Allahabad High Court
Yashraj College Of Professional ... vs State Of U.P. And 2 Others on 12 February, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - C No. - 29169 of 2019 Petitioner :- Yashraj College Of Professional Studies Tatiyaganj Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajan Upadhyay,Ramesh Upadhyaya(Senior Adv.) Counsel for Respondent :- C.S.C.,Rohit Pandey Connected with Case :- WRIT - C No. - 31170 of 2019 Petitioner :- Yashraj College Of Professional Studies Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rajan Upadhyay,Ramesh Upadhyaya(Senior Adv.) Counsel for Respondent :- C.S.C.,Dhananjay Awasthi,Rohit Pandey And Case :- WRIT - C No. - 25319 of 2019 Petitioner :- Kamlesh Kumari Lakshmikant Mahavidhyalaya Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajan Upadhyay,Sri Ramesh Upadhyaya (Senior Advocate) Counsel for Respondent :- C.S.C.,Rohit Pandey And Case :- WRIT - C No. - 26335 of 2019 Petitioner :- Suryapal Singh Anusuiya Mahavidyalaya, Kanpur Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajan Upadhyay,Sri Ramesh Upadhyaya (Senior Advocate) Counsel for Respondent :- C.S.C.,Rohit Pandey Hon'ble Ashwani Kumar Mishra,J.
1. Heard Sri Ramesh Upadhyay, learned Senior Counsel assisted by Sri Rajan Upadhyay for the petitioners, Sri Rohit Pandey for the University and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Sudhakar Upadhyay for the State Authorities.
2. These four writ petitions have been filed by the colleges, which have been admitted to privileges of affiliation by Chhatrapati Sahu Ji Maharaj University, Kanpur, questioning the temporary grant of affiliation to them. In the leading Writ Petition No.29169 of 2019 the petitioner has challenged the conditions incorporated in the affiliation order passed by the respondent University, dated 30.5.2018, in that regard. In connected cases the petitioners have challenged denial of privileges on account of grant of temporary affiliation. It is sought to be urged that in the existing statutory scheme the grant of affiliation ought to be permanent but the authorities are illegally granting temporary affiliation, notwithstanding the fact that the colleges fulfill all conditions of affiliation specified in law/statutes of the University. The petitioners have also questioned the enforcement of Government Order dated 27.9.2002 insofar as it mandates that 60% students enrolled in the affiliated college must pass before temporary affiliation is extended to the college concerned. It is contended that the Government Order, to that extent, is beyond jurisdiction and is otherwise inconsistent with the statutory scheme.
3. In order to appreciate the controversy raised in this bunch of petitions, it would be necessary to refer to the relevant Legislation operating in the field and also notice successive amendments made, from time to time, regarding grant of privileges of affiliation to a college by the University concerned.
4. The State Legislature enacted the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as ''Act of 1973') after obtaining presidential assent on 2.9.1973 (vide President's Act No.10 of 1973). Its object was to amend and consolidate the laws relating to certain Universities. The Act of 1973 has been amended and re-enacted by U.P. Act No.29 of 1974. It (Act of 1973) authorizes the University to admit a degree college, which fulfills the prescribed conditions, to the privileges of its affiliation. Affiliated college is defined in Section 2(2) to mean an institution affiliated to the University in accordance with the provisions of the Act of 1973 and Statutes of that University. Chapter VII of Act of 1973 regulates grant of such affiliation. Section 37 of the Act of 1973, falling in Chapter VII at the time of its inception, read as under:-
"37. Affiliated Colleges. - (1) This section shall apply to the Universities of Agra, Gorakhpur, Kanpur, and Meerut and such other Universities (not being the Universities of Lucknow and Allahabad) as the State Government may, by notification in the Gazette, specify.
