.12.2010, the date on which the order of closure was passed, the petitioner trust had informed the Principal Secretary of the Education Department, State of Gujarat that from 15.6.2009, all the employees do not report for service and from 13.2.2010, the teaching staff as well as the Librarian have been dismissed and the same was intimated to the Commissioner of Higher Education. It is further mentioned by the petitioner trust in the said communication that 17 employees do not report for the job and have been dismissed. Still however, by committing fraud, a muster has been prepared by them and by showing presence have directly prepared bills and submitted before the Commissioner of Higher Education and have taken away a huge amount. It further appears from the said communication that First Information Report has been lodged against those 17 erring employees on 4.12.2010 by the petitioner trust and even a public notice to the said effect has been published in Gujarati dailies, namely, Gujarat Samachar, Sandesh, Divya Bhaskar and Fulchhab dated 16.12.2010. It also transpires from the record that a similar communication was also sent by the petitioner trust to the Commissioner of Higher Education, State of Gujarat.
15. Similarly, as per the official resolution of the respondent University, the last date of submission of enrollment forms was 16.8.2011, whereas the enrollment forms which were sent by the petitioner trust were dated 12.10.2011, 18.10.2011, 16.11.2011 and 15.9.2011. Even the copies of the demand drafts which are produced on record by the petitioner to establish the fact that the petitioner made endeavours to send the enrollment fees in time are dated 30.7.2011 and 29.8.2011 which are prior in time than the date mentioned in the enrollment forms. As per the communication, as aforesaid, written by the petitioner trust itself, there was no staff in the College and the College was not being run and therefore, it cannot be believed that there was a competent incumbent in the seat of Principal authorised to sign the enrollment forms for and on behalf of the College.
16. As rightly pointed out by the learned counsel for the respondent University, the names of the students who were party to Civil Application No.6410 of 2011 and the names of the students as it appears on the enrollment forms which are on record at Annexure-A Colly. to the affidavit in sur-rejoinder made by the petitioner are different.
17. The above facts, therefore, clearly reveal and as aforesaid, even as per the communication dated 13.12.2010 of the petitioner addressed to the Principal Secretary, Education Department that 17 employees were dismissed and from 13.12.2010, teaching staff as well as the Librarian were also dismissed, the only inference which can be drawn on the basis of the said fact as well as the facts narrated hereinabove is that the petitioner has actually not run the College and the students have not been imparted education has canvassed by the petitioner. In relation to this, as aforesaid, the signatures on the enrollment purported to have been signed by the Principal on different dates does not inspire any confidence. It is an admitted position that in Special Civil Application No.3043 of 2011, 18 applicants had filed Civil Application No.6410 of 2011. However, the same would not be sufficient to establish that the petitioner trust was running the College that too, in absence of teaching staff. On perusal of the application dated 22.2.2011 filed before the Secretary of the Saurashtra University, the students who have signed are also different.
18. It would be advantageous to refer to the judgment of the Hon'ble Apex Court in the case of Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College Vs. National Council for Teachers' Education & Ors. in Civil Appeal No.11215 of 2011 with Civil Appeal No.11216 of 2011, wherein the Hon'ble Apex Court while considering the case of unrecognized institution have observed thus:-
"12.
Confronted with the above position, learned counsel for the appellant argued that the students admitted to the college for the academic session 2011-2012 could be allowed to appear in the examination to avoid prejudice to them and to save their careers. A similar contention urged before the High Court has been rejected by it relying upon the decisions of this Court in which decisions this Court has not favoured grant of such relief to students admitted to unrecognised institution on consideration of misplaced sympathy. The High Court has also noted that the students had been transferred to other recognised colleges and that in any case students admitted for the academic session 2011-2012 could not be allowed to continue in an institution which did not have the requisite infrastructure prescribed under the NCTE Regulations and norms. It was argued on behalf of the appellants that the High Court was not right in observing that students had been transferred to other institutions. At any rate the order withdrawing recognition could not, according to the learned counsel, affect students admitted to the institution for the academic session 2011-2012 as the withdrawal order could only be prospective in nature and having been passed in August, 2011 was relevant only for the academic session 2012-2013. We do not think so, firstly, because the recognition of the institution stood withdrawn on 20th July, 2011 which meant that while it had no effect qua admissions for the academic session 2010-2011 it was certainly operative qua admissions made for the academic session 2011-12 which commenced from 1st August, 2011 onwards. The fact that there was a modification of the said order of withdrawal on 24th August, 2011 did not obliterate the earlier order dated 20th July, 2011. The modifying order would in our opinion relate back and be effective from 20th July, 2011 when the recognition was first withdrawn. Such being the position admissions made for the academic session 2011-2012 were not protected under the statute.
13. Secondly, because this Court has in a long line of decisions rendered from time to time disapproved of students being allowed to continue in unrecognised institutions only on sympathetic considerations. In N.M.Nageshwaramma (supra) this Court while dealing with the prayer for grant of permission to the students admitted to unrecognised institution observed:
"3.
xxxxxx We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the court we direct the Government to permit them to appear at the examination we will practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose. The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. We have no hesitation in dismissing the writ petitions with costs."
(emphasis supplied)"
19. In the instant case, the petitioner College had no affiliation for the academic year 2011-12 and therefore, the petitioner trust had no right to admit the students.
20. The attempt on the part of the learned counsel for the petitioner to establish the fact that the petitioner trust is running the College and has undertaken extra curriculum activity is produced on record of this petition by way of various photographs of certain functions, cannot establish the fact that the petitioner trust had recognition and affiliation to run the College. The contention advanced by learned counsel for the petitioner Mr. Dave that during the period when the order of closure dated 13.12.2010 remained in operation, the respondent University has not taken any action as contemplated under the regulations is also not true. It has been specifically contended by the respondent University that by communication dated 13.4.2011, the petitioner was informed that if the State Government has withdrawn the affiliation, no students would be admitted and a notice notifying that the last date of filling up the enrollment forms even with penalty would be 16.8.2011 was also placed on the website of the respondent University. The contention advanced on behalf of the petitioner that the order of closure having been quashed and set aside the same would revive the situation as it existed on the date of passing of the order also deserves to be negatived as recorded hereinabove from the correspondence of the petitioner itself dated 13.12.2010 addressed to State Government and its authorities and it is clear that there was no teaching or non-teaching staff.
21. Considering the facts stated hereinabove and upon hearing the counsels, the only conclusion that is possible is that the petition is thoroughly misconceived and under the grab of providing opportunity to the students to appear in the University examination, the management has filed this petition. This Court would have gone further in the matter as the facts are so eloquent. However, it restrains by merely dismissing this petition. Rule discharged. Parties to bear their own costs.
Order in Civil Application:-
In view of dismissal of the main matter, Civil Application does not survive and is disposed of accordingly.
[R.M.CHHAYA, J.] mrpandya Top