Judgment:
A.K. Yog, J.
1. Committee of Management, Maharaja Harish Chand Post Graduate College (the petitioner) is aggrieved by the impugned order dated 29-9-2003/Annexure-14 to the petition passed by Respondent No. 3 the Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly (rejecting petitioner's representation dated 3-8-2002/Annexure-l1 to the petition) in the matter of grant of 'affiliation' to run post graduate classes in Sociology and Economics; and hence filed this writ petition under Article 226, Constitution of India claiming following reliefs-
'(A) Issue a writ or direction or pass order in the nature of certiorari quashing the order No. E-52/9/45/ dated 29-9-2003 passed by the respondent No. 3 (Annexure-14 to this writ petition)'
2. Maharaja Harish Chandra Post Graduate College, Moradabad (called the college) managed by the petitioner is an affiliated Post Graduate College of Mahatma Jyotiba Phule Rohilkhand University, Bareilly (called 'University') as contemplated under U.P. State Universities Act, 1973 (called the 'Act'), 'First Statutes' and Ordinances of the University.
3. Petitioner (Committee of Management of the college) submitted an application for seeking recognition/affiliation to run 'post graduate classes' in the subjects of 'Sociology' and 'Economics' under Section 37(2) of the Act on October 18, 1995 as required under law.
4. Initially, as provided under the Act and the Statutes, on receipt of recommendation from the Executive Council of the University, the Chancellor of the University granted temporary/provisional affiliation, which was subsequently extended from time to time (on the basis of recommendations of the Executive Council of the University), as contemplated under Section 37 of the Act, as given hereunder:
1-Order dated 18-10-1995- w.e.f. 1-2-95 to 30-6-99 (Annex. 1 to W.P.).
2-Order dated 26-6-1999 - w.e.f. 1-7-97 to 30-6-99 (Annex. -2 to W.P.)
3-Order dated 26-8-1999 - w.e.f. 1-7-99 to 30-6-00 (Annex. 3 to W.P.)
4-Order dated 14-6-2000 - w.e.f. 1-7-00 to 30-6-01 (Annex.4 to W.P.)
5-Order dated 4-6-2001 - w.e.f. 1-7-01 to 30-6-02 (Annex.8 to W.P.)
6-Order dated 20-7-2002* - w.e.f. 1-7-02 to 30-6-03 (Annex.10 to W.P.)
*Note- G.O. dt. 11-11-97/Annex.l2 to W.P. sent to University on 7-1-1998 dealing with courses under A1CTE (All India Council of TECHNICAL EDUCATION ) & Courses outside AICTE-upto Graduate to start after 1-7-1998 only were referred to for the first time in said Chancellor orders dated 20-7-2002.
5. The record before us shows that the Registrar of the University, vide letter dated 11-10-2000/ Annexure-5 to W.P. addressed to Chancellor in the matter of grant of permanent affiliation in question, referred to orders of temporary extensions of affiliation upto 30-6-2001 and intimated that the report of the Inspection panel, deputed by the University for this purpose was considered by the Executive Council of the University in its meeting held on 30-9-2000 and recommended for permanent affiliation. Copy of the said letter (containing recommendation of the Executive Council for permanent affiliation) was also sent to the Principal of the college and the Secretary, Higher Education, Government of U.P. Lucknow for perusal.
6. The said letter shows that the Executive Council of the University had satisfied itself that the petitioner satisfied all the requisite conditions which entitled it to receive 'permanent affiliation' for running post graduate classes in the concerned subjects and accordingly forwarded proposal to the Chancellor/Respondent No. 3 to grant permanent affiliation to the two subjects at Post Graduate level in the college.
7. From the above, it is clear that the University had no objection (as it found- that there was no ground or deficiency) on grant of permanent affiliation vide University's Executive Council Resolution dated 30-9-2000 (referred to in University letter dated 11-10-2000/Annexure-5 to the writ petition).