(2) The Executive Council may, with the previous sanction of the Chancellor, admit any college which fulfils such conditions of affiliation, as may be prescribed, to the privileges of affiliation or enlarge the privileges of any college already affiliated or subject to the provisions of sub-section (8), withdraw or curtail any such privilege:
Provided that previous sanction of the Chancellor shall not be required for the grant of an application of an affiliated college for permission to start instruction in a subject, being a subject in which instruction is not already given in that college, for a bachelor's degree in respect of which the college is already affiliated.
(3) It shall be lawful for an affiliated college to make arrangement with any other affiliated college situated in the same local area, or with the University, for co-operation in the work of teaching or research.
(4) Except as provided by this Act, the management of an affiliated college shall be free to manage and control the affairs of the college and be responsible for its maintenance and upkeep, and its Principal shall be responsible for the discipline of its students and for the superintendence and control over its staff.
(5) Every affiliated college shall furnish such reports, returns and other particulars as the Executive Council or the Vice-Chancellor may call for.
(6) The Executive Council shall cause every affiliated college to be inspected from time to time at intervals not exceeding five years by one or more persons authorised by it in that behalf, and a report of the inspection shall be made to the Executive Council.
(7) The Executive Council may direct an affiliated college so inspected to take such action as may appear to it to be necessary within such period as may be specified.
(8) The privileges of affiliation of a college which fails to comply with any direction of the Executive Council under sub-section (7) or to fulfil the conditions of affiliation may, after obtaining a report from the Management of the college and with the previous sanction of the Chancellor, be withdrawn or curtailed by the Executive Council in accordance with the provisions of the Statutes."
5. Proviso to sub-section (2) of Section 37, quoted above, was omitted by U.P. Act No.21 of 1975, and a sub-section (9) was inserted by U.P. Act No.5 of 1977, after sub-section (8) in Section 37, which read as under:-
"(9) Notwithstanding anything contained in sub-sections (2) and (8), if the Management of an affiliated college has failed to fulfil the conditions of affiliation, the Chancellor may, after obtaining a report from the Management and the Vice-Chancellor, withdraw or curtail the privileges of affiliation."
6. As per the scheme initially envisaged in the Act of 1973 the power to grant affiliation vested in the Executive Council of the University concerned with the previous sanction of the Chancellor. The degree colleges were, however, being admitted to the privileges of affiliation largely on temporary basis and only in some cases the affiliation was allowed on permanent basis. An issue was raised before this Court questioning grant of privileges of affiliation to a college by the University established under the Act of 1973, on temporary basis. This Court in Writ Petition No.5881 (MB)/2002, Committee of Management, Paramhans Degree College, Baharaich Vs. Chancellor and others, examined the relevant provisions and held that the term ''affiliation' used in Section 37 means permanent affiliation and not temporary affiliation. It was held that the concern authority may, before granting affiliation to a degree college enquire into such matters, as they deem fit, but the affiliation should be permanent. It was also observed that the authority, at the time of inspection of degree college, by virtue of affiliation, may withdraw the privileges of affiliation on account of non-fulfillment of conditions of affiliation by virtue of Sub-sections (2), (8) and (9) of Section 37 of the Act of 1973 but the affiliation itself had to be nevertheless permanent and not temporary.
7. The State Legislature, in view of the judgment delivered by this Court in Committee of Management, Paramhans Degree College, Baharaich (supra) found it appropriate to amend the Act of 1973 vide The Uttar Pradesh State Universities (Amendment) Act, 2003 (U.P. Act No.1 of 2004). Section 37 was amended vide Section 5 of the U.P. Act No.1 of 2004, which is reproduced hereinafter:-
"5. Amendment of Section 37.- In Section 37 of the principal Act,-
(a) In sub-section (2) the following provisos shall be inserted at the end, namely:-
"Provided that if in the opinion of the Chancellor, a college substantially fulfils the conditions of affiliation, the Chancellor may sanction grant of affiliation to that college or enlarge the privileges thereof in specific subjects for one term of a course of study on such terms and conditions as he may deem fit:
Provided further that unless all the prescribed conditions of affiliation are fulfilled by a college, it shall not admit any student in the first year of the course of study for which affiliation is granted under the foregoing proviso after one year from the date of commencement of such affiliation."
