M.S. Jamdar, J.
1. The petitioner-society Shamlal Smarak Arya Shikshan Sanstha was established in 1950 and it runs several educational institutions within the jurisdiction of the Marathwada University. It is claimed to be a minority institution founded by the Arya Samaj. This claim, however, is challenge by the respondents.
2. One of the institution which was founded and managed by the petitioner-Society is the Engineering college at Udgir. This college was started in September, 1983 and during the first academic year of its existence it was allowed to start the first year of the four degree course in engineering. The affiliation in this behalf was granted by the State Government Notification dated January 13,1984, subject to the five conditions of affiliation imposed by the University. Though the result of the first examination of the students who appeared for the said examination through the college of the petitioner -society was quashed on the ground of malpractices, the college was accorded affiliation for the first and second year of the degree course in engineering during the year 1984-85 vide Government Notification dated February 17, 1986. For the year 1985-86 the affiliation for the first and second year of the degree course has been recommended by the University on July 17, 1985 and State Government is yet to accord such sanction for the affiliation though the academic years is already over.
3. Before the Government granted affiliation for the year 1984 -86 vide Government Notification dated February 17, 1986 a show-cause notice dated August 6/7, 1984, was issued under section 49 of the Marathwada University Act (hereinafter referred to as 'the Act'). 1974, calling upon the petitioner as to why the affiliation should not be withdrawn. Admittedly, this show -cause notice was acted upon and on July 26, 1985 the petitioner filed an application under sections 43, 44, and 45 of the Act for continuation of the affiliation for the year 1986-87 while this application was pending consideration and even before the Government granted affiliation for the year 194-85 which was mention above was granted by Government Notification dated February 17, 1986, University served the petitioner with another show-cause notice under section 49 dated September 24,1985, calling upon the petitioner to show-cause why its affiliation for the year 1985-86 should not be withdrawn. To this notice the petitioner submitted its reply on October 7, 1985. As some technical mistake had crept in the notice dated September 24, 1985, the University served petitioner with another notice dated November 5, 1985, extending the time for showing cause and the petitioner-Society gave a formal reply to this second notice on November 17, 1985.
4. Thereafter by a resolution dated January 30, 1986, the Executive Council of Marathwada University appointed a committee under the chairmanship of the Principal Shri. Dhat under section 49(4) of the Act make an enquiry in the light of show-cause notices issued to the petitioner and the replies submitted by the petitioner to the said notices and to make recommendations to the Executive Council as to what action the Executive Council should take in the matter. The committee which is known as 'Dhat Committee' consisted of four members including the Chairman, only one of them being a member of the Academic Council. The Dhat-Committee submitted its report to the Executive Council on April 29, 1986 and on the basis of the said report the Executive Council resolved to recommend to the Government to take action against the petitioner under sections 43 and 44 of the Act rejecting their affiliation for the year 1986-87, which, as mentioned above, was field on July 26, 1985.
5. The said resolution was passed by the Executive Council at its meeting held on 31st May, 1986, and Registrar vide his letter dated 5th June, 1986, informed the Principle of the Engineering Collage, inter alia as follows :
'Whereas, after having considered the said Report of Principle Dhat Committee, the Executive Council at its meeting held on May 31, 1986 and accepted it and resolved that the continuation of affiliation of this Engineering College from the academic year 1986-87, should be recommended to the Government of Maharashtra under the provisions of sections 43 and 44 of the Marathwada University Act, 1974.'
'In view of the said decision of the Executive Council, I hereby inform you that the said Engineering College of your Society at Udgir is not continued to be affiliated to this University from the academic year 1986-87 for all purposes. This recommendation of the University is being forwarded to the Government of Maharashtra for the necessary action as well as to the press notifying this position to all concerned I further inform you that in view of the said decision of the university, you should not admit any student to any of the courses in the said Engineering College from the academic year 1986-87 by issuing necessary instructions.'
