1.Rule. Rule is made returnable forthwith and heard finally with the consent of parties.
2. By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioner is challenging the order dated 30.04.2009 passed by the Hon'ble Chancellor and his Excellency The Governor of Maharashtra, Sant Gadge Baba Amravati University and a Notification dated 08.05.2009 issued by Respondent No. 3 in consequence thereof. The Hon'ble Chancellor is Respondent No. 2 in the present matter. Respondent No. 2 has by the impugned order declared nomination of the petitioner to Board of Examinations under Section 31(3)(f) of the Maharashtra Universities Act, 1994 (hereinafter referred to as the Act) by Respondent No. 4 Vice Chancellor, invalid. The nomination has been done by invoking powers under Section 14(7) of the above Act by Respondent No. 4 Vice Chancellor.
3. Respondent 6 Shri Santosh Madhavrao Thakre filed Writ Petition No. 4560 of 2005 before this Court challenging Notification dated 16.02.2005 issued by the Registrar, Amravati University, punishing him for indulging in unfair practice in the conduct of examination. The Division Bench of this Court on 03.10.2005 quashed and set aside that notification and remanded the matter to Board of Examinations (present Respondent No. 5) for fresh consideration within a period of four weeks from the date of receipt of that order. The order was communicated immediately and on 14.10.2005, the Registrar of University notified appointment of the petitioner under Section 14(7) of the Act. It appears that Civil Application No. 6981 of 2005 was moved in Writ Petition No. 4560 of 2005 seeking extension of time and on 28.10.2005 this Court granted time of six weeks to Respondent No. 3 University to comply with its orders.
4. In this background, I have heard Shri Khapre, learned counsel for the petitioner, Shri Sambre, learned Government Pleader for respondents No. 1 & 2, Shri Kilor, learned counsel for respondents No. 3 & 4 and Shri Kasat, learned counsel for respondent No. 5. Respondents No. 6 to 10 have chosen not to appear, though they are served.
5. Shri Khapre, learned counsel has after pointing out necessary facts stated that because of time bound direction issued on 03.10.2005 by this Court, the University has placed the matter before Respondent No. 4 Vice Chancellor and in exercise of powers under Section 14(7) of the Act, the nomination of the petitioner has been rightly made. He has invited attention to powers available to the Chancellor under Section 9(4) to urge that said powers are general in nature and do not cover exercise of powers by Vice Chancellor under Section 14(7) of the Act. In support of his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of U.P., reported at AIR 1961 SC 1170. To urge that powers exercised were due to emergency and hence Vice Chancellor is even otherwise competent to meet with such situation, he has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Sahiti & Ors. vs. Chancellor, Dr. N.T.R. University of Health Sciences & Ors., reported at AIR 2009 SC 879. He further states that the nomination of the petitioner was placed before the competent authority i.e. Management Council in its meeting dated 10.02.2006 and this action under section 14(7) was approved by the Management Council. He points out that the Management Council was constituted on 07.12.2005. After approval of Management Council in the matter, according to the learned counsel, the appointment of the petitioner was ratified and could not have been interfered with under Section 9(4) by the Hon'ble Chancellor. He is taking support from the judgment of the Hon'ble Apex Court in the case of Maharashtra State Mining Corporation vs. Sunil, reported at AIR 2006 SC 1923, in this respect. To point limited scope of power available in such matters to Respondent No. 2 or to even a Court of law, he is taking support from the judgment in the case of Rajendra Prasad Mathur vs. Karnataka University & Anr., reported at AIR 1986 SC 1448 (1). He, therefore, states that the approach of the office of Respondent No. 2 in the matter is contrary to settled law and unsustainable.
6. Shri Sambre, learned Government Pleader, on behalf of Respondents No. 1 & 2 has stated that direction by the Division Bench of this Court was to Board of Examinations i.e. Respondent No. 5 and he has invited attention to Section 31 for said purpose. He states that powers and duties of that Board are as prescribed in Section 32 and under subsection (4) thereof, if any emergency requiring immediate action arises, the Chairman of the Board or any other officer or person authorized by him is competent to take that action and report the same in next meeting of Board of Examinations. He contends that this provision was not pointed out by the office of Respondent No. 4 to Respondent No. 4 Vice Chancellor and a wrong impression that Board of Examination does not exist was given and hence the Vice Chancellor erroneously resorted to Section 14(7) of the Act. He has invited attention to note prepared by the office of University for said purpose. He further points out that Respondent No. 4 Vice Chancellor is in fact supporting the action of Chancellor before this Court. He has also relied upon proposal put up by the office of Vice Chancellor before the Management Council on 10.02.2006 to substantiate his contention.