(b) after sub-section (9) the following sub-section shall be inserted, namely:-
"(10) Notwithstanding anything to the contrary contained in any other provisions of this Act, a college, which has already been given affiliation to a University before the commencement of the Uttar Pradesh State Universities (Amendment) Act, 2003 in specific subjects for a specified period, shall be entitled to continue the course of study for which admissions have already taken place but it shall not admit any student in the first year of such course of study without obtaining affiliation under sub-section (2)."
8. The proviso added vide U.P. Act No.1 of 2004 permitted grant of affiliation for one term of a course of study to a college (temporary affiliation) if in the opinion of the Chancellor a college substantially fulfills the conditions of affiliation. The proviso also clarified that unless all the prescribed conditions of affiliation are fulfilled by a college it shall not admit any student in the first year of the course of study after one year from the date of commencement of such affiliation. The Legislative intent in introducing the amendment is explicit i.e. it permitted grant of temporary recognition even before all conditions of affiliation were fulfilled with the rider that conditions of affiliation are substantially fulfilled and the remaining conditions are fulfilled within a period of one year or else the college was precluded from admitting any students in the first year of the course of study after expiry of one year.
9. Act of 1973 was again amended in the year 2007 vide U.P. Act No.12 of 2007. Section 2 of the amending Act is relevant for our purposes and is reproduced hereinafter:-
"Amendment of Section 37 and 38 of President's Act No.10 of 1973 as amended and re-enacted by the U.P. Act No.29 of 1974.- In the Uttar Pradesh State Universities Act, 1973 in Section 37 and 38, for the word "Chancellor" wherever occurring, the words "State Government" shall be substituted."
10. The scheme for admitting a college to the privileges of affiliation vide U.P. Act No.1 of 2004 continued even after introduction of U.P. Act No.12 of 2007, with the only change that power of ''Chancellor' stood assigned to the ''State Government'. The position in law was therefore clear that privileges of affiliation could be extended to a college, by the Executive Council of the University, with the previous approval of the Chancellor/State Government, if the college fulfilled conditions of affiliation, as may be prescribed. Conditions of affiliation was therefore required to be specified in the Statutes of the University. The only exigency in which affiliation could be granted for one term of course (temporary affiliation) was when the college did not fulfill conditions of affiliation in its entirety yet fulfilled it substantially. The considerations for grant of permanent affiliation vis-a-vis temporary affiliation, therefore, stood clearly outlined in the Act of 1973. This position in law prevailed after introduction of amending Act No.1 of 2004 and continued after U.P. Act No.12 of 2007 with the modification that previous approval of Chancellor stood substituted by previous approval of the State Government.
11. Section 37 of Act of 1973 came to be amended yet again by State Legislature in the year 2014 vide U.P. Act No.14 of 2014. The statement of object and reasons contained in U.P. Act No.14 of 2014 clearly indicates legislative intent to omit the requirement of previous sanction by the State Government for grant of affiliation. Section 3 of the Amending Act, 2014 whereby Section 37 came to be amended is reproduced hereinafter:-
"3. Amendment of Section 37.- In Section 37 of the principal Act,-
(a) for sub-section (2) the following sub-section shall be substituted, namely-
"(2) The Executive Council may, admit any college which fulfils such conditions of affiliation as may be prescribed, to the privileges of affiliation or enlarge the privileges of any college already affiliated or subject to the provisions of sub-section (8), withdraw or curtail any such privilege."
(b) for sub-section (8) the following sub-section shall be substituted, namely-
"(8) The privileges of affiliation of a college which fails to comply with any direction of the Executive Council under sub-section (7) or to fulfil the conditions of affiliation may, after obtaining a report from the management of the college be withdrawn or curtailed by the Executive Council in accordance with the provisions of the Statutes."
