Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3854 (ALL)

JITENDRA PRASAD v. UNION OF INDIA

2009-12-23

DILIP GUPTA, SUNIL AMBWANI

body2009
JUDGMENT By the Court.—Heard Shri Yogesh Agrawal, learned counsel for the petitioners. Learned Standing Counsel appears for state respondents. Shri P.S. Baghel has filed appearence for University of Allahabad and Shri Anurag Khanna appears for Chhatrapati Shahuji Maharaj Medical University, Lucknow (CSMMU Lucknow). 2. The petitioners are students of medical science of 41st, 42nd, 43rd, 44th, 45th and 46th batch of Moti Lal Nehru Medical College, Allahabad (in short the M.L.N. Medical College, Allahabad) admitted through the Combined Pre-Medical Tests held for the State Medical Colleges in Uttar Pradesh. The students of 41st batch were admitted in the academic session 2001-02; 42nd batch in the academic session 2002-03; 43rd batch in the academic session 2003-04; and 44th batch in the academic session 2004-05. 3. By this writ petition the petitioners have prayed for quashing the communication dated 1.1.2009 sent by Chhatrapati Shahuji Maharaj Chikitsa Vishwavidyalaya Lucknow to the Principal, Moti Lal Nehru Medical College, Allahabad forwarding 400 examination forms for MBBS 1st Prof. (Supple) 2009; MBBS 2nd Professional (Regular); MBBS Final Professional Part-I (Regular), and MBBS Final Professional Part-II (Regular) and to ensure deposit of examination fees between 3.1.2009 to 22.2.2009. The petitioners have also prayed for quashing the notification dated 16.7.2008 published by the University of Allahabad and the letter dated 9.7.2008 issued by the Union of India delinking MLN Medical College, Allahabad from the University of Allahabad. The petitioners have also prayed for a direction to the University of Allahabad to hold examinations of the petitioners belonging to 41st, 42nd, 43rd, 44th, 45th and 46th batch respectively of MBBS Professional Course. By an amendment allowed by the Court on 17.4.2009, the petitioners have also prayed for a writ of mandamus declaring provisions of Section 28 (5) of the University of Allahabad Act, 2005 as void on the ground that it delegates excessive powers on the Visitor (the President of India) of repealing and interfering with the legislative provisions, and also on the ground that Section 28 (5) of the Act does not provide for any guidelines and confers uncanalised, unfettered and arbitrary powers on the Visitor violating Article 14 of the Constitution of India. The petitioners have also added ground No. 20 by which they have challenged the orders dated 9.7.2008 issued by Under Secretary, Department of Higher Education, Ministry of Human Resource Development, Government of India informing that the President in her capacity as the “Visitor of University of Allahabad” in exercise of the powers vested in her under Section 28 (5) of the University of Allahabad Act, 2005 has been pleased to repeal; (i) Statute 14 (1) (iv) relating to the Faculty of Medicine; (ii) Statute 14 (6) relating to the departments under the Faculty of Medicine; (iii) Statute 30 (4) relating to the MLN Medical College and Swarup Rani Nehru Hospital Allahabad being a University College of the University and the notification dated 16.7.2008 issued by University of Allahabad, notifying the order dated 9.7.2008 as violative of principles of natural justice. 4. Briefly stated the facts giving rise to this writ petition are that the MLN Medical College, Allahabad was a constituent college of University of Allahabad under Statute 12.01 of the Statutes of the University of Allahabad made under the U.P. State Universities Act, 1973 prior to the University of Allahabad Act, 2005 (hereinafter called as the Act of 2005) came into force on 14.7.2005. The petitioners continued their studies and training in MLN Medical College even after the University of Allahabad was declared under the Act of 2005 as an ‘Institution of National Importance’ and was admitted to the privileges of the University as defined in Section 3 (x) of the Act of 2005. 5. By a notification dated 9.7.2008, on the last day before completion of three years Her Excellency, the President of India, the Visitor of University of Allahabad exercised her powers and repealed Statutes 14 (1) (iv) relating to the Faculty of Medicine; Statute 14 (6) relating to the departments under the Faculty of Medicine and Statute 30 (4) relating to the Moti Lal Nehru Medical College, Allahabad and Swarup Rani Nehru Hospital, Allahabad being a University College of the University of Allahabad. With this notification the MLN Medical College ceased to be the Faculty of Medicine of the University and became the College of the State Government. 