It is this action of the University which is the subject matter of challenge in this petition.
6. The aforesaid action of the University was sought to be challenged on three grounds, namely: that the Dhat Committee whose report is the basis of the action taken by the Executive Council of the University was not properly constituted and thus, it was not competent to hold the local enquiry contemplated by Clause (a) of sub-section (5) of section 43 or the inspection contemplated by sub-section (4) of section 49 or one under sub-section (3) of section 47; (2) that the mandatory procedure prescribed for deciding an application for continuation of the affiliation was not followed and that the action was taken mala fide, in as much as, it was inordinately delayed and that, respondent No. 2 who moved the Resolution in the Executive Council, respondent No. 3 who is the Vice-Chancellor of the University, respondent No. 4 who is the member of the Executive Council of the University and respondent No. 5 bore a grudge against the petitioner-Society and were actuated with malice against the petitioner for various reasons. It is, however, not necessary to elaborate and consider the allegations of factual malice attributed to respondent Nos. 2 to 5 because at the hearing of this petition, this allegation was not pressed.
7. The respondents questioned the maintainability of the petition on the ground that no final order rejecting the petitioner's application for continuation of the affiliation is not yet passed by the State Government and that, what the Executive Council has done by impugned Resolution is merely to recommend to the State Government not to continue the affiliation for the Year 1986-87. It is also contained that the petitioner has not availed of the alternate remedy provided by section 77 of the Act, the petition should not be entertained. It is also the case of respondents that the impugned Resolution was passed by the Executive Council under sub-section (4) of section 43 and nor under Clause (c) of sub-section (5) of section 43 and hence, it was not necessary to follow the procedure prescribed in sub-section (5). As regards the competency of the Dhat Committee, it is contended that the enquiry contemplated under Clause (a) of sub-section (5) of section 43 and the inspection contemplated by sub-section (4) of section 49 are different from the inspection contemplated under sub-section (3) of section 47 and hence, in constituting the Committee it was not necessary to comply with Ordinances 141 and 142 of the Marathwada University. It was contended that the committees contemplated under section 43(5) and section 49(4) or section 49(7) are not governed by Ordinances 141 and 142, even assuming that it was incumbent on the University to appoint a local enquiry committee as contemplated by section 43(5)(a) of the University Act. The burden of the song, however, is that sub-section (4) of section 43 confers wide powers on the Executive Council to recommend to the State Government to reject the application for affiliation even on merits of the claim and the power is not restricted only to the determination of question of priority. What, according to the University authorities, is the sweep of the power conferred by section 43 can be best stated in the words of the Registrar who has failed affidavit-in-reply on behalf of the University and the Vice-Chancellor. According to him :
'In the matters of continuation of affiliation the Executive Council of the University is the sole Judge for recommending or not recommending the same.'
Further contrary to what is mentioned in the Resolution appointing the Dhat Committee it was sought to be contended that the committee was constituted in exercise of the powers conferred by section 24(1)(xxiv) of the Act and the enquiry made by the Dhat Committee was just a preliminary enquiry.
8. Before we deal with these rival contentions we would like to state that for the determination of the questions involved in the petition it is not necessary to determine or adjudicate the claim of petitioner that it is a minority institution within the meaning of Article 30(1) of the Constitution of India because it is not the case of the petitioner that any of the provisions of the Act or the Ordinances of the University are volatile of Articles 30(1) of the constitution on the footing that they take away or abridge the rights conferred on the minority institution by the said Article.