(c) after sub-section (10) the following sub-section shall be inserted, namely-
"(11) Any institution whose application is rejected by the University may prefer an appeal to the State Government within 30 days from the receipt of the order of rejection, which may either allow the appeal or reject it. The State Government shall also have power to review the matter of application of a college in cases where the complaints received by it with respect to the irregularities committed by the college.""
12. The consequence of amendment made in Section 37 of the Act of 1973 is essentially three fold. Firstly, the power to grant affiliation now stands vested in the Executive Council of the University concerned and the requirement of prior approval of Chancellor/State Government stood dispensed with. Secondly, the privilege of affiliation can now be extended to a college only when it fulfills conditions of affiliation, as may be prescribed. Thirdly, the proviso which permitted grant of temporary affiliation even if conditions of affiliation were not fulfilled entirely but only substantially stood deleted. No further amendment is made in the Act after the year 2014. The Executive Council is thus empowered in the Act now to grant privileges of affiliation only if the college fulfills all conditions of affiliation as are specified in the Statutes of the University. The object for which temporary affiliation was made permissible i.e. to secure fulfillment of all conditions of affiliation while granting affiliation even if conditions of affiliation are only substantially fulfilled and not in its entirety ceased to exist.
13. The exercise of power by the Executive Council of University in the matter relating to grant of affiliation or its withdrawal remains subject to the appellate jurisdiction of the State Government. The Executive Council could, thus, no longer grant privilege of affiliation temporarily.
14. Admission of college to the privileges of University, consequent upon its affiliation, however, continues to remain subject to the college fulfilling such conditions as are prescribed by the statutes and is otherwise subject to the directions which may be issued by Executive Council under sub-section (7) of Section 37. The continuance of privilege of affiliation are also subject to the exercise of power under sub-section (8) and (9) of Section 37, and the decision in that regard remains subject to the appellate power of the State under sub-section (11).
15. Before proceeding further it would be worth noticing that the conditions of affiliation as per Section 37 of the Act of 1973 is required to be prescribed. Term ''prescribed' is defined in the Act of 1973 to mean as is prescribed by the Statute. The First Statutes of the Universities established under the Act of 1973 were framed on similar lines and contained Chapter XIII regulating grant of privileges of affiliation to a college and also provided the conditions to be fulfilled by a college for the grant of affiliation. Clause 13.01 to 13.04 of the Statutes is reproduced hereinafter:-
"13.01. The list of college affiliated to the University as on the date of the publication of these Statutes is given in Appendix ''E'. [Section 37].
13.01-A. The provisions of the Statutes relating to the affiliated College shall not apply to the Har Court Butler Technological Institutes, Kanpur in so far as they are inconsistent with its Memorandum of Association Rules, Regulation and bye-laws.
13.02. Every application for affiliation of a College shall be made so as to reach the Registrar not less than 12 months before the commencement of the session in respect of which the affiliation is sought. [Sections 37 and 49 (m)].
Provided that the Chancellor may, in special circumstances reduce the said period in the interest of higher education to such extent as he may deem necessary.
13.03. Every application for affiliation of a college shall be accompanied by a Bank Draft payable to the University, for a sum of Rs.2,000 which will be non-refundable. [Sections 37 and 49 (m)].
13.04. Before an application for affiliation is placed before the Executive Council, the Vice-Chancellor must be satisfied with regard to the following particulars, namely-[Section 37 and 49 (m)]-
(a) that the provisions of Statutes 13.05, 13.06 and 13.07 have been complied with;
(b) that the institution satisfies the demand for higher education in the locality;
(c) that the Management concerned has provided or has adequate financial resources to provide for-
(i) suitable and sufficient building;
(ii) adequate library, furniture, stationery, equipment and laboratory facilities;
(iii) two hectares of land (excluding covered area);
(iv) facilities for health and recreation of the students;
(v) payment of salary and other allowances to the employees of the college for at least three years."