6. The repeal by the Visitor left the MLN Medical College without affiliation with any University. With this notification the MLN Medical College ceased to be the Faculty of Medicine of the University and became the College of the State Government. 6. The repeal by the Visitor left the MLN Medical College without affiliation with any University. The State Government, after the repeal of the Statutes as above, applied for affiliation of MLN Medical College to the privileges of affiliation of the Chhatrapati Shahuji Maharaj Medical University (UP) established by the Chhatrapati Shahuji Maharaj Medical University, U.P. (Amendment) Act, 2007 (UP Act No. 31 of 2007) after repealing the U.P. Ordinance No. 27 of 2007, for conducting the examinations of MLN Medical College and for conferring the degrees. 7. Shri Yogesh Agrawal, appearing for the petitioners submits that Section 28 (5) of the Act of 2005 is ultra vires the Constitution of India as it gives unguided and uncanalised powers to the Visitor to make new or additional statutes or amendment or repeal the Statutes referred to in sub-section (1) of Section 28. The powers given to the Visitor are coupled with the conditions of giving notice to the University or the persons concerned. The powers under Section 28 (5) have been used in the present case arbitrarily. The Visitor had without giving any reasons exercised the powers to repeal the statutes and thereby deleting the medical faculty and the medical college from the University of Allahabad. He has relied upon Baldev Raj Chadha v. Union of India, AIR 1981 SC 70 in submitting that arbitrary power is an anathema to the Constitution of India. The powers conferred by Statutes have to be exercised reasonably and in public interest. There was no material before the Visitor, inducing her to reach to a satisfaction that MLN Medical College is not entitled to enjoy the privilege as University College of the University of Allahabad. Any order passed without any material or for the reasons given on such material is against public interest vide Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others, AIR 1986 SC 515. 8. Shri Yogesh Agrawal submits that the impugned notifications have been issued repealing the statutes without any enquiry or inspections and without any finding that MLN Medical College is not entitled to remain the University College of the University of Allahabad. 8. Shri Yogesh Agrawal submits that the impugned notifications have been issued repealing the statutes without any enquiry or inspections and without any finding that MLN Medical College is not entitled to remain the University College of the University of Allahabad. Only three years earlier by a Parliamentary Act it was found fit to include MLN Medical College as a University College. The Parliamentary Act has been amended by the Visitor by exercising her powers without investigation, inspections or materials. In K.R. Laxmanan v. State of Tamil Nadu, AIR 1996 SC 1153 it was held that even the legislature cannot pass an Act which affects the provisions of Part-IV of the Constitution of India and without any inspection or factual basis. 9. Shri Yogesh Agrawal would submit that the Parliamentary Act cannot be amended either by a subordinate legislation or by an executive act. The Visitor exercising executive powers cannot repeal and thereby amend the Parliamentary Act and has relied upon Bihar Rajya Adhivakta Sangh v. State of Bihar, AIR 1994 Pat 151 in support of his submission. 10. It is contended that the orders passed by the Visitor are in the nature of executive powers and thus these powers could not be exercised without adhering to the principles of natural justice. The Visitor is entitled to exercise the powers in the affairs of the University and its Colleges. These powers affect the colleges and the students and that the drastic powers of deleting the whole faculty and college thereby affecting the students as a part of the University of National Importance and leaving them on the mercy of the University in the State could only be exercised by inviting objections and giving reasons. The Visitor has affected the rights of the students without giving them any opportunity of hearing and without disclosing any reasons. The petitioners pursuing their studies in the University of National Importance have been thrown of at the mercy of the State Government to be affiliated to any University at its discretion. The Moti Lal Nehru Engineering College was also delinked but that even after delinking the University is permitted the Ph.D scholars of Moti Lal Nehru Engineering College to complete their Ph.D course. The Moti Lal Nehru Engineering College was also delinked but that even after delinking the University is permitted the Ph.D scholars of Moti Lal Nehru Engineering