9. The provisions governing affiliation and recognition of colleges are contained in sections 43 to 50 of Chapter VII of the Act. Sub-section (1) of section 43 lays down that the need for opening any new College shall be determined by the Executive Council in accordance with such plan for educational development as may be prepared by the university with the approval of the State government, for location of institutions of higher education in a manner ensuring an equitable distribution of facilities for higher education, having due regard, in particular, to the needs of the unserved and under developed areas in the University area. Sub-section (2) further provides that no application for opening a new college, which is not in conformity with such plan, shall be considered by the Executive Council without the approval of the State Government. As laid down in sub-section (3) a college applying for affiliation to the University shall apply to the registrar, within the time-limit fixed by the Ordinances made in that behalf, and shall satisfy the Executive and Academic Councils that the requirement mentioned in Clauses (a) to (n) are duly complied with sub-section (4) of section 43 on which great reliance is placed by the respondent reads as follows :
'The Executive Council shall scrutinise and determine the order of priority of the applications received and forward the results to the State Government for approval;'
Sub-section (4-A), which was inserted by the Amending Act No. 14 of 1984, which came into force on 23-5-1984, enables any person to apply before 30th November in any year for opening of a new college, notwithstanding anything contained in sub-sections (1) to (4) of section 43 or any other provision of the Act, Statute, Ordinance Regulations and Rules made thereunder. Clause (b) and (c) of sub-section (4-A) prescribe the procedure which is expected to be followed by the university authorities in respect or such applications, that is in, respect of applications received under Clause (a) of sub-section (4-A) of section 43. Sub-section (5) prescribes the procedure which the Executive Council is expected to follow on receipt of the approval contemplated by sub-section (4) of section 43 while sub- section (6) to (8) lay down the follow up action which is expected to be taken in the matter of affiliation after Executive council expresses its opinion. As the questions posed before us in this petition depends to a large extent on the interpretation of the provision contained in sub-sections (5) to (8) we would like quote those provision ad verbatim.
'(5) On receipt of such approval the Executive council shall:---
(a) Direct a local inquiry to be made, by a competent person or persons authorized by it in that behalf, in regard to the matters stated in sub-section (3) and such other matters as it may think necessary and relevant;
(b) Make such further inquiry as may appear to it to be necessary, and
(c) consider the result of such inquiry and record its opinion, after consulting the Academic Council whether the application should be granted or rejected, in part or in whole;
(6) The Register shall submit application and all proceedings of the Academic and Executive Council to the Senate and the senate shall, after such further inquiry as it may think necessary, record its resolution, which shall be forwarded to the State Government, together with all proceedings, for deciding to grant or reject the application, in part or in whole.
(7) Where the application, or any part thereof is granted, the order of the State Government shall specify the courses of instruction in respect of which the college is to be affiliated, the maximum number of student to be admitted to each such course and the period for which the affiliated, is granted and where the application for any part thereof, is rejected the grounds for such rejection shall be stated
(8) As soon as possible after the state Government makes its order, the Registrar, shall submit to the Executive and Academic Councils a full report regarding the application and the action taken thereon under sub-sections (3) to (6) together with all proceeding relating thereto.'
Sub-section (9) of section 43 permits withdrawal of the application before any order is made under sub-section (7). Section 44 which makes the procedure prescribed in section 43 applicable to extension and continuation of affiliation read as follows:
'Where a College desires to add to the courses of instruction in respect of which it is affiliated or to continue the affiliation, the procedure prescribed in the last preceding section shall so far as may be, be followed.'
Section 45 deals with permanent affiliation while section 46 deals with recognition of Institution. Section 50 deals with withdrawal or suspension of recognition. These provisions are not relevant for the purposes of the inquiry in question nor is section 48 which relates to the constitution of local managing committees or advisory committees by the existing affiliated colleges.