16. The statutes of the University, insofar as it relates to grant of privileges of affiliation is concerned, appears to have been framed with reference to the provisions of the Act of 1973, as it was originally enacted. The Court has not been apprised of any amendment in the Statutes of the University, insofar as it provides the conditions for grant of affiliation to a new college.
17. The above noted provisions in the Statutes of the University are specific, inasmuch as relevant factors for establishment and efficient running of college have been incorporated therein. The conditions includes availability of (i) suitable and sufficient building; (ii) adequate library, furniture, stationery, equipment and laboratory facilities; (iii) two hectares of land (excluding covered area); (iv) facilities for health and recreation of the students; and (v) payment of salary and other allowances to the employees of the college for at least three years. In case the college can demonstrate that it fulfills the aforesaid conditions its application for grant of affiliation is required to be considered by the Executive Council. In case the Executive Council denies the privileges of affiliation to the college concerned its decision would be subject to exercise of appellate power by State Government. Once the State Government is vested with the appellate authority in the matter relating to grant of affiliation to the college concerned, the question of grant of temporary affiliation with the permission of State Government or the extension of its term, as was contained in Section 37 prior to introduction of U.P. Act No.14 of 2014 had to be necessarily omitted and has rightly been done so by the State Government while introducing U.P. Act No.14 of 2014. The involvement or association of State Government, at the first instance, regarding grant of affiliation or the question of enlarging the privileges of affiliation for one term of a course of study now ceases to exist. The University nevertheless would have jurisdiction to ensure that affiliated college function under its supervision and control in the manner provided for in Section 37 of the Act of 1973. Every affiliated college shall have to furnish such reports, returns and other particulars as the Executive Council or the Vice-Chancellor may call for. The Executive Council will also have jurisdiction to cause every affiliated college to be inspected, from time to time, at intervals not exceeding five years by one or more persons authorised by it in that behalf and the report of inspection shall be made to Executive Council. Executive Council is empowered by the Act of 1973 to direct an affiliated college so inspected to take such action as may appear to it to be necessary within such period as may be specified. Sub-section 8 thereof contemplates that where an affiliated college fails to comply with any direction of the Executive Council issued under sub-section (7) or fails to fulfill the conditions of affiliation then after obtaining a report from Management of the college the affiliation granted can be withdrawn or curtailed by Executive Council in accordance with the provisions of Statutes.
18. It is in the above context that the grievance raised by the petitioners require consideration. Learned counsel for the petitioner states that the University has not been able to comprehend the true purpose specified by the legislature for grant of temporary recognition i.e. fulfillment of conditions of affiliation. Submission is that even after the amendment incorporated vide U.P. Act No.14 of 2014 in section 37 of the Act of 1973 the University continues to grant temporary recognition even though all conditions for affiliation specified in the Statutes of the University are fulfilled and no justification exists to deny grant of permanent affiliation. It is further urged that new colleges are compelled to run after the University and its authorities for extension of term of affiliation for no obvious reason. According to petitioners this practice results in limited resources of new colleges being diverted to unproductive activities and impedes quality of education.
19. Per contra, on behalf of the respondents it is urged that the power to grant permanent affiliation includes the power to grant temporary affiliation also. Contention is that the University is in a better position to regularly monitor the affairs of the college, and therefore, the petitioners are not entitled to any relief.
20. It has already been noticed that this Court in Committee of Management Paramhans Degree College, Bahraich (supra) has held that affiliation contemplated in section 37, per se, denotes permanent affiliation. It was for such reasons that the Act was amended vide U.P. Act No.1 of 2004 and a proviso was added to sub-section (2) of section 37 permitting grant of temporary affiliation even before all conditions of affiliation are met by the college. However, after the proviso to sub-section (2) of section 37 came to be deleted vide U.P. Act No.14 of 2014 the enabling provision for issuing temporary affiliation ceases to exist. Moreover, the Act now requires all conditions of affiliation to be met before the Executive Council could admit college to the privilege of affiliation, and therefore, no justification otherwise exists for grant of temporary affiliation to a college seeking affiliation.