8. On the other hand, Deputy Secretary, Government of U.P. vide letter, dated 5-2-2001, addressed to the Registrar of the University, called for information regarding appointment of Staff for teaching post graduate classes in the two Subjects in respect of which permanent affiliation was sought (Annexure-6 to the writ petition). The Registrar of the University sent reply dated 12-2-2001 (Annexure-7 to the writ petition) enclosing information furnished by the college in this respect. The Chancellor of the University sent letter to the Registrar of the University dated 4-6-2001 (Annexure-8 to the writ petition) and intimated that 'temporary affiliation' in the subjects in question was extended from 1-7-2001 to 30-6-2002 with the condition that Society running the college shall get its registration renewed and appoint requisite qualified teaching-staff prescribed under law under intimation to the Government and the University. The Chancellor, however, makes no reference to the University letter dated 11-10-2000 (Annexure-5 to W.P.) which is material and relevant to the issue before him.
9. The then Manager of the college, vide letter dated 22-8-2001 addressed to the Secretary, Government of U.P. Lucknow (copy to the Director, Higher Education, U.P. Allahabad, Registrar of the University and others) informed that requisite teaching-staff was selected by a Selection Committee constituted as contemplated under law which held interview on 16-8-2002; certain papers (mentioned in the said letter) were also appended and further request was made to grant permanent affiliation for running post graduate classes in the subject concerned (Annexure-9 to the writ petition).
10. The dispute, however, arose when the Chancellor vide letter dated 20-7-2002, (while granted extension to temporary affiliation for the period 1-7-2002 to 30-6-2003 -Annexure-10 to the writ petition) for the first time, referred to Self Financing Scheme. Perusal of said letter dated 20-7-2002 shows that it refers to G.O. dated 11-11-1997 dealing with Self Financing Scheme which is not at all relevant for grant of permanent affiliation upto Post Graduate level in the subjects of Sociology and Economics in Art Faculty of the college which were opened before 1-7-1998 neither under AICTE or upto 'graduate level in the Subjects' mentioned in the said G.O. dated 11-11-1997.
11. Learned counsel for the Respondents virtually conceded and not able to dispute that G.O. dated 11-11-1997 is not at all relevant or applicable in any manner to the case of grant of affiliation contemplated under Section 37 of the Act. Respondents have miserably failed to demonstrate as to how the Chancellor could introduce 'Self Financing Scheme' in the case of the petitioner.
12. The Chancellor by means of the impugned order dated 29-9-2003/Annexure-14 to the writ petition, primarily relying upon G.O. dated 11-11-97/Annexure-12 to the writ petition, has however, rejected said representation.
13. In that view of the matter, we find that action of Chancellor requiring petitioner's Institution to comply with the said G.O. dated 11-11-1997 is not warranted and in fact uncalled for.
14. The petitioner submitted detailed objection in the shape of representation dated 3-8-2002/Annexure-11 to the petition before the Chancellor of the University. Petitioner categorically stated that G.O. dated 11-11-1997 was not applicable to their matter pertaining to grant of affiliation under Section 37 of the Act and the college having successfully conducted post graduate classes in the concerned subject for five years and University having recommended for permanent affiliation, no condition of running classes under Self Financing Scheme, could be imposed. It was prayed that order dated 20-7-2002 to the extent it imposed condition of Self Financing Scheme, be revoked and permanent affiliation be extended.
15. We have already dealt with aforesaid G.O. dated 11-11-97, perusal of which shows that it is not relevant to that extent or applicable to a case of grant of permanent affiliation under Section 37 of the Act. Order of Chancellor dated 20-7-2002, referring to said G.O. suffers from manifest error apparent on the face of record. The Chancellor has, however, further justified withholding of grant of permanent affiliation on the ground that qualified teaching staff was not engaged as per condition of grant of affiliation. The Chancellor, however, appears to ignore that Executive Council had continuously recommended the case for extension of affiliation and finally, as noted earlier, recommended for grant of permanent affiliation. The Executive Council of the University, after inspection, apparently raised no objection on grant of 'permanent affiliation' to the petitioner for running Post Graduate classes in the subjects of Sociology and Economics. The Chancellor has some how failed to notice University letter dated 11-10-2000 (Annexure-5 to W.P.)
16. The Chancellor in the impugned order refers to the letter dated 10-6-1993, purported to have been sent by the Registrar of the University.
