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2013 DIGILAW 1388 (ALL)

C. M. P. DEGREE COLLEGE v. UNION OF INDIA

2013-05-10

LAXMI KANTA MOHAPATRA, SUNITA AGARWAL

body2013
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri T.P. Singh, learned Senior Advocate assisted by Sri Siddharth Nandan, learned counsel for the petitioners and Sri A.K. Goel, learned counsel for the respondents. 2. By means of present petition, petitioners sought mandamus directing the respondent authorities to implement the decision of the Executive Council of the University whereby the amendments in First Ordinance of University of Allahabad were approved and pass appropriate orders during the said amendment in its full application. Further prayer is to direct the University authorities to decide the petitioners’ application for according approval to the “Five Years Integrated Law Course” a proposal of which is pending before the University of Allahabad. Out of all the prayer sought in the writ petition Sri T.P. Singh, learned Senior counsel for the petitioners assisted by Sri Siddharth Nandan, Advocate advanced arguments on one relief sought in the petition that is implementation of the Ordinances. 3. Argument is that once the amendments in First Ordinance of the University of Allahabad are approved and adopted by the Executive Council in its meeting held on 25.1.2012 and resolution has been passed accepting the report dated 24.1.2012 of two member committee constituted in pursuance of the earlier resolution No. 13/19 dated 8.12.2011 subject to certain additions/amendments proposed in Clause II(A) of the report, the amended ordinance came into effect immediately by virtue of Statute 40(5) of the Statutes of the University of Allahabad. 4. Learned counsel for the petitioners further submits that the university authorities are not giving effect to the amended Ordinance approved by the Executive Council on the ground that the same has been submitted for approval of the Visitor which is necessary. 5. While elaborating his argument learned counsel for the petitioners placed reliance on Statute 40(6) and 40(7) of the Statute of the University and inter alia submits that every Ordinance made by the Executive Council is required to be submitted to the Visitor within two weeks from the date of its adoption by the Executive Council. The Visitor has power to direct the University to suspend the operation of any Ordinance. These two provisions do not empower the university to withhold the Ordinance adopted by the Executive Council on the ground that the Visitor has not approved the same. 6. The Visitor has power to direct the University to suspend the operation of any Ordinance. These two provisions do not empower the university to withhold the Ordinance adopted by the Executive Council on the ground that the Visitor has not approved the same. 6. Sri A.K. Goel, learned counsel for the respondents university submits that with a view to monitor and promote the academic functioning and development of the constituent colleges of the university, a two member committee comprising of Supervisor N.R. Farooqi, Dean, Research and Development Sri L.R. Singh, Dean, College Development was constituted by the Executive Council vide resolution 13/19 dated 8.12.2011. 7. With regard to Registration of the Society of the Constituent college as per ordinance XXXV the said committee had submitted its report dated 24.1.2012. The report was placed before the Executive Council in its meeting held on 25.1.2012 and was approved by resolution 03/20(iii) subject to certain additions. The minutes of the meeting of the Executive Council held on 25.1.2012 were confirmed. In its 21st meeting held on 13.4.2012 action taken report on the decision of the Executive Council taken on 25.1.2012 was recorded. 8. He however, submits that as the amendments were not in the nature of usual and ordinary amendments of the Ordinances, therefore the same was forwarded to the Government of India, Ministry of Human Resource Development, Department of Higher Education for obtaining assent of the Visitor by the letter dated 23.3.2012 alongwith the resolution of the Executive Council and the proposal. He further submits that the Government of India forwarded the letter of the University dated 23.3.2012 alongwith enclosures to the University Grants Commission for its comments so as to enable the Ministry to process the proposal and consideration of the same for approval of the Visitor. Again on 3.11.2012, the University furnished the changes proposed in various Ordinances of the university in desired format to the Government of India, Human Resource Development for seeking assent of the Visitor of the University. 9. He further submits that the Government of India further sought the comments/clarifications from the University Grants Commission and the University. In reply thereto, the University vide letter 23.3.2012 informed that the Constituent colleges of the University have not complied with the provisions of getting their societies independently set up and registered to manage the affairs of the colleges exclusively. 10. He further submits that the Government of India further sought the comments/clarifications from the University Grants Commission and the University. In reply thereto, the University vide letter 23.3.2012 informed that the Constituent colleges of the University have not complied with the provisions of getting their societies independently set up and registered to manage the affairs of the colleges exclusively. 10. The Government of India vide letter 20.2.2013 wrote to the University Grants Commission to provide its comments at the earliest to enable the Ministry to take up the matter with Visitor for its onward decision to the University. 