21. It appears that on account of amendments introduced in Section 37, from time to time, a state of uncertainty/confusion has prevailed regarding grant of privileges of affiliation by the University. The import of amending Act No.14 of 2014 has not been correctly understood. The University appears to be continuing under the statutory scheme which existed prior to introduction of amendming Act No.14 of 2014.
22. Additional conditions regarding grant of affiliation are being introduced from time to time, vide different Government Orders, on account of which a state of uncertainty has been created in the affiliated colleges and they are forced to run after the authorities of the Universities upon expiry of each term. The grant of affiliation temporarily or for a limited term, therefore, is not found to be in consonance with the legislative mandate and is otherwise opposed to the cause of education, inasmuch as the institutions are all the time concerned about grant of extension of term of affiliation, which is often resulting in uncalled for litigation also before this Court. Such unwarranted stage of uncertainty has already been remedied by the legislature vide amending Act No.14 of 2014 and it is high time that the universities established under the Act of 1973 take note of it and obviate the menace.
23. It is at this juncture that the Court would like to refer to the Government Order issued by the State Government on 27th September, 2002. This Government Order lays down the norms to be made applicable for opening of new colleges for graduate/postgraduate level or for introducing new subject in the college concerned. Clause 1 of the Government Order lays down general procedure to be adopted for opening of colleges by getting the society registered under the provisions of the Societies Registration Act, 1860. Various conditions with regard to existence of land and other teaching facilities etc. have also been specified. Clause 2 deals with justification for opening of a new college, inasmuch as it would have to be ascertained as to how many colleges are already in existence within a radius of 15 Kms. from such college. Clause 3 lays down the amount of security to be deposited by the college concerned. The existence of library and requisite furniture have also been specified. Both in respect of colleges upto graduate and postgraduate levels, Clause 9 lays down the criteria for sanctioning additional seats in the college concerned. Clause 10 lays down the norms for extension of affiliation to a college concerned. Clause 10 and 11 of this Government Order separately deals with norms for grant of temporary affiliation and also in respect of permanent affiliation. Clause 10 and 11 of the Government Order dated 27.9.2002, which are relevant for the controversy at hand are reproduced herein under:-