10. Section 47 provides for the submission of certain information by the affiliated colleges and recognized Institutions and the inspection of such colleges and Institutions. Sub-section (2) contemplates inspection of such college or institution at least once in every two years and sub-section (3) empowers the Executive Council to call upon such college or institution to take such action as it thinks necessary regarding any of the matters stated in sub-section (3) of section 43 or sub-section (2) of section 46, as the case may be. Section 49 relates to withdrawal of affiliation. Even though the case before us is not one of withdrawal of affiliation, the provisions of this section are relevant to some extent because before taking the impugned action, the Executive Council had issued as many as three notices under section 49 to the petitioner-Institution calling upon it to show cause why the affiliation of the Engineering Colleges at Udgir should not be withdrawn and also because in the resolution appointed the Dhat Committee, it was mentioned that the Committee was appointed under sub-section (4) of section 49. Sub-section (1) of section 49 lays down that affiliation rights conferred on a college can be withdrawn in part or in whole or modified, if the College has failed to carry out any of the provisions of sub-section (3) of section 43, or to observe any of the conditions of its affiliation, or is conducted in a manner prejudicial to the interests of the University or its standards. A motion for such withdrawal or modification of such rights has to be initiated only in the Executive Council and before considering such motion, the Executive Council is bound to send a copy of the notice given by the member moving the motion and also of the statement containing grounds on which the notice is given to the Management, with copies thereof to the Principle of the College, together with intimation that any representation, if submitted by the management in writing within a period specified in the intimation shall be considered by the Executive Council. Sub-section (4) lays down that on receipt of such representation or expiry of the period referred to in sub-section (3), the Executive Council shall, after considering the notice of motion, the statement and the representation, if any and after such inspection by a committee of competent persons authorised by it in that behalf and such further enquiry as it thinks necessary, as certain and consider the view of the Academic Council on the matter, record its opinion thereon and thereafter recommend to the Senate the action to be taken and such recommendation shall be deemed to have been duly passed by the Senate if supported by a majority of not less than two-thirds of members present at the meeting of the Senate. Sub-section (5) lays down that when any such recommendation is passed by the Senate, the Registrar shall submit the opinion and all proceedings, if any, of the Senate and the Academic and Executive Councils relating thereto, to the State Government, which shall after such further inquiry as it thinks necessary, make such order as it decides. Sub-section (6) enjoins a duty of recording in the order the grounds for such withdrawal or modification. Sub-section (7) empowers the Executive Council to arrange for a special inspection of any affiliated college on such aspects of its working as it thinks necessary. Sub-section (8) enables the Executive Council on the basis of the report made to it and after giving reasonable opportunity to the management of being heard, and making such further inquiry as it thinks fit, give directions to the management requiring it to rectify any defeat or deficiency found in the working of the College. Sub-section (9) provides for the action which can be taken against the management for not complying with the directions issued under sub-section (8). Sub-section (10) enables the University with the concurrence of the State Government even to take over the college. Sub-section (11) empowers the University to take over the management of a college in the event of the closure of such a college by the management.
11. It is an admitted position that no action of withdrawal of affiliation for the year 1985-86 was taken against the Engineering College of the petitioner-society on the basis of the report of the Dhat Committee even though three show-cause notices, dated 6th August, 1984, 24th September, 1985 and 3rd April, 1986, were issued and even though, as mentioned above, the Dhat-committee was specifically appointed under sub-section (4) of section 49 to make enquiry in the light of the said show-cause notices and the replies submitted by the petitioner to the said notices and to make recommendations to the Executive Council as to what action the Executive Council should take in the matter.
12. Though no action was taken under section 49 on the basis of the report of the Dhat-committee the Executive Council made the said report the basis of the impugned Resolution recommending to the State Government under sections 43 and 44 of the Act not to continue the affiliation of the Engineering college of the petitioner for the academic year 1986-87. It is contended on behalf of the petitioner and in our view rightly, that no action under sections 43 and 44 of the Act could be taken on the basis of the said report. The Dhat-Committee was not appointed for the local inquiry contemplated by Clause (a) of sub-section (5) of section 43, for enquiring into the matters stated in sub-section (3) of section 46. As mentioned above, the committee was appointed for the purpose of inspection contemplated by sub-section (4) of section 49. It is, however, difficult to accept the submission that the Committee was not properly constituted as per Ordinances 141 and 142, in as much as, it did not consist of three members of the Academic Council.
