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1998 DIGILAW 463 (PAT)

Governing Body of the Sanjay Gandhi Asmarak Mahila Mahavidyalaya, Sheikhpura v. State of Bihar

1998-07-09

NAGENDRA RAI

body1998
JUDGMENT : Nagendra Rai, J. The petitioners have filed the present writ application for quashing the memo no. 408 dated 4.3.97 (Annexure-11) issued under the signature of Deputy Secretary of the Government, Department of Higher Education, Government of Bihar, respondent no. 3 by which the earlier government ORDER :dated 12.2.88 granting financial recurrent grant of Rs. 5,00,000/- with effect from 1987-88 to Sanjay Gandhi Asmarak Mahila Mahavidyalaya Sheikhpura (Munger) hereinafter referred to as the 'College', has been cancelled and for issuance of appropriate direction to declare the decision contained in Clause 3 of the Cabinet Resolution of the respondent State dated 19.10.82 contained in Annexure-1 as unlawful, ultra vires and for a further direction to pay the amount of annual recurrent grant which the college has been receiving till financial year 1996-97. 2. During the pendency of the writ application, I.A. application was filed on 20.4.98 wherein prayer was also made to quash the letter no. 408 dated 24.5.97 issued by the Joint Secretary to the Government, Department of Higher Education, Government of Bihar by which the Annual Recurring Grant of Rs. 1.00,000/- to the college granted vide ORDER :dated 12.2.1988, has been cancelled. A copy of the said ORDER :has been annexed as Annexure-12. 3. The petitioner no. 1 is the governing body of the college and petitioner no. 2 claims herself to be the ex-officio member of the college and petitioner no. 3 claims herself to be a student of the said college. 4. The college in question was established in the year 1980 by the people of locality at Sheikhpura to cater the needs of the girls/women of the rural areas in the matter of education of the four districts, namely, Munger, Jamui, Nawadah and Nalanda. The College, in course of time, acquired ten acres of land, constructed buildings, hostels etc. Sufficient numbers of students took admission in the college. Initially classes were started up to Intermediate and later on B.A., B.Sc. classes were also started. Duly qualified principal and teachers were appointed in 1981 and thereafter on application being filed by the college for the affiliation, the Bihar State Intermediate Council in its meeting held on 16.2.82, granted affiliation in ten faculties by letter no. 785 dated 5.3.82 and again the Council granted affiliation in 10 more subjects by letter dated 23.9.82. Duly qualified principal and teachers were appointed in 1981 and thereafter on application being filed by the college for the affiliation, the Bihar State Intermediate Council in its meeting held on 16.2.82, granted affiliation in ten faculties by letter no. 785 dated 5.3.82 and again the Council granted affiliation in 10 more subjects by letter dated 23.9.82. While granting affiliation certain directions were given to the college which were to be fulfilled within a period of six months. The college fulfilled the aforesaid direction and at the later stage, the Bhagalpur University granted affiliation up to B.A./B.Sc. Hons. standard. The teaching staff were appointed with the concurrence of the college service condition (sic-commission?) and the posts were sanctioned by the State Government. 5. The State Government by various circulars/memos/notifications declared its policy for affiliation. As the college in question has already been granted affiliation earlier up to the Intermediate and later on up to B.A./B.Sc. level, it is not necessary to state the policies regarding grant of affiliation, except one which was taken by the State Government on 19.10.82 which is relevant for the present case. It appears that the affiliated colleges were entitled for deficit grant for meeting the expenses of salaries of the teaching staff. Some of the colleges started mis-utilising the same and then the government came out with a policy decision which is contained in resolution dated 19.10.82. It was provided in the said Resolution that the government would not bear the additional financial burden resulting from affiliation of new faculties or creation of new teaching and non-teaching posts in affiliated colleges. It was clarified in the said resolution that the government would continue to bear as before the financial burden which it was bearing earlier. A copy of the said resolution is Annexure-1 to the writ application. 6. The college in question was visited by the Hon'ble Governor in the year 1983 who, after inspection, wrote to the Chief Minister for taking over of the College. The then Chief Minister also visited the college on 27.10.1984 and made a public announcement that the college shall be converted into a deficit grant college. Thereafter, the matter was examined by the government at different levels. 7. The then Chief Minister also visited the college on 27.10.1984 and made a public announcement that the college shall be converted into a deficit grant college. Thereafter, the matter was examined by the government at different levels. 7. A decision was taken that the deficit grant should be given to colleges and thereafter the steps were taken to collect information from different universities about the affiliated girls colleges for consideration of the allotment of deficit grant. However, necessary information were not sent by the Universities. The Registrar of Bhagalpur University however submitted information regarding three girls college i.e. the college in question. Shyama Prasad Singh Mahila Mahavidyalaya, Jamui and Mahila Mahavidyalaya, Khagaria. In the meantime the Chief Minister again visited the college in question and having found that the college in question is the only college in the rural area, said that it should be given Rs. 5,00,000/- as a Recurrent Grant and thereafter the matter was considered at government level and a decision was taken by the Education Department for sanctioning the annual recurrent grant of Rs. 5.00,000/- to the college. The said decision is contained in letter no. 1459 dated 17.10.86 (Annexure-4). The said amount of Rs. 5,00,000 was ORDER :ed to be included in the grant of Bhagalpur University. 