"¼10½ lEc)rk foLrkj.k gsrq ekud ¼1½ egkfo|ky; dh LFkkiuk ls lEcfU/kr voLFkkiuk lEcU/kh ekud rFkk iwoZ esa fuxZr lEc)rk iznku djus lEcU/kh vkns'k esa mfYyf[kr ckrsa iw.kZ dj yh x;h gSA ¼2½ f'k{kdksa dh fu;qfDr ;w0th0lh0@'kklu }kjk fu/kkZfjr vgZrkvksa ds vuq:i dh xbZ gksA ¼3½ foxr o"kksZ ¼vf/kdre rhu o"kZ½ dk ijh{kkQy 60 izfr'kr ls de u jgk gksA ¼4½ laLFkk dk iathdj.k v|kof/kd fof/k ekU; gksA ¼5½ egkfo|ky; }kjk 'kklu ,oa fo'ofo|ky; ds funsZ'kksa dk ikyu fd;k tk jgk gksA ¼6½ fo'ofo|ky; dh ijh{kkvksa dh vof/k esa lkewfgd udy dk vkjksi u gksA ¼7½ lEc)rk foLrkj.k dk izLrko fo'ofo|ky; dh laLrqfr lfgr lEc)rk lekIr gksus dh vof/k ls rhu ekg iwoZ 'kklu rFkk egkefge dqyf/kifr dk;kZy; dks izkIr gksuk pkfg,A ¼11½ LFkk;h lEc)rk gsrq ekud ¼1½ egkfo|ky; dh LFkkiuk ls lEcfU/kr leLr voLFkkiuk ,oa 'kSf{kd ekudksa dh iwfrZ dj ysus dk leqfpr izek.k gksA ¼2½ foxr rhu o"kksZ dk ijh{kkQy 60 izfr'kr ls U;wu u jgk gksA ¼3½ fu/kkZfjr ;ksX;rk /kkjd izkpk;Z rFkk leLr f'k{kdksa dh fu;qfDr fu/kkZfjr izfdz;k ds vuqlkj dj nh xbZ gks rFkk ;Fkk vko';d fu;qfDr ij dqyifr dk vuqeksnu izkIr dj fy;k x;k gksA ¼4½ v/;kidksa dks fu;fer :i ls osru Hkqxrku fd;k tk jgk gksA ¼5½ LFkk;h lEc)rk dk izLrko fo'ofo|ky; ds ek/;e ls fujh{k.k e.My dh vk[;k ,oa laLrqfr lfgr vLFkk;h lEc)rk lekIr gksus dh vof/k ds rhu ekg iwoZ 'kklu@dqykf/kifr dks izkIr gks tk;sA ¼6½ laLFkk dk iathdj.k v|kof/kd fof/k ekU; gksA ¼7½ izcU/k ra= esa fdlh izdkj dk fookn u gks rFkk izca/kra= ds fo'ofo|ky; ls vuqeksfnr gksus dk izek.k gksA ¼8½ lkewfgd udy dk dksbZ vkjksi u gksA"
24. Clause 10(3) contains a specific requirement that the result of the affiliated college has to be above 60% during the last three years for extending the term of affiliation. Similarly, clause 11(2) of the Govt. Order contemplates that the result for the last three years has to be above 60% for the grant of permanent affiliation.
25. The aforesaid Government Order appears to have been issued when the power to grant affiliation was to be exercised with the approval of the State Government and included the power to grant affiliation for a limited term. It was in that context that conditions were imposed for grant of temporary recognition or for grant of permanent recognition to a college already admitted to the privileges of affiliation on temporary basis. This Government Order has completely lost its relevance in the existing statutory scheme where temporary recognition itself is not envisaged. Prior approval of the State Government for grant of affiliation is also dispensed with. In the Act of 1973 or the Statutes of the University concerned there exists no condition of the like nature as are contained in clause 10(2) and 11(3) of the Government Order dated 27.9.2002, for grant of affiliation. This Government Order, therefore, has lost its efficacy and cannot be relied upon for denying grant of affiliation.
26. At this juncture it would be worth referring to Section 2(14) of Act of 1973, which defines ''prescribe' to mean as prescribe by the Statutes. The conditions as are required to be possessed by colleges for grant of affiliation has to be such as is prescribed in the Statutes. Law is otherwise settled that when a Statute requires an act to be done in a particular manner, it has to be done in that manner alone and all other modes are prohibited (see:- Taylor vs. Taylor: (1875) LR (1) CH-D-426, and Nazir Ahmad vs. King Emperor: AIR 1936 PC 253).