7. Shri Kilor, learned counsel appearing for Respondent No. 4 Vice Chancellor has pointed out provisions of Section 42 to urge that term of office of Members of Board of Examinations is five years and the tenure of members nominated under Section 31(3) (d), (e) and (f) had expired. Under Section 32(4), the Chairman of Board of Examination was competent to take decision and there was no urgency warranting any nomination. It is pointed out that in the scheme of Section 31, nomination has to be done by Management Council and hence under Section 32(4), Vice Chancellor could not have nominated. That power could not have been reached via S.14(7) of the Act by Respondent 4. Attention is invited to reply filed by Respondent No.4 University before this Court accepting that Board of Examination was in existence.
8. Both Shri Sambre, learned GP and Shri Kilor, learned counsel stated that ratification by the Management council in such situation on 10.02.2006 has got no relevance because the basic exercise of power by Vice Chancellor, is itself vitiated. Attention is also invited to provisions of Section 9(3)(b) to urge that statute permits Respondent No. 3 to exercise power even suo motu. Section 108 thereof is also pressed into service to urge that in questions regarding interpretation of any provision or about due election or nomination of any person as member of any authority or body, the matter can be referred by any person or body directly affected or suo motu by the Vice Chancellor to the Chancellor and the decision of Chancellor on such question is final.
9. In reply, Shri Khapre, learned counsel states that the question whether emergency exists or not has been decided by Respondent No. 4 Vice Chancellor and the said aspect needs to be decided by Respondent No. 4 only. He further states that Respondent No. 2 Hon'ble Chancellor is not authorized by the statute to take action against the resolution of Management Council and the Management Council was not noticed and was not party to proceedings before the Hon'ble Chancellor.
10. The facts above show that on 03.10.2005, this Court required Respondent No. 5 Board of Examinations to take decision in the matter within a period of four weeks and later that time was extended further by six weeks from 28.10.2005. The nomination of the petitioner has been effected on 14.10.2005. The note produced before this Court by the University appears to be prepared by Controller of Examinations on 03.10.2005 and in that note, he has stated that then no Authority/ Board was functioning in University and it was necessary to place the matter before the Board of Examinations within four weeks, which was impossible. The Constitution of Board of Examinations was, therefore, urged to be essential and hence nomination of one Head of Department of Post Graduate Department under Section 31(3)(d) was advised to be effected by the Vice Chancellor. The provisions of Section 14(7) of the Act are then pointed out with remark that, if action as suggested was taken, Constitution of Board of Examinations and bringing it into existence was possible. The Registrar of University has thereafter accepted the note and placed it before the Vice Chancellor on 03.10.2005 which was approved by the Vice Chancellor. The draft of notification was then prepared on 14.10.2005 and it was also approved by the Vice Chancellor on 14.10.2005.
11. The provisions of Section 31 of the Act show that the Board of Examinations consists of Vice Chancellor as Chairman, Pro Vice Chancellor, Dean of Faculty concerned with Examination, Director of Higher Education, Evaluation expert, co opted by the Board and Controller of Examinations as Member Secretary. All these members were then functioning on Board of Examinations. Vacancy was under clause (d), (e) and (f) of subsection (3). Vacancy in clause (d) is of Head of University Department, clause (e) is one Principal other than Dean and clause (f) is one Teacher other than Head of University Department. Thus, out of total nine members, six members were functioning and three seats were vacant. The perusal of Section 32(4) reveals that when emergency requiring immediate action arises, the Chairman of the Board or then any other officer authorized by the Chairman in that behalf can take such action as he thinks fit and necessary. The only obligation cast upon such authorized person/ Chairman is to report the same at the next meeting of the Board. The petitioner has not pointed out why time bound direction of this court could not have been considered by the Board of Examinations consisting of six members or then by its Chairman under Section 32(4) of the Act.