13. Shri B.N. Deshmukh, learned Counsel for the respondents Nos. 1 to 3 rightly urged that the enquiry contemplated by Clause (a) of sub-section (5) of section 45 sic. 43 and the inspection contemplated by sub-section (4) of section 49 are different from the routine inspection contemplated by section 47(2) and hence, Ordinances 141 and 142 are not applicable to the inquiry committee appointed under Clause (a) of sub-section (5) of section 43 of the Act or the Committee of inspection contemplated or appointed under sub-section (4) of section 49. The committee appointed under Clause (a) of sub-section (5) of section 43 is expected to carry out a local enquiry while the committees contemplated by Ordinances 141 and 142 are expected to carry out routine inspections contemplated by section 47 of the Act. Even though section 39(viii) empowers the Executive Council to make ordinances for the inspection of colleges recognised institutions and hostels and even though Ordinances 141 and 142 are framed in exercise of the said power, the Ordinances are restricted to the inspection contemplated by section 47 only. What ordinance 141 lays down is that an inspection of every affiliated college and recognised institution shall be held under section 47 of the Act by the committee of not more than 3 persons from amongst the members of the Academic Council to be appointed by the Executive Council at least once in two years and at other times when in the judgment of the Executive Council special reasons exist in case of any college or institution for such inspection. It is only when inspection under section 47 is to be carried out that the committee must be constituted as per Ordinance 141 and only such a committee must consist of members of the Academic Council not exceeding three in number. As a matter of fact, all the members of the committee appointed under section 47 of the Act must be the members of the Academic Council, their number not exceeding three. Ordinance 142 also applied only to the inspection contemplated by Ordinance 141, which, as held above, is the inspection under section 47 of the Act. By the very wording of Ordinances 141 and 142, those ordinances are not applicable to a local enquiry committee appointed under Clause (a) of sub-section (5) of section 43 or a committee of inspection appointed under section 49(4). The only requirements is that the members of the committee appointed under section 43(5)(a) or (49)(4) must consist of persons who in the opinion of the Executive Council are competent. No doubt neither in the Act nor ordinances prescribes qualifications of persons who can be appointed as members of such a committee but this lacuna in the provisions of the Act and Ordinances does not justify the application of Ordinances 141 and 142 to such committees. It is pertinent to note in this context that the local enquiry committee contemplated by Clause (a) of sub- section (5) of section 43 of the Act can be a one-man committee because the local enquiry can be made by 'the competent person or persons authorised by the Executive Council in that behalf'. There is, therefore, no substances in the contention that as members of the Dhat-committee were not the members of the Academic council, the committee was not legally constituted. As mentioned above, it was constituted under sub-section (4) of section 49 and as held above, it was not necessary that the members of the committee should have been the members of the Academic Council. Ordinance 141 prescribes a limit on the number of members of a committee appointed for inspection under section 47. The number can not exceed three. All of them must be the members of the Academic Council. There is no such restriction in case of an inquiry committee appointed under Clause (a) sub-section (5) of section 43 or a committee of inspection appointed under section 49(4). There is, therefore, no substances in the challenge to the constitution of the Dhat-committee. But that aspect of the matter has no significance while considering the questions as to whether the procedure contemplated by sub-section (5) of section 43 was followed before rejecting the application of the petitioner society for extension and continuation of the affiliation because admittedly, the Dhat committee was not appointed under clause (a) of sub-section (5) of section 43. The committee cannot be considered as one constituted under Clause (a) of sub-section (5) of section 43 because the purpose for which a committee can be constituted under that provision and the purpose of which a committee of inspection can be constituted under section 49(4) are materially different. The Dhat-Committee was appointed for a different purpose. The said committee can not be considered as one constituted under Clause (a) of sub-section (5) of section 43 and hence the Executive Council was not competent to base its recommendations under sections 43 and 44 on the report of the Dhat-committee.
