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Allahabad High Court · body

2020 DIGILAW 475 (ALL)

Rajiv Kumar v. State of U. P.

2020-02-12

ASHWANI KUMAR MISHRA

body2020
JUDGMENT : 1. Short question that requires consideration in this case is as to whether the expression ‘the said constitution’ occurring in Clause 13.05 (e) of First Statutes of Meerut University requires prior permission of Vice-Chancellor before incorporating any change in the constitution of management of every college or is it restricted to Clause 13.05 (a) to (d) alone? Learned Senior Counsels for the rival parties submit that above being a pure question of law can be decided by this Court without formally calling of counter affidavit. 2. Kisan Degree College, Simbhaoli, (hereinafter referred to as the ‘College’) is college affiliated to Chaudhary Charan Singh University, Meerut (hereinafter referred to as the ‘University). The University is regulated by the provisions of Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the ‘Act of 1973’). Section 2(13) of the Act of 1973 defines management in following terms:- “2(13) 'management' in relation to an affiliated or associated college, means the managing committee or other body charged with managing the affairs of that college and recognised as such by the University : [Provided that in relation to any such college maintained by a Municipal Board or a Nagar Mahapalika, the expression 'management' means the education committee of such Board or Mahapalika as the case may be and the expression 'Head of the Management' means the Chairman of such committee;]” 3. Management of College is regulated by ‘Bye-laws of Kisan Degree College, Simbhaoli’ (hereinafter referred to as the ‘byelaws’). Clause 4 of the bye-laws defines committee of management in following terms:- “Committee of Management: The authority to manage and conduct the affairs of the college shall vest in the Managing Committee in accordance with the provisions of the bye-law of this college and the statutes and regulations of the Agra University Hand Book for affiliated colleges.” 4. Clause 5 of the bye-laws provides for constitution of committee of management. As per bye-laws, committee of management shall have fifteen members in all including the office-bearers, ex-officio and ordinary members, who are all defined in the bye-laws. Clause 6(2)(a) of the bye laws would be relevant for the present purposes and is extracted hereinafter:- “Seven members to be elected by the delegates of seven constituencies as defined by the Cane Development Union, Simbhaoli Ltd.” 5. Clause 6(2)(a) of the bye laws would be relevant for the present purposes and is extracted hereinafter:- “Seven members to be elected by the delegates of seven constituencies as defined by the Cane Development Union, Simbhaoli Ltd.” 5. The bye-laws as it originally stood are alleged to have been amended on 11.11.2016, and Clause 6(2)(a) stands substituted with a new clause providing for ‘eleven members to be elected by the general body from its members’. Sub-Clause (5) is also added in Clause 5(b) of the bye-laws, thereby including a category of life members who deposit Rs. 1000/-with the college, and duly received by Principal and Secretary of managing committee. These changes, apart from others in bye-laws of college are the bone of contention between parties. 6. According to petitioner, who claims to be a delegate from Cooperative Cane Development Union Simbhaoli and thereby a member of General Body of College, the amendment is invalid as procedure contemplated in Clause 25 of bye-laws read with other clauses, that specifies procedure for any modification therein, have not been followed. It is also urged that aforesaid amendment in byelaws is also invalid as Vice-Chancellor has not granted prior permission before making such changes in the constitution of management of college concerned. Reliance is placed upon Clause 13.05 of Statutes of University, which is reproduced hereinafter:- “13.05. It is also urged that aforesaid amendment in byelaws is also invalid as Vice-Chancellor has not granted prior permission before making such changes in the constitution of management of college concerned. Reliance is placed upon Clause 13.05 of Statutes of University, which is reproduced hereinafter:- “13.05. The constitution of the Management of every college shall provide that - (a) the Principal of the College shall be ex-officio member of the Management; (b) twenty five per centum of the members of the Management, are teachers (including the Principal); (c) the teachers (excluding the Principal) referred to in clause (b) are such members for a period of one year by rotation in order of seniority; (cc) one member of the Management shall be from the non-teaching class III employees of the College selected for a period of one year by rotation in order of seniority; (d) subject to the provisions of clause (c) no two members of the Management shall be related to each other within the meaning of the Explanation to Section 20; (e) no change in the said constitution shall be made except with the prior permission of the Vice-Chancellor; (f) if any question arises whether any person has been duly chose, as, or is entitled to be a member or office-bearer of the Management or whether the Management is legally constituted, the decision of the Vice-Chancellor shall be final; (g) the college is prepared to place before any person or persons authorised by the Vice-Chancellor or before the Panel of Inspectors appointed by the University all original documents pertaining to income and expenditure of the college including the accounts of the Society. Trust, Board or Parent body under which may be operating. (h) the income from the Endowment Funds referred to in Statute 13.06 shall be available for the maintenance of the College.” 