8. Again the Chief Minister visited the college in 1988 and it was represented before him that in spite of the fact that the college in question is the only women’s college in the area catering the educational needs of girls of four districts, it is facing financial difficulties. The Chief Minister thereafter, wrote a letter to the Education Minister for considering the case for further grant of Rs. 5,00,000/- from financial year 1987-88 as recurrent grant. The matter was examined by the government and a decision was taken to grant Rs. 5.00,000/- more as recurrent grant and accordingly the decision of the government was communicated to the Registrar of the Bhagalpur University that the petitioner-college be paid annual recurrent grant of Rs. 100000 (sic) with effect from 1987-88. A copy of the said direction is Annexure-6 to the writ application. Thereafter the college was getting grants up to the year 1996-97 and thereafter the recurrent grant of Rs. 5,00,000/- granted by Annexure-4, was cancelled by the ORDER :dated 4.3.97 as contained in Annexure-11, as stated above. The entire recurrent grant of Rs. 100000 (sic) with effect from 1987-88. A copy of the said direction is Annexure-6 to the writ application. Thereafter the college was getting grants up to the year 1996-97 and thereafter the recurrent grant of Rs. 5,00,000/- granted by Annexure-4, was cancelled by the ORDER :dated 4.3.97 as contained in Annexure-11, as stated above. The entire recurrent grant of Rs. 10,00,000/- granted vide letter dated 12.2.88 (Annexure-6) was cancelled by the ORDER :dated 24.5.97 as contained in Annexure -12. The said two ORDER :s have been challenged by the petitioners. 9. In this case, no counter affidavit has been filed. 10. Learned counsel appearing for the petitioners has challenged the ORDER :on two grounds. Firstly, he has submitted that the impugned ORDER :s have been passed without notice to the college and as such the same are violative of the principles of natural justice. Elaborating his submissions, he submitted that the State Government having considered the matter granted recurrent grants as special case, as evident from the ORDER :s contained in Annexures-4 and 6 and the said ORDER :s have been cancelled by the impugned ORDER :s without affording an opportunity of hearing and without assigning any reason and as such the said ORDER :s are vitiated on account of non-observance of principle of natural justice. Secondly, he submitted that the policy decision of the State Government dated 19.10.82 as contained in Annexure-1 prohibiting the authorities for making any grant to the educational institutions is illegal arid arbitrary as the policy decision has the effect of completely fettering the exercise of discretion of the State not to make grants. In other words it has been contended by the learned counsel for the petitioners that the policy prohibiting from making payment of any grant is a rigid policy. 11. In other words it has been contended by the learned counsel for the petitioners that the policy prohibiting from making payment of any grant is a rigid policy. 11. Learned counsel appearing for the State on the other hand contended that it was not incumbent upon the State to give an opportunity of hearing or to assigning any reasons before cancelling the earlier ORDER :s giving recurrent grants inasmuch as the petitioner has no right to claim the grants as a matter of right and it was in a nature of benefit or privilege given to the college which has been withdrawn by the State Government on the ground that the same have been granted in breach of its policy decision prohibiting to make payment of any grant as contained in its ORDER :dated 19.10.82 (Annexure-1). It was also submitted that it is always open to the State Government to lay down a policy either not to make a grant or grant to the certain classes of colleges and so long as that policy is based on relevant consideration, the same cannot be declared as arbitrary on the ground that it completely fetters the exercise of discretion of the concerned authority. 12. The first question which has to be determined is as to whether the impugned ORDER :are vitiated on account of non-observance of principles of natural justice. The admitted facts are that the State Government took a policy decision on 19.10.82 as contained in Annexure-1 that the State Government will not bear the additional financial burden resulting out of affiliation of new faculties or creation of new teaching and non-teaching posts in affiliated colleges. The petitioners assertion is that college was affiliated prior to that as stated above and as such the aforesaid policy decision is not applicable Further assertion of the petitioners is that even if this policy is held to be applicable, as the college was granted affiliation with regard to graduation level subsequently, the State Government after a detailed consideration found that the college should be given the recurrent grant as special case and accordingly the recurrent grants were granted by ORDER :s contained in Annexures-4 and 6. By the impugned ORDER :s, the grants made to the college have been withdrawn without affording any opportunity of hearing to them. By the impugned ORDER :s, the grants made to the college have been withdrawn without affording any opportunity of hearing to them. If an opportunity of hearing would have been given, it would have been shown that the policy decision contained in Annexure-1 was not applicable in their case or at any rate in their case the grants were made by the State Government as special case by making exception to the aforesaid policy decision. 