College to complete their Ph.D course. It is alleged that all those students who were getting the benefits of affiliation and examinations to be conducted by the University of Allahabad must in the alternative continue to have its benefits and that the University should take their examinations, as in the case of supplementary examinations held by the University, and to confer degrees upon them. In Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 the Supreme Court interfered in the matter of students of medical college stating that any treatment to the students which goes against their rights for given education is per se arbitrary and is violative of the Constitution of India. Shri Yogesh Agrawal submits that the petitioners’ future prospects have been marred by depriving them the benefits of the University of Allahabad, (a Central University) leaving them at the mercy of the State Government. 11. In this case inspite of repeated adjournments and time given to both the State of UP and the University of Allahabad, no reply was filed. Shri Anurag Khanna appearing for Chhatrapati Sahuji Maharaj Medical University Lucknow (C.S.M.M. University)-respondent No. 8, filed a reply stating that the degree can only be conferred by the University which has a faculty of medicine as one of its department. After the repeal by the Visitor of Faculty of Medicine there is no question of degree being granted by the University of Allahabad to the petitioners. The petitioners appeared in the examinations held in February, 2009 by the C.S.M.M. University, Lucknow and that their results have been declared. It is stated in para-28 of the counter-affidavit that the supplementary examinations of the final examinations were conducted by the University of Allahabad. Such examinations could only be taken by the University which has taken the main examinations. The first regular examinations cannot be taken by the University of Allahabad after the MLN Medical College has been affiliated to the answering respondent university. Since MLN Medical College has been affiliated to the answering respondent University, it is the responsibility of the answering respondent University to conduct their examinations. The Chhatrapati Sahuji Maharaj Medical University, Lucknow now, after the MLN Medical College is affiliated to it, is responsible for conducting the examinations. 12. Since MLN Medical College has been affiliated to the answering respondent University, it is the responsibility of the answering respondent University to conduct their examinations. The Chhatrapati Sahuji Maharaj Medical University, Lucknow now, after the MLN Medical College is affiliated to it, is responsible for conducting the examinations. 12. We must record that inspite of time granted on 12.1.2009; 12.2.2009; 27.3.2009; 17.4.2009; 15.5.2009 and 24.7.2009 neither the State Government nor the University of Allahabad filed their affidavits. Shri P.S. Baghel appearing for University of Allahabad did not appear in the Court, on any of these dates. In the meantime, Shri Yogesh Agrawal kept on insisting and pleading that the career of the students is at stake and pleaded on every date that the Court must hear and decide the matter. 13. The challenge to the vires of Section 28 (5) of the University of Allahabad Act, 2005 has been casually made without advancing any serious argument. The power of repeal is a necessary part of the legislation. In the University of Allahabad Act, 2005 the Visitor has been vested with the powers for repealing any statute within a period of three years from the date of enforcement of the Act. We do not find that this power is either unconstitutional or is unguided. The difficulties in the implementation of the Act may not be foreseen at the time of enactment. The power of repeal is a necessary concomitant to the enactment. The condition of laying the notification before both the houses of Parliament is a sufficient safeguard to the exercise of the power. 14. The President of India is the Visitor of the University of Allahabad. The powers vested in her to give her assent or to withhold assent to new statutes or additions to the statutes or any amendment or repeal of the statute, under sub-section (3) and the powers vested in her to make new or additional statutes or amend or repeal statutes referred to in sub-section (1) during the period of 3 years immediately after the commencement of the Act and further the powers of the visitor within one year from the date of such expiry, to make such detailed statutes as she may consider necessary to be laid before both the Houses of Parliament, are the executive powers vested in her to be exercised in accordance with Section 74 of the Constitution of India. These power have to be exercised by her with the aid and advice of the Council of Ministers. Under sub-clause (2) of Art.74 the question whether any and if so what, advice was tendered by Ministers to the President shall not be enquired into any Court. The petitioners have not taken any ground, nor it was argued that the President has exercised the power without the advice of the Council of Ministers. 