14. Shri Deshmukh contended that the Dhat-committee was appointed under section 24 1) (xxiv) of the Act which empowers the Executive Council to cause an inquiry to be made in respect of any matter concerning the proper conduct working and finances of the colleges and recognised institutions. Shri Radhakrishanan on the contrary tried to contend that the Dhat-committee was appointed basically for the purpose of considering the question of fulfilment of conditions for affiliation, that is, for the purposes mentioned in Ordinance 142 and hence, it was a committee contemplated by section 47(2) read with section 43(3) and hence, it was governed by Ordinance 141. Both these rival contentions deserve to be rejected in view of the specific mention in the resolution of the Executive Council that the Dhat-committee was appointed under sub-section (4) of section 49.
15. As the Dhat committee was not appointed under section 43(5)(a) no action could be taken against the petitioner society under sections 43 and 44 of the Act on the basis of the said report. Moreover, the Executive Council could not have taken that action without supplying a copy of the said report to the petitioner society and without calling upon the petitioner society to show cause against the report and as to why the action proposed by the committee should not be taken.
16. Even assuming that the report of the Dhat committee can be considered as a report of the local enquiry committee constitute under Clause (a) sub section (5) of section 43, it is an admitted position that the Executive Council did not make any further inquiry contemplated by clause (b) of sub-section (5) of section 43 nor the Academic Council was consulted as to whether the applications of the petitioner-society should be granted or rejected before the Executive Council recorded its opinion. Moreover, the Executive Council was not competent to straightway make the recommendation to the state Government. As provided by sub section (6) of section 43 it was incumbent on the Registrar to submit the application and all the proceedings of the Academic and Executive Councils to the Senate and it was only after the senate, after such further enquiry, as it thought necessary, recorded its resolutions, that all the proceedings together with the said resolution of the Senate were expected to be forwarded to the State Government for deciding whether to grant or reject the application for affiliation. From the resolution adopted by the Executive Council and from the letter addressed to the petitioner society by the Registrar it is clear that it was not proposed to place the matter before the Senate and that the recommendation to the State Government was sought to be made not only without consulting the Academic Council but by passing the Senate also. Therefore, there is no manner of doubt that the impugned resolution passed by the Executive Council and follow-up action taken by the Registrar was in complete violation of the provisions contained in sub sections (5) to (8) of section 43 of the Act.
17. This brings us to the main argument advanced on behalf of the University by Shri. B.N. Deshmukh that the action was taken under sub-section (4) of section 43 and it was not governed by the subsequent provisions of the said section. We are unable to accept this argument because the recommendation refusing extension or continuation cannot be taken by the Executive Council in exercise of the powers conferred by sub-section (4) of section 43. Sub-section (4) empowers the Executive Council only to determine the order of priority of applications received after scrutinising them. No question of determining priorities arises unless there are several applications for affiliation from institutions desiring to start new colleges or desiring to start new courses of instructions. Such a question does not arise when a college which has already secured affiliation for the earlier years, seeks extension of affiliation to start the next year of the course. Such a question does not arise even in case when the institution which is affiliated only for a particular period seeks continuation of the affiliation for further period. The question of determining priorities also does not arise when only one institution applies for affiliation for a new college or for starting a new course, because, in our view, the question of determining the order of priority arises only when there are several applications for starting a new college or for starting a new course. No doubt, the Executive Council can scrutinise the applications received but that is only for the purpose of determining the order of priority of the applications received. If there is no question of determining priority and if there is only one application for affiliation the question of the Executive Council exercising the powers conferred under sub-section (4) does not arise and in exercise of that power the Executive Council is not competent to reject the application on merits. The only jurisdiction the Executive Council has under sub-section. (4) is to determine the order of priority of applications received and to recommend to the state Government which of the applicants should be preferred for granting affiliation. While making such a recommendation under sub-section (4) of section 43 the Executive Council is not excepted to take into consideration whether the conditions of affiliation mentioned in Clauses (a) to (n) of sub-sections (3) of section 43 are satisfied because the satisfaction contemplated by sub-section (3) is not only of