11. While summing up his arguments, learned counsel for the university submits that all the facts have been mentioned in the counter-affidavit and the communications have been annexed which reveal that the matter of approval to the amendments in the Ordinance relating to Constituent and Minority colleges of the University of Allahabad is engaging attention at the level of Ministry and the University Grants Commission to take up the matter with the Visitor and convey his decision to the University. Without having assent of the Visitor, the amended Ordinance cannot be implemented. 12. In rejoinder, learned counsel for the petitioners drew attention of the paragraphs 15 of the counter-affidavit which is quoted as under : “The University have not received any directions from the Ministry of Human Resource and Development to make any amendment in the ordinances. However, suitable amendments in certain ordinances relating to Constituent Colleges and Constituent Minority Colleges as well were made by the Executive Council only after reaching an understanding between authorities of the University of Allahabad and Managers of the Constituent Colleges.” 13. Before dealing with the submission of the learned counsel for the parties, it would be appropriate to go through the scheme of the University of Allahabad Act, 2005 (hereinafter referred to as ‘Act, 2005’) and the Statutes made thereunder. Section 29 of the Act deals with the power to make ordinances. The same is quoted below: “29. Before dealing with the submission of the learned counsel for the parties, it would be appropriate to go through the scheme of the University of Allahabad Act, 2005 (hereinafter referred to as ‘Act, 2005’) and the Statutes made thereunder. Section 29 of the Act deals with the power to make ordinances. The same is quoted below: “29. Power to make Ordinances.—(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely : (a) the admission and enrolment of students to the University and institutions maintained by or admitted to the privileges of the University; (b) the courses of study to be laid down for all degrees, diplomas and certificates of the University; (c) the medium of instruction and examination; (d) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same; (e) the fees to be charged for courses of study in the University and for admission to the examinations, degrees and diplomas of the University; (f) the institution of, and conditions for award of fellowships, scholarships, studentships, medals and prizes; (g) the conduct of examinations, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators; (h) the conditions of residence of students of the University; (i) the special arrangements, if any, which may be made for the residence, discipline and teaching of women students and the prescribing of special courses of studies for them; (j) the establishment of Centres, University Institutes, Boards of Studies, Specialised Laboratories and Committees; (k) the creation, composition and functions of any other body which is considered necessary for improving the academic life of the University; (l) the manner of co-operation and collaboration with other Universities, Institutions and other Agencies including learned bodies or associations; (m) the setting up of a machinery for redressal of grievances of employees; and (n) all other matters which by this Act or the Statutes, are to be or may be, provided for by the Ordinances. (2) The first Ordinances shall be made by the Vice-Chancellor with the previous approval of the Central Government and the Ordinances so made may be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes.” 14. Statute 31 deals with the Constituent colleges. Relevant Statute 31(4) and 31(5) are quoted below: “31(4) There shall be constituted, by Ordinances, a College Development Council to monitor and promote the academic functioning and development of the Constituent Colleges.” “31(5) The College Development Council shall be headed by the Dean of College Development, who shall be appointed by the Executive Council from among the Professors of the University in the manner prescribed by the Ordinances.” 15. Statute 40 deals with the procedure to make amendment etc. in the Ordinances by the Executive Council which is quoted below : “40. Statute 40 deals with the procedure to make amendment etc. in the Ordinances by the Executive Council which is quoted below : “40. Ordinances, how made.—(1) The first Ordinances made under sub -section (2) of Section 29 may be amended, repealed or added to add any time by the Executive Council in the manner specified in the following sub-section.” “(2) No Ordinance in respect of the matters enumerated in sub-section (1) of Section 29 shall be made by the Executive Council unless a draft of such Ordinance has been proposed by the Academic Council.” “(3) The Executive Council shall not have power to amend any draft of any ordinance proposed by the Academic Council under clause (2), but may reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part, together with any amendment which the Executive Council may suggest.” ‘(4) Where the Executive Council has rejected or returned the draft of an Ordinance proposed by the Academic Council, the Academic Council may consider the question afresh and in case the original draft is reaffirmed by a majority of not less than two thirds of the members present and voting and more than half the total number of members of the Academic Council, the draft may be sent back to the Executive Council which shall either adopt it or refer it to the Visitor whose decision shall be final.” “(5) Every Ordinance made by the Executive Council shall come into effect immediately.” “(6) Every ordinance made by the Executive Council shall be submitted to the Visitor within two weeks from the date of its adoption.” “(7) The Visitor shall have the power to direct the University to suspend the operation of any Ordinance.” “(8) The Visitor shall inform the Executive Council about his objection to the Ordinance referred to in Clause (7) and may, after receiving the comments of the University, either withdraw the order suspending the Ordinance or disallow the Ordinance, and his decision shall be final.” 