12. The perusal of provisions of Section 14(7) of the Act show that when Vice Chancellor has reasonable ground to believe that there is an emergency warranting immediate action, he could take that action. Section 14 deals with powers and duties of Vice Chancellor. Under subsection (7) after action is taken, he has to report in writing the same to such authority or body as would have in ordinary course dealt with the matter. Here, the matter was to be dealt with by Board of Examinations and nomination of the petitioner on Board of Examination could have been done by the Management Council. The note prepared by Controller of Examinations on 03.10.2005 is already commented by me above and it does not point out provisions of Section 32(4) of the Act to Vice Chancellor. It also does not state that the Board of Examinations with six members is available. Thus grounds relevant to enable Vice Chancellor to form a particular belief were not placed before Vice Chancellor at all. The option available to him as Chairman of Board of Examinations to take decision under Section 32(4) of the Act in the case of emergency is also not pointed out.
13. Section 9 in the Act is the provision which deals with Vice Chancellor and his powers. Subsection (3) enables Chancellor to call for a report or an explanation or such information or record of any matter or affairs of University and to issue directions thereupon as may be deemed fit in the interest of University or students or larger interest of public. This power can be exercised on receiving a reference from State Government or even suo motu or otherwise. Under subsection (4) after taking report in writing from the Vice Chancellor, the Chancellor is authorized to suspend or modify any resolution, order or proceeding of any authority, body, committee or office or officer, which in the opinion of the Chancellor is not in conformity with the Act, Statutes, Ordinances and Regulations made there under or then is not in the interest of University and the University authority, body, committee, etc. has to comply with the same. Under proviso thereto, the Chancellor has to issue show cause notice and his decision thereafter is final. The perusal of Section 108 to which the respondents have invited attention to show that when a question regarding due election, appointment or nomination or cooption of a person as Member of any authority or body of University arises, the same can be referred on petition by any person or body directly affected or suo motu by Vice Chancellor to Chancellor. Section permits Chancellor to decide the question after taking such advise as he thinks necessary and his decision is made final. Both these provisions therefore indicate the important position assigned to the Hon. Chancellor by the legislature in the working of the Universities under the Act.
14. The perusal of impugned order dated 30.04.2009 shows that it makes reference to two petitions dated 20th and 21st November 2006 questioning purported emergency regarding appointment of the petitioner and then calling of report from Vice Chancellor. The report was submitted by the Vice Chancellor on 23.02.2006. Then various provisions including provision of Section 14(7) are looked into and as noted that it was felt that Section 14(7) cannot include power to nominate a member on Board of Examinations as in case at hand power to nominate could not be construed as an emergency power. The impugned order mentions that, therefore, a showcause notice under Section 9(4) was issued to all concerned and the Hon'ble Chancellor then finds from the reply of Vice Chancellor that motive behind nomination was not a emergency. The contents of reply submitted by the petitioner is mentioned in para 12. The oral submissions of the petitioner find place in para 17 and the consideration and findings appear in para 20. It has been concluded that emergency power of Vice Chancellor under Section 14(7) of the Act cannot be said to include a power to nominate or coopt a member on Board of Examinations. The nomination of the petitioner was, therefore, found not legal and hence it was declared invalid. Obviously, the finding is, after considering the facts of the matter. The relevant dates are noticed by Respondent No. 2 and delay in taking steps itself has been found to be inconsistent with the argument of the emergency. The application of mind, therefore, cannot be said to be either erroneous or perverse. The provisions of Section 32(4) of the Maharashtra Universities Act, 1994, were also pointed out to the Hon'ble Chancellor. Petitioner before this Court is not complaining of any procedural violations.
15. Looking to the finality given to his orders under Section 9(4) read with Section 108 of the Act, it is clear that in limited scope of judicial review available to this Court, no interference is warranted in the matter. Even otherwise, it has been found by this Court that material relevant for reaching a conclusion as to existence of reasonable ground under Section 14(7) warranting an emergent action was not pointed out to the Vice Chancellor.
16. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of U.P., (supra), the Hon'ble Apex Court noticed that under U.P Government Orders issued under U.P Industrial Disputes . . Act, two modes were provided for commencement of proceedings for settlement of an industrial dispute generally and a special provision was made in clause 23. Clause 23 provides that if any enquiry is going on before conciliation machinery or an appeal was pending before the Industrial Court, workman would not be discharged without a written permission of Conciliation Officer. Clause 26 required an employer to pay fine or to undergo imprisonment for violation in this respect. The Hon'ble Apex Court has noted that clause 5(a) had no application where special provision of clause 23 was attracted. It is apparent that thus, there were two modes provided for same purpose. Here, the powers of Vice Chancellor under Section 14(7) though unique in nature cannot be compared with provisions of Section 9 in any way and the same are subject to provisions of Section 9(4). The analogy of a general provision yielding to special one is misconceived here. This judgment, therefore, has no application.