15. The executive powers of the Visitor to make statutes, additional statutes or to amend or repeal the statutes under Section 28 of the University of Allahabad Act, 2005 is not subject to rules of natural justice. Though the power is executive, it is legislative in character. The making of statutes or its repeal is by way of making subordinate legislation for which no notice or hearing is required nor there is any mode prescribed for observing principle of natural justice. In Union of India and another v. Cynamide India Ltd., AIR 1987 SC 1802 ; M/s Narinder Chand Hem Raj and others v. Lt. Governor Administrator, Union Territory H.P. and others, AIR 1971 SC 2399 ; Supreme Court Employees Welfare Association v. Union of India and another, (1989) 4 SCC 187 and State of Jammu & Kashmir v. A.R. Zakki and others, AIR 1992 SC 1546 the Supreme Court has held that when an executive authority exercises a legislative power, by way of subordinate legislation, pursuant to the delegated authority of the legislature, the exercise of power by the executive authority cannot be questioned on the ground of violation of principle of natural justice. The submission of Shri Yogesh Agrawal that the students, who were getting the benefits of valuation and examination were required to be heard before the exercise of power therefore has no substance. 16. The students of 41st batch admitted in the academic session 2001-02; 42nd batch in academic session 2002-03; 43rd batch in the academic session 2003-04; and 44th batch in the academic session 2004-05 the petitioners in this writ petition were all admitted to the Moti Lal Nehru Medical College, Allahabad, when it was affiliated to the University of Allahabd under the State Government. They must have given their choice, or allotted Moti Lal Nehru Medical College, Allahabad in the counselling at the time of admission. They must have given their choice, or allotted Moti Lal Nehru Medical College, Allahabad in the counselling at the time of admission. The enactment of University of Allahabad Act, 2005 and the decision of the Executive Council, University of Allahabad in its meeting dated 24th December, 2005 and 21st March, 2006 to maintain Moti Lal Nehru Medical College and Swaroop Rani Hospital from the funding of the Central Government does not give the petitioners any indefeasible right, which could not be taken away by the visitor by deleting the statutes 14 (1) (iv), statutes 14 (vi) and statute 30 (iv) relating to these institutions by communication of the Under Secretary, Department of Higher Education, Ministry of Human Resource, Government of India dated 9.7.2008 notified by the University on 16.7.2008. 17. The petitioners were admitted through a combined premedical test, on their choice and the counselling in MLN Medical College and not to any University. The affiliation of MLN Medical College to the Allahabad University as State Medical College maintained by the State Government or its subsequent inclusion under Statute 30 (4) to the University of Allahabad under the University of Allahabad Act, 2005, as a Central University, did not give them any right to be treated as students of the Central University. Their claim therefore to quash notification dated 16.7.2008 published by University of Allahabad and the letter dated 9.7.2008 issued by the Union of India repealing the relevant statutes relating to admittance of MLN Medical College Allahabad to the University of Allahabad is liable to be rejected. The prayers made by them for quashing communication dated 1.1.2009 sent by CSMCV Lucknow to the Principal of Moti Lal Nehru Medical College, Allahabad forwarding the examination forms and to ensure deposit of examination fees do not have any legal standing. 