27. The exercise of power by the Executive Council for grant of recognition by virtue of Section 37(2) and the conditions to be imposed in that regard has therefore to be with reference to the Statutes alone and a condition, which has not been specified in the Statutes, ordinarily cannot be introduced by the Executive Council. This Court finds support in its view from the observation of the Apex Court in Bal Krishna Agarwal Vs. State of U.P. and others, (1995) 1 SCC 614. The Supreme Court while examining a claim of personal promotion interpreted the term ''prescribed' in para 13 of the aforesaid judgment, which is reproduced hereinafter:-
"13. Shri Sanyal, the learned Senior Counsel appearing for Respondent 5, has, however, urged that since the validity of appointment of Respondents 4 and 5 with effect from 9-11- 1984 has not been assailed by the appellant, he should not be permitted to raise this question at this stage. It is no doubt true that the validity of promotion of Respondents 4 and 5 has not been assailed by the appellant but all that he is pointing out is that in view of the provisions contained in Section 31-A of the Act the promotion of Respondents 4 and 5 under the Personal Promotion Scheme could be made only after the length of service and qualifications were prescribed by the Statutes and provisions in this regard were made in the Statutes only on 21-2-1985. In other words, what the appellant is saying is that the promotion of Respondents 4 and 5 to the grade of Professor can be regarded to have been made legally only with effect from 21- 2-1985. This does not involve a challenge to the validity of their promotion but only raises the question about the date from which it can be given effect to in law. We are of the opinion that in view of the provisions contained in Section 3 1 -A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21-2-1985, promotion under the Personal Promotion Scheme could not be made prior to 21-2-1985. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 3 1 -A by U.P. Act No. 9 of 1985 with effect from 10- 10- 1984. But Section 3 1 -A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2- 1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985 and it has to be treated to have been made with effect from 21-2-1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis."
28. Respondents, for justifying the issuance of Government Order have also referred to Section 66-A of the Act of 1973, which reads as under:-
"66A. The State Government may issue such directions from time to time to a University on policy matters, not inconsistent with the provisions of this Act as it may deem necessary such direction shall be complied with by the University."
29. The abovenoted provision is an enabling provision which permits the State Government to issue such directions, from time to time, to a University on policy matter, which are not inconsistent with the provisions of the Act and is otherwise deemed necessary. Such directions are required to be complied with by the University. The power to issue direction by the State Government has to be on matters of policy which are otherwise not inconsistent with the provisions of the Act. In the matter of grant of affiliation to a college concerned the Act of 1973 specifically provides for the course to be followed in Section 37. Affiliation has to be granted by the Executive Council of the University to a college which fulfills such conditions of affiliation, as may be prescribed in the Statutes. In such circumstances, the Executive Council is required to exercise its jurisdiction in the matter of grant of affiliation as per the conditions prescribed in the Statutes and not otherwise. Even otherwise, once it is held that the power to grant affiliation is not for a limited term and would continue so long as the affiliation is not withdrawn by exercising power in the manner as contemplated under Section 37 of Act of 1973, clauses 10(3) and 11(2) of Government Order dated 27.9.2002 would have no application. These clauses otherwise have no role to play in the current statutory scheme, as already discussed above.
30. From the deliberations and discussions aforesaid, this Court is of the considered view that the University established under the Act of 1973 once admits a college to the privileges of affiliation as per Section 37 of the Act of 1973, after introduction of amendment vide U.P. Act No.14 of 2014, it has to be treated as continuing and would not be restricted to a limited period, unless such privileges are withdrawn in accordance with Section 37(8) and (9) of the Act of 1973. This would be the position in respect of all cases of grant of affiliation after the introduction of U.P. Act No.14 of 2014. It is further held that Clauses 10(3) and 11(2) of the Government Order dated 27.9.2002 would not be a relevant consideration for the purposes of grant of affiliation to a college after 18.7.2014 when Section 37 was amended vide U.P. Act No.14 of 2014. Exercise of power by the Executive Council, for the purposes of imposing conditions for grant of affiliation would have to be restricted to the conditions specified in the Statutes of the University. Since the privileges of affiliation to the petitioners have been held to be continuing as such the benefits denied to them only on the ground that their affiliation is limited/temporary and not permanent cannot be sustained. All the writ petitions are disposed of with the direction that University would pass needful orders in light of the aforesaid observation, expeditiously, preferably within a period of one month from the date of presentation of certified copy of this order. No order is passed as to costs.
Order Date :- 12.2.2020 Anil (Ashwani Kumar Mishra, J.)