17. Sahiti & Ors. vs. Chancellor, Dr. N.T.R. University of Health Sciences & Ors. (supra), the Hon'ble Apex Court has found that Section 12(2) and (3) of N.T.R. University of Health Sciences permit Vice Chancellor to take appropriate action relating to affairs of the University and it included conduct of examination also. He was found to possess emergency power to deal with any untoward situation and after taking such action, he has to report to concerned authority or body competent in normal course to take it. The Hon'ble Apex Court has stated that his pivotal position as the principal executive officer also carried with him certain implied powers and it is magisterial power, essential to maintain domestic discipline in academic and non academic affairs. There can be no dispute with this proposition & here only issue is whether such an emergent situation prevailed and whether opinion in this regard was reached upon evaluation of relevant factors.
18. In Maharashtra State Mining Corporation vs. Sunil, (supra) the Hon'ble Apex Court has found that when order of dismissal passed by Managing Director, not competent to do so was subsequently ratified by competent authority having power to pass it, that ratification relates back to the date of original order and validates it. Here, the facts clearly show that Vice Chancellor was not even remotely expected to fill in lacunae in the Board of Examinations and it was the duty of Management Council. The question before Respondent No. 2 was only whether recourse to Section 14(7) of the Act in such circumstances was proper or not. It has been found that such recourse was unwarranted. Respondent No. 2 has exercised jurisdiction within the framework of Section 9(4) and hence present ruling cannot save the situation for the petitioner. Subsequent ratification by Management Council does not usher an element of emergency in initial exercise of power under S.14(7) by Respondent 4. All arguments based upon concept of ratification or its impact are therefore really not relevant in this case.
19. In Rajendra Prasad Mathur vs. Karnataka University and Anr., (supra), the question of grant of equivalence to various examinations has been considered. The only contention urged on behalf of the appellants there was that the Higher Secondary Examination of the Board of Secondary Education, Rajasthan or in any event first year B.Sc. examination of a University of Rajasthan or Udaipur be regarded as equivalent to the Pre University Examination of the Pre University Education Board, Bangalore and the appellants who had passed the Higher Secondary Examination of the Secondary Education Board, Rajasthan and in any event such of the appellants who had passed the first year B.Sc. examination of the Universities of Rajasthan and Udaipur satisfied the condition of eligibility prescribed by the Karnataka University, and were therefore, eligible for admission to the Engineering Degree Course of the Karnataka University. The Hon'ble Apex Court has found that determination of equivalence of examination of either Universities, Board with its examination by University is within the province of each University and it would not be right for it to sit in judgment over such decision of University as Court does not possess any expertise in the matter. The present judgment again is of no help in this controversy.
20. Section14(7) of the Act enables the Vice Chancellor to act if there are reasonable grounds for him to believe that an emergency which requires an immediate action to be taken exists. The power is of exceptional nature and hence, needs to be resorted to with due care and caution. Grounds for belief, both relevant and reasonable, essential to reach/sustain it, therefore, must be clearly spelt out and any factor sufficient to deny exercise of that power must be addressed to. Power is bestowed on a very high officer and it carries with it equally heavy burden to show that any relevant circumstance warranting no recourse to it has not been overlooked. Application of mind by Respondent No. 4 has to show that reasonably there was no other way out within framework of law and step taken under Section14(7) was the only plausible solution. Evaluation of situation at hand by Respondent No. 4 has to be like a prudent man weighing all pros and cons in such contingencies. The office of Respondent No. 4 has to demonstrate that exercise was because of peculiar facts, in the light of legal provisions and statutory obligations as also with knowledge that powers not otherwise available to him are being exercised. Failure to ascertain and reckon any material factor betrays the faith reposed by the legislature in high office of Respondent No. 4 and may vitiate the entire exercise as it then derogates from reasonable nature of grounds looked into.
21. Thus, having found that Respondent No. 4 Vice Chancellor could not have resorted to Section 14(7) of the Act in the matter as there was no emergency and in any case recourse thereto is vitiated because of wrong information & non consideration of relevant factors having vital bearing on it, it is apparent that the petitioner cannot take any exception to the order dated 30.04.2009 passed by Respondent No. 2 in the matter. Writ Petition is, therefore, dismissed. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.