17. We find that the issue raised by the Chancellor in his order dated 20-7-2002/Annexure-10 to the writ petition regarding appointment of teacher and reference to G.O. dated 11-11-1997 was beyond the issue raised in the representation/objection submitted by the petitioner against order dated 20-7-2002/Annexure-10 to the writ petition.
18. Apparently, petitioner had no notice or opportunity to meet aforesaid objection raised by the Chancellor for the first time in the impugned order. In case any material was collected by the Chancellor from the University with regard to the appointment of qualified teaching staff etc. or upon the University letter dated 10-6-2003, it was incumbent upon the Respondent Authority to have given notice as well as reasonable opportunity to the petitioner to defend himself against those objection also.
19. Supplementary affidavit filed by the petitioner shows that it has prima facie, an arguable and a tenable case and hence, it will not be a mere formality or exercise in futility to give opportunity to the petitioner to defend themselves on 'new objection' if any which find place for the first time in the impugned order.
20. We need not go into the details of the issue or adjudicate the same (i.e. regarding appointment of staff) in the present proceedings. The University has taken care of the same while they recommended for granting permanent affiliation to the petitioner college vide its letter dated 11-10-2000 (Annexure-5 to W.P. ) and, in case the Chancellor so desires on the basis of any valid/relevant material, to enquire/explanation on certain points , it can do so after holding enquiry (including opportunity of hearing to the petitioner) in accordance with law. This not being done, rejection of the representation on that basis is an error apparent on the face of record.
21. We may note that in spite of time being allowed, no counter affidavit is filed by any of the Respondents.
22. Learned counsel for the petitioner, however, placed reliance on Division Bench decision in Writ Petition No. 5881(MB) of 2002 -Committee of Management v. Chancellor and Ors., decided on 18-11-2002.
23. We find the observation-
'It may be mentioned that affiliation gives several privileges to the College, the main ones being grant of University degrees to its students, getting government grants, etc. Hence affiliation should not be lightly granted, but should be granted after detailed enquiries and investigation. This itself implies that affiliation means permanent affiliation, and not a temporary one. After all, the status of a College cannot be kept on a uncertain or precarious basis for otherwise neither the students nor the teachers and other employees will be sure about their future. Hence the 'authorities can make all the enquiries they wish before granting affiliation, but once they grant it, it must be permanent affiliation, though even this can be cancelled in accordance with clauses (2), (8) and (9) of Section 37 if the circumstances so warrant.
It is well known fact that this practice of granting temporary affiliation has become a major source of corruption. Where affiliation is granted for one year or two then it is a well known fact that often some extraneous consideration is demanded from the college management for extending the affiliation, and this practice must now be stopped. Hence we direct that in future if an application for affiliation is made by any college or institution then either permanent affiliation should be granted, or the application should be rejected but there should not be any temporary affiliation.'
by the Court are per incuriam and only to highlight the lacuna or cushion in mis-administration by requiring 'provisional affiliation' and its extension. The case does not show, it was an 'issue' between the parties or the counsels were required to submit their suggestions. Moreover, Court cannot, generally speaking, doubt wisdom of Legislature. Provisions of provisional affiliation are under the Act and the Statutes which have sought to take care that a college seeking affiliation should be under observation/probation and must prove its utility/good will by increase in students strength, better result, etc. Provision, therefore, cannot be said to be arbitrary. The above judgement, therefore, cannot be, on the issue/direction regarding temporary affiliation, treated as binding precedent in law.
24. In the result, we find that the impugned order dated 20-7-2002, (Annexure-10 to the W.P.) to the extent it imposed condition of Self Financing Scheme under G.O. dated 11-11-1997 is quashed and only to that extent the impugned order dated 29-9-2003 passed by Respondent No. 3/Annexure-14 to the writ petition is also set aside. The Chancellor of the University is requested to decide the matter afresh and pass appropriate orders in the matter of grant of permanent affiliation in accordance with law, keeping in mind the observations made above, within two months of receipt of certified copy of this judgement.
25. Petition stands allowed.
26. There shall be no order as to costs.