is not only of the Executive Council but also of the Academic Council and the Academic Council can consider this question when it is consulted by the Executive Council can contemplated by clause (c) of sub section (5) of section 43 after the report of the local inquiry is received and after the Executive Council makes such further inquiry as it deems fit as contemplated by clause (b) of sub-section (5) of section 43 The only matters that can be taken into consideration by the Executive council while acting under sub-section (4) are those enumerated in sub section (1) of section 43 which lays down that the need for opening of a new college shall be determined by the Executive Council in accordance with such plan for educational development as may be prepared by the University with the approval of the State Government for the location of institutions of higher education in a manner ensuring an equitable distribution of facilities for higher education having due regard in particular to the needs of unserved and under developed areas in the University area. The Executive Council, therefore, while determining the priorities must do so in accordance with the plan for educational development prepared by the University in a manner ensuring equitable distribution of facilities for higher education having due regard in particular to the needs of the unserved and under developed areas in the University area. These are the only considerations by which the Executive Council can be guided while determining the priorities which question as mentioned above arises only when there are several applications for affiliation for new colleges or starting new courses of instructions. The questions whether a particular institutions applying for affiliation satisfies the requirements of Clauses (a) to (n) of sub-section (3) of section 43 can be considered by the Executive Council only under sub section (5) of section 43 on the basis of the local inquiry to be made by a competent person or persons authorised by the Exclusive Council in that behalf and after making such further inquiry as is found necessary in the context of the report and after consulting the Academic Council.
18. There is also material distinction between determining the order of priority under sub-section (4) of section 43 and rejecting the application for extension or continuation of affiliation and withdrawing affiliation. It may be that while determining the priorities, the applications of some of the applicants may be rejected as a consequence of some other institution being preferred in the matter of affiliation on the touchstone of section 43 (1). But that recommendation of the Executive Council and the consequent action of the State Government is not penal actions. Refusing extension or continuation of affiliation and withdrawal of affiliation are to some extent penal actions. Refusing to allow an institution which is already running the courses for the earlier year of a degree, to start the course of the subsequent year or refusing to continue the affiliation for further period amounts to penalty because the institutions is already established on the basis of the approval granted under sub-section (4) and also under sub-section (6) of section 43. In such matters, therefore, the Executive Council would not be the sole judge which it is in the matter of determining the order of priorities of the applications received. Hence, while considering the question whether the affiliation should be granted to institution which has been granted priority under sub-section (4) or whether an already affiliated college or institution should be granted extension or continuation of affiliation the procedure prescribed in sub-sections (5) to (8) must be followed.
19. No doubt, section 44 lays down that when a college desires to add to the courses of instructions in respect of which it is affiliated or to continue the affiliation the procedure prescribed in section 43 shall, so far as may be, be followed. The phrase 'so far so may be' cannot be interpreted to mean that only the procedure prescribed in sub-section (4) is expected to be followed. The import of the phrase, according to us, is that in cases where there are several applications for starting new colleges or a new course of instruction the procedure prescribed in sub-sections (4) to (8) must be followed. When there is no question of determining priorities, the procedure that is required to be followed would be the procedure prescribed in sub-sections (5) to (8). In the later case sub-section (4) has no application. It was, therefore, incumbent on the Executive Council, before passing the impugned resolution, (1) to appoint a local inquiry committee to inquire into the matters stated in sub-section (3) of section 46, (2) to make such further inquiry as it deemed necessary and (3) to consult the Academic Council. It was also necessary for the Executive Council before making the recommendation to the State Government to place the matters before senate. The executive council was not competent to forward its own recommendations to the State Government unless the recommendation was accepted by the Senate by passing a resolution. This procedure admittedly is not followed in this case. The impugned resolution passed by the Executive Council and its action to recommend to the State Government for rejecting the application of the petitioner-society for continuation of affiliation for the year 1986-87 were illegal and void and were violative of the mandatory provisions of the Marathwada University Act.