13. Natural justice has been held to be a part of Article 14 of the Constitution of India. The principle applies both to the quasi judicial as well as the administrative actions or functions. The purpose of both quasi judicial enquiry and administrative enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi judicial inquiry and not to administrative inquiry (A.K. Kraipak vs. Union of India, (1996) 2 SCC 266, Col. J.M. Sinha vs. Union of India, (1970) 2 SCC 458 and D.K. Yadav vs. J.M.A. Industries Ltd., (1993)3 SCC 259 : 1994(1) PLJR 55 (SC). However, it is clarified that the question as to whether the principle of natural justice is, applicable in a particular case or not depends upon the facts and circumstances of the case. Natural justice cannot be put in a strait jacket in the sense that it is applicable in all the cases wherein adverse ORDER :s are passed against the citizen or a body. Its applicability can be excluded specially or by necessary implication. In case where application of the principle of natural justice does not advance the cause of justice, on the other hand results in miscarriage of justice, the court will not apply the principle in such case. The principles of natural justice cannot be expanded in such a manner as would result in miscarriage of justice. 14. In the present case, as stated above the State Government after going into the matter in detail, made administrative ORDER :giving grants to the college in question. If the State Government wanted to withdraw the grant by passing impugned ORDER :s which have adversely affected the college in question, the State Government should have followed the minimum requirement of giving opportunity of hearing to the petitioner. If the State Government wanted to withdraw the grant by passing impugned ORDER :s which have adversely affected the college in question, the State Government should have followed the minimum requirement of giving opportunity of hearing to the petitioner. Thus, I am of the view that the impugned ORDER :s cancelling the earlier ORDER :s passed in favour of the college are vitiated on account of not affording opportunity of hearing to the petitioner. 15. Even assuming that the college in question cannot claim grants as a matter of right and it was a benefit or privilege having granted to the college even then I am of the view that the right of representation or hearing should have been given to the college before withdrawing the aforesaid privilege or benefit. In this connection, I may refer to the case of Nav Jyoti Cooperative Group Housing Society and others vs. The Union of India, 1992 (4) SCC 477 . The Development authority in exercise of power under the D.D.A (Disposal of Developed Nazrul Land) Rules, 1981, used to allot land to the Cooperative Housing Societies. The basis for determining seniority was with reference to the date of registration of society with the Registrar. Later on, the aforesaid policy was changed and a new criteria of determining seniority with reference to the date of which approval of list of members of society was brought into existence. The said policy decision was changed without affording any opportunity of making representation to the affected societies. Dealing with the said matter, the Apex Court said that the person enjoying certain benefit under the old policy of the Government derive a legitimate expectation even though they may not have any legal right under the private law in the regard of its continuance. The opportunity of hearing or representation should be given to the affected society before adopting the new policy. 16. Thus, even assuming that the grant was in the nature of benefit or advantage, there was legitimate expectation on the part of the college to get the same and the same should not have been withdrawn without giving opportunity of hearing to the college in question. The ORDER :also suffers on account of non-disclosure of any reason for withdrawing the earlier grant of the college. Non-arbitrariness is necessary concomitant of rule of law and in substance, fair playing action. The ORDER :also suffers on account of non-disclosure of any reason for withdrawing the earlier grant of the college. Non-arbitrariness is necessary concomitant of rule of law and in substance, fair playing action. The public authority is required to record reasons while passing administrative ORDER :. From the perusal of the impugned ORDER :s, it appears that no reasons have been assigned for withdrawing the benefit of grant which were given to the college in question after a detailed deliberation and considerations. Thus, I am of the view that for the aforesaid reasons the ORDER :s contained in Annexures-11 and 12 are vitiated. As I am inclined to quash the ORDER :on the first point itself, it is not necessary to express any opinion with regard to the second submission of the petitioner. I would like to mention that the learned counsel for the petitioner relied upon certain text books in support of his submission but as that point is not being discussed. I am not referring to those cases. 17. In the result the application is allowed and the impugned ORDER :s contained in Annexures-11 and 12 are quashed. However, it will be open to the authorities concerned to consider the matter afresh in accordance with law.