18. In Re Delhi Laws Act, AIR 1951 SC 332 , the Supreme Court held that the power to repeal an existing Act is an essential legislative function and thus it cannot be delegated. A similar provision was however upheld in A.V. Nachane v. Union of India, AIR 1982 SC 1126 . Upholding Section 48 (2) (cc) of the Life Insurance Corporation (Amendment) Act 1981, the Court held that abrogation or implied repeal by virtue of legislative declaration, and not by force of the order made by the delegate under the statute a valid. The power delegated was not unfettered. Upholding Section 48 (2) (cc) of the Life Insurance Corporation (Amendment) Act 1981, the Court held that abrogation or implied repeal by virtue of legislative declaration, and not by force of the order made by the delegate under the statute a valid. The power delegated was not unfettered. It was guided by policy, to secure the interest of the Life Insurance Corporation and its policy holders and to control the cost of construction. The provision to laying the rules before both the houses of Parliament was another factor which had influenced the Courts towards upholding the delegation of legislative power. It was also held that the appellants had not brought on record sufficient material to attract Article 14 of the Constitution of India. 19. We do not have the reply of the State Government and the Union of India, to justify the exercise of delegated power of repeal. At the same time we also do not have material to hold that the power of repeal was exercised by the Visitor (The President of India), arbitrarily and without any reason. A Central University must have a medical faculty, as an essential part of teaching life sciences, but the wisdom to exercise powers of repeal, based on the insistence of the State Government to get back the medical college as a State Medical College, to carry out its policy of health and for benefit of reservation to the medical studies, and the proposal if any of the University of Allahabad to have its own medical faculty, need not be doubted. When the power has been exercised by the President of India the Courts should assume that there was sufficient material, and non-arbitrariness in exercise of such powers. The President of India as the highest executive authority under the Constitution of India, exercises all the powers in good faith and for the purposes for which such powers are entrusted. The petitioners have not pleaded or brought on record any such material which may require judicial review of the exercise of such power. 20. The President of India as the highest executive authority under the Constitution of India, exercises all the powers in good faith and for the purposes for which such powers are entrusted. The petitioners have not pleaded or brought on record any such material which may require judicial review of the exercise of such power. 20. It was contended that the petitioners as medical students of a college which was included in the Schedule appended to the University of Allahabad Act, 2005, as a Faculty of Medicine had a vested right to pursue their studies, examined and to get a degree from the University of Allahabad and that the right so accrued could not be taken away by the repeal. Section 6 (e) of the General Clauses Act, 1897 protects such right and that the act of repeal did not express any contrary intention. 21. The petitioners were not admitted to the privileges of the University of Allahabad, after it was declared as Central University under the University of Allahabad Act, 2005. They were all admitted to the MLN Medical College, as a State Medical College affiliated to Allahabad University, regulated by the U.P. Universities Act. They did not get or mature any right under the University of Allahabad Act, 2005, to get a degree from the University as a Central University. The students of a College affiliated to a University do not have a vested right to be a student of the University. The affiliation may change by necessary or by operation of a Statute, or repeal and affiliation to another University, or by re-affiliation to the same University. The petitioners did not mature any right under the University of Allahabad Act to be protected by Section 6 (e) of the General Clauses Act, 1897. The repeal restored the MLN Medical College to the State Government. The College had to seek affiliation for conferring degrees to its students. The petitioners as students pursuing their studies also do not have a right to ask for affiliation to any particular University. The decision taken by the State Government to seek affiliation with Chhatrapati Sahuji Maharaj Chikitsa Vishwavidyalaya, Lucknow was in the interest of the students of the College. We do not find any illegality or arbitrariness in the decision. The petitioners as students pursuing their studies also do not have a right to ask for affiliation to any particular University. The decision taken by the State Government to seek affiliation with Chhatrapati Sahuji Maharaj Chikitsa Vishwavidyalaya, Lucknow was in the interest of the students of the College. We do not find any illegality or arbitrariness in the decision. During the pendency of the writ petition all the petitioners have appeared in the examinations conducted by the Chhatrapati Sahuji Maharaj Chikitsa Vishwavidyalaya, Lucknow. 22. The writ petition is dismissed. ———