7. The amendment in bye-laws appear to have been acknowledged by the Deputy Registrar, Firms, Societies & Chits, Meerut. These amended bye-laws also appear to have been followed in the last elections conducted to constitute committee of management of the college. Petitioner has approached this Court for issuing necessary directions to authorities to act as per Statutes and has also challenged the amendments made in the bye-laws as same are alleged to have been made without following the procedure contemplated under Clause 13.05 (e) of the First Statutes of University. 8. Petitioner has approached this Court for issuing necessary directions to authorities to act as per Statutes and has also challenged the amendments made in the bye-laws as same are alleged to have been made without following the procedure contemplated under Clause 13.05 (e) of the First Statutes of University. 8. I have heard Sri G.K. Singh, learned Senior Counsel assisted by Sri Arvind Kumar for petitioner, Sri R.K. Ojha, learned Senior Counsel assisted by Sri Rahul Chaudhary for respondent nos. 4 & 5. Sri Tejasvi Mishra holding brief of Sri Krishan Pahal has been heard for the University while Standing Counsel has been heard for State authorities. With the consent of learned counsel for parties and also as per the provisions of Rule of Court, this writ petition is being disposed of at admission stage itself. 9. Sri Tejasvi Mishra holding brief of Sri Krishan Pahal on behalf of the University contends that expression 'the said constitution' occurring in clause 13.05 of First Statutes of Meerut University refers to the constitution of the management of college and is not restricted to sub -clauses (a) to (d) thereof. It is submitted that Vice-Chancellor being the Principal Executive and Academic Officer of the University exercises general supervision and control over affairs of the University and a narrow interpretation is not required to be given to the expression “the said constitution” for the purposes of obtaining prior permission of the Vice-Chancellor. Sri Mishra further refers to sub clause (f) of Statute 13.05 to submit that power of the Vice Chancellor under said statute includes power to decide as to whether any person has been duly chosen as, or is entitled to be a member or office-bearer of the management or whether the Management is legally constituted. The Act of 1973 read with First Statues clearly contemplates vesting of authority in the Vice-Chancellor over its affiliated/constituent colleges and a narrow construction suggested by the private respondents would go against the statutory scheme, itself. 10. Sri R.K. Ojha appearing for private respondents however submits that Clause 13.05(e) has to be given a literal interpretation and the concern of Vice-Chancellor must be restricted to the stipulations made in sub clauses (a) to (d) of Statute 13.05. 10. Sri R.K. Ojha appearing for private respondents however submits that Clause 13.05(e) has to be given a literal interpretation and the concern of Vice-Chancellor must be restricted to the stipulations made in sub clauses (a) to (d) of Statute 13.05. Learned Senior Counsel with reference to dictionary meaning of term 'said' states that it refers to past tense and past participle of 'say' and would be synonymous to the expression 'aforesaid'. It is thus contended that Statute 13.05 (e) specifically refers to sub clauses (a) to (d) and a composite reading of the Statute makes it amply clear that requirement of prior permission from Vice Chancellor is restricted to sub clauses (a) to (d) only. 11. It is in the backdrop of above submissions that matter needs to be examined by this Court. Before proceeding further it would be worth noticing that import of Clause 13.05 of First Statutes of Meerut University fell for consideration before this Court in a bunch of Special Appeals with leading Special Appeal No. 237 of 2015, decided on 24.11.2016. The Division Bench noticed the issue, but refused to answer it and left it open to be decided in an appropriate case. The issue is, therefore, now required to be examined by this Court. 12. It is undisputed that no prior permission of the Vice Chancellor has been obtained before incorporating the disputed amendment in the bye-laws of college. Learned Senior Counsel for petitioner points out that Educational Society, Simbhaoli, Meerut had initially established two educational institutions namely Raghubir Singh Degree College affiliated to University and Raghubir Singh Kisan Inter College recognized under U.P. Intermediate Education Act, 1921. With passage of time and on account of various developments Raghubir Singh Degree College was renamed as Kisan Degree College, Simbhaoli i.e. the College. 13. Sub clause (e) of Statute 13.05 provides that no change in ‘the said constitution’ shall be made except with prior permission of Vice Chancellor. Before that, Statute 13.04 provides that before an application for affiliation is placed before Executive Council the Vice Chancellor must be satisfied that provisions of Statute 13.05, 13.06 and 13.07 have been complied with. From the scheme contained in the Statute it is clearly discernible that observance of Clause 13.05 would be necessary or else the application for affiliation to the University itself would not be considered. From the scheme contained in the Statute it is clearly discernible that observance of Clause 13.05 would be necessary or else the application for affiliation to the University itself would not be considered. The observance of the conditions laid down in Statute 13.05 are mandatory and every college has necessarily to ensure its compliance. 