16. Considering the scheme of the Act and the Statute, as per Section 29(2) the First ordinances shall be made by the Vice-Chancellor with the previous approval of the Central Government and the ordinances so made may be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statue. Considering the scheme of the Act and the Statute, as per Section 29(2) the First ordinances shall be made by the Vice-Chancellor with the previous approval of the Central Government and the ordinances so made may be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statue. The Statute 31 relates to the constituent colleges of the University which provides power to the Vice-Chancellor to issue directions to and to enforce his orders in the matters relating to constituent colleges’ management. The Statute 31(4) and 31(5) provide power by Ordinances to a College Development Council to monitor and promote the academic functioning and development of the constituent colleges. It further provides that the College Development Council shall be headed by the Dean of College Development, who shall be appointed by the Executive Council from among the Professors of the University in the manner prescribed by the Ordinances. Statute 40 provides for amendment/repeal and addition in the ordinances. It further provides that the no ordinance in respect of the matter enumerated in sub-section (1) of Section 29 shall be made by the Executive Council unless a draft of such Ordinance has been proposed by Academic Council. It further provides that the Executive Council may reject the proposal or return the draft to the Academic Council for reconsideration. The Statue 40(4) further provides that the Executive Council may either adopt the draft Ordinance or refer it to the Visitor whose decision would be final. 17. Further, Stature 40(5), (6), (7) and (8) shows that the draft/proposed Ordinances approved by the Executive Council shall come into effect immediately and shall be sent to the Visitor within two weeks from the date of its adoption. The Visitor may direct the University to suspend any ordinance and may inform the Executive Council about his objection to the Ordinances referred to in clause 7. He may after receiving the comment of the University withdraw the order suspending the Ordinance or disallow the Ordinance and his decision shall be final. 18. Thus, a combined reading of all these provisions makes it clear that on the draft proposal placed before the Executive Council, the Executive Council has power to either adopt it or refer it to the Visitor. 18. Thus, a combined reading of all these provisions makes it clear that on the draft proposal placed before the Executive Council, the Executive Council has power to either adopt it or refer it to the Visitor. In case the proposed Ordinance (amendment) is not adopted by the Executive Council and referred to the Visitor, the decision of the Visitor shall be final on the proposed Ordinances. However, in case, the Executive Council adopts the Ordinances, it shall come into effect immediately and the information is to be sent to the Visitor by the Executive Council within a period of two weeks from the date of its adoption. The Visitor has power even to suspend or disallow the Ordinances. It is also relevant to note that amendments in the Ordinances are proposed by a Two Member Committee constituted in accordance with the provisions of Statute 31(4) and (5) of the Statute and Ordinances XXXV vide resolution No. 13/19 dated 8.12.2011 by the Executive Council. The report of the committee constituted by the Executive Council i.e. College Development Council dated 24.1.2012 was considered and approved by the Executive Council in its meeting held on 25.1.2012. The resolution dated 25.1.2012 approved/affirmed in the meeting of the Executive Council dated 13.4.2012 is as under: “Resolved that the report dated 24.1.2012 of two member committee of Prof. N.R. Farooqi, Dean, Research & Development and Prof. L.R. Singh, Dean, College Development constituted in pursuance of Executive Council Resolution No. 13/19 dated 8.12.2011, be approved subject to the following addition at amendment proposed for clause 2(a) in the report.” “In case where capital investment for creating a stable/permanent property is to be done, this property would be pledged/mortgaged to the University before release of the fund for such creation of the property.” 19. In view of said resolution of the Executive Council and the entire scheme of the Act and Statute to monitor the constituent colleges, we are unable to accept the submission of learned counsel for the university that without receiving the assent of the Visitor the amended Ordinances adopted by the Executive Council cannot be implemented. 20. The scheme of the Act and the Statutes do not postulate any other interpretation. Ordinances made by the Executive Council is not dependent either on the consent or approval of the Visitor. It becomes effective as soon as it is made. 20. The scheme of the Act and the Statutes do not postulate any other interpretation. Ordinances made by the Executive Council is not dependent either on the consent or approval of the Visitor. It becomes effective as soon as it is made. Thus, the Ordinances adopted remains effective, unless suspended or disallowed by the Visitor. 21. Moreover, the university itself admits that amendment in ordinances have been made after adopting due procedure and keeping in mind the University Grants Commissions Regulation, 2010 with regard to Constituent Colleges. For the aforesaid reasons, we direct the university to implement amended Ordinances approved by the Executive Council in its meeting held on 25.1.2012, forthwith. 22. Thus, for the aforesaid reasons, the writ petition is allowed. ——————