Bombay High Court
Sunil Gayaprasad Mishra vs Rashtra Sant Tukdoji Maharaj on 3 August, 2012
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari, M.T.Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPELLATE JURISDICTION
WRIT PETITION NO.1645 OF 2011.
Sunil Gayaprasad Mishra,
Aged about 42 years,
Occupation: Service,
R/o.: 11, Mire Layout,
Umrer Road, Nagpur .. Petitioner
versus
1) Rashtra Sant Tukdoji Maharaj
University, Nagpur, through its
Registrar Mr.Mahesh Yankee,
Ravindra Nath Tagore Road,
Civil Lines, Nagpur.
2) Chancellor, R.S.T.M. University,
Raj Bhawan, Mumbai 400 032.
3) Dr.Vilas Shridhar Sapkal,
Vice Chancellor of R.S.T.M.
University, Ravindra Nath Tagore
Road, Civil Lines, Nagpur.
4 Institute of Educational Research
and Development Affairs,
A registered Society through its
Secretary Smt.Rekha Mishra,
6/4, 76 MIG, Cancer Hospital Chowk, .. Respondents
Nagpur 24.
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5 Central India Institute of Mass
Communication (affiliated to the
(R.S.T.M University, Nagpur),
Ashirwad Theatre Complex,
Great Nag Road, Nagpur 3. .. Respondents
---
Mr.Kowli and Mr.S.J.Khandalkar for the petitioner.
Mr.A.M.Gordey, Sr. Advocate with Mr.B.G.Kulkarni for respondent
Nos.1 and 3.
Mr.A.G.Mujumdar, A.G.P for respondent No.2.
Mr.S.J.Shirsat for respondent No.4.
ig ---
CORAM : S.C.DHARMADHIKARI &
M.T.JOSHI, JJ.
RESERVED ON : 18th JULY 2012.
PRONOUNCED ON: 3rd AUGUST 2012.
JUDGMENT:(PER S.C.DHARMADHIKARI, J) :
On this writ petition, from time to time, orders have been made directing that it would be heard finally at Admission stage. Accordingly, we proceed to issue Rule and by consent of parties, all of whom are appearing through advocates and waive service, we dispose of this writ petition finally by this judgment.::: Downloaded on - 09/06/2013 18:56:30 ::: 3
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2} By this writ petition under Article 226 of the
Constitution of India, the petitioner has challenged the order dated 24th February 2011 by which the Vice Chancellor of the 1st respondent-University has withdrawn and cancelled the approval to the appointment of the petitioner as a lecturer in Mass Communication in Central India Institute of Mass Communication administered by Institute of Educational Research and Development Affairs, Nagpur. It is also declared by this order that the petitioner shall cease to be a teacher within the meaning of section 2(34) of the Maharashtra University Act, 1994 (for short "M.U. Act") from the date of this order.
3} The petitioner also challenges the communication dated 4th March 2011, by which the Principal of Central India Institute of Mass Communication has been intimated that the name of the petitioner as approved teacher in Mass Communication from the said college is deleted from the Electoral Roll of Board of Studies-
Mass Communication, subject- Mass Communication in the faculty of Social Sciences.::: Downloaded on - 09/06/2013 18:56:30 ::: 4
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4} Admittedly there were large scale irregularities and
illegalities in the examinations held by the first respondent -
University. At the relevant time serious allegations of forgery, in what was termed as "Mark-sheet and Revaluation Scam" were made against the petitioner and for his alleged criminal activities the petitioner was prosecuted in Criminal Case No. 372/2002 and charged with offences punishable under Sections 420, 468, 471, 120(B), 409 of Indian Penal Code. He came to be convicted and punished with imprisonment of 12 ½ years and fine of Rs. 50,000/-.
This conviction and punishment was challenged by the petitioner by filing Criminal Appeal No.18/2007, but this Court by judgment and order dated 06.02.2009 set aside the conviction and sentence under Sections 468, 471 read with Section 34 and 109 of Indian Penal Code, but, maintained the one punishable under Section 417 of the Indian Penal Code and sentenced the petitioner to suffer rigorous imprisonment for a period already undergone and to pay fine of Rs.
40,000/-. It is this conviction and sentence of a teacher like the petitioner which led to cancellation and withdrawal of an approval, which was adhoc, by the 3rd respondent vide the impugned order.::: Downloaded on - 09/06/2013 18:56:30 ::: 5
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5} The facts which are necessary to appreciate the
challenge to these orders are that the petitioner is