14. By virtue of Section 2(13) of Act 1973, read with First Statutes it is mandatory for every College desiring affiliation with the University to have a management for governance of the College. The College, once affiliated to University is virtually an extension of the University itself inasmuch as students of affiliated college are given degrees by the University itself. The University, therefore, is vitally interested in governance of the College as per Act 1973 and the Statutes and Ordinances framed thereunder. It is for this reason that Vice Chancellor is conferred with the authority under the Act to recognise management of affiliated colleges. The manner in which management of an affiliated college shall be run is also of relevance for the University. It is for these reasons that composition of management has to be clearly provided for. Clause 13.05 of the First Statutes of the University accordingly refers to the constitution of management. 15. Clause 13.05 of First Statutes provides that constitution of management of every college shall provide for matters specified in sub clauses (a) to (d). The use of expression “shall” clearly indicates that stipulations referred to in sub clauses (a) to (d) must exist and ordinarily any change therein would not be permissible so long as the Statutes are itself not amended. 16. The constitution of management, however, is not specified in the Statutes. The constitution of management of an affiliated college will have to have various other clauses/conditions for making the management of affiliated college functional in addition to subclauses (a) to (d). So far as other clauses/stipulations in the constitution of management are concerned the college will have freedom in its formulation. It is in this context that Clause 13.05 (e) will have to be examined. 17. As is clear from language of Clause 13.05 of Statutes constitution of every college shall incorporate the conditions as are enumerated under sub clauses (a) (b) (c) (cc) & (d) and since the word shall has been used, therefore, it is mandatory and not directory. It is in this context that Clause 13.05 (e) will have to be examined. 17. As is clear from language of Clause 13.05 of Statutes constitution of every college shall incorporate the conditions as are enumerated under sub clauses (a) (b) (c) (cc) & (d) and since the word shall has been used, therefore, it is mandatory and not directory. These conditions are to be there in the constitution of the management and they obviously cannot be amended or deleted. 18. Sub-clause (e) of Statute 13.05 stipulates that no change in constitution of management shall be made except with prior permission of the Vice Chancellor. In case argument of Sri Ojha is accepted that aforesaid statute refers to sub-clauses (a) to (d) only then it would mean that sub-clauses (a) to (d) can also be changed with the prior permission of the Vice Chancellor and, the Vice Chancellor will have no role to play in change of other clauses contained in the constitution of management. Both the premises would go contrary to the scheme and stipulations under Act of 1973 and the statutes framed thereunder. Neither sub-clauses (a) to (d) specified in Clause 13.05 can be altered even with the permission of the Vice Chancellor in view of use of the expression “shall” occurring in Clause 13.05 nor the Vice Chancellor can be denuded of any jurisdiction in the matter relating to change in the constitution of management of an affiliated college, being the Principal Executive Officer of the University the jurisdiction of Vice Chancellor to have a say in the change of constitution of management cannot be doubted. 19. Once it is found that the constitution of management is not restricted to the stipulations contained in sub-clauses (a) to (d) of Statute 13.05 then, the requirement of obtaining permission before making amendment in the constitution of management will have to be interpreted as referring to any clause in the constitution of management and not refer to sub clauses (a) to (d) of Statute 13.05. 20. It further transpires that in 1993 also an attempt was made to change constitution of managing committee and the Vice Chancellor vide his order dated 30th March, 2017 found the amendment to be bad for the reason that no prior permission was obtained from the Vice Chancellor. 20. It further transpires that in 1993 also an attempt was made to change constitution of managing committee and the Vice Chancellor vide his order dated 30th March, 2017 found the amendment to be bad for the reason that no prior permission was obtained from the Vice Chancellor. It is contended that this order has attained finality with dismissal of the writ petition filed against it in default. 21. It further appears that the Vice Chancellor initially stayed the elections, but without ensuring compliance to Statute 13.05(e) has withdrawn his earlier orders restricting the holding of elections. The Vice Chancellor does not appear to have examined the implication of non observance of clause 13.05(e) while passing the subsequent order. 22. In light of discussions and deliberations made above, it is held that obtaining of prior permission from the Vice Chancellor before affecting any change in constitution of management of an affiliated college would be impermissible in law. Consequently, the amendment made in the constitution of management on 11.11.2016 is not liable to be sustained and is quashed. The Vice Chancellor, therefore, shall pass necessary consequential orders as may be warranted in law within a period of two months from the date of presentation of certified copy of this order. 23. Writ petition is allowed. No order is passed as to costs.