20. There is also substance in the contention that the action of the University authorities in rejecting the petitioner's application for continuation of affiliation is male fide. The application for continuation of affiliation for the year 1986-87 was filed as far as back as on 26th July, 1985. No local inquiry committee was appointed as contemplated by Clause (a) to sub-section (5) of section 43. The Dhat-committee which as mentioned above was appointed under sub-section (4) of section 49 was appointed on 30th January, 1986. The committee submitted its report on 29th April, 1986 and the Executive Council passed the resolution in question as late as on 31st May, 1986, without giving any opportunity to the petitioner society to show cause against the recommendations made by the Dhat Committee. The copy of the report was forwarded to the petitioner-society alongwith the above referred letter of Register dated 5th June, 1986. The recommendation of the Executive Council was informed to the petitioner society by the said letter just ten days before the academic year was to commence and when all arrangement for continuation of the college and starting the third year course must have been ready. There is no explanation as to why no action was taken on the application filed on 25th July, 1985 till 31st May, 1986. There is also nothing to show that before the commencement of the academic year, the recommendation of the Executive Council was placed before the State Government. Not only the mandatory procedure was not followed but the action was inordinately delayed. There is, therefore, justification for drawing an interference that the concerned university authorities acted mala fide in passing the impugned resolution and making the impugned recommendation to the State Government.
21. An attempt was made to challenge the maintainability of the petition on the ground that no final order is passed by the State Government and that the resolution of the executive Council is purely recommendatory. We are unable to accept this contention for two reasons. Firstly, the resolution recommending that affiliation should be refused is final so far as the Executive Council is concerned. Secondly, the state Government could not have and has not taken final decision before the commencement of the academic year for which the affiliation is sought. It is also pertinent to note in this context the directions issued by the Registrar to the petitioner-society. These directions assumed finality to the recommendations made by the Executive Council. Moreover, the legality of the resolution passed by the Executive Council can be questioned and can be adjudicated upon even though the resolution is of a recommendatory character. There is, therefore, no substance in the contention that as no final action was taken by the State Government, the petition itself is not maintainable.
22. The maintainability of the petition was challenged also on the ground that the petitioner did not avail of the alternative remedy provided by section 77 of the Marathwada University Act. This submission however, deserves to be rejected because in view of the inordinate delay committed by the Executive Council in passing the impugned resolution, the remedy provided by section 77 was rendered nugatory. The matter was not even placed before the State Government in time, that is, before the commencement of the Academic year and hence there was no scope to approach the chancellor in this behalf. Moreover, the resolution passed by the Executive Council was illegal on the face of it and the action was mala fide, inasmuch as, it, was inordinately delayed and hence under the circumstances the remedy provided by section 77 of the Act would not have been as efficacious as necessary. This, in our view is a very fit case in which petitioner would be justified in invoking the writ jurisdiction of this Court without availing of the alternative remedy provided by section 77 of the Act.
23. In the result, therefore, the petitioner is allowed. The resolution passed by the Executive Council in its meeting held on 31st may, 1986, recommending to the State Government that the affiliation of the Engineering College of the petitioner-society should not be continued for the year 1986-87 and the order issued by the Registrar of the University in his letter dated 5-6-1986 are quashed. The extension and continuation of affiliation sough by the petitioner vide their application dated 26th July, 1985, is granted and the society is permitted to run its Engineering College at Udgir for the year 1986-87 and to conduct the courses for first, second and third year of the Engineering degree during that year. Respondent No. 1 is further directed to extend the date for admission and eligibility of the students in petitioner's engineering college at Udgir upto 18th August, 1986. No order as to costs. Rule is made absolute accordingly.
24. At this stage, Mr. B.N. Deshmukh sought leave on behalf of respondents No. 1 to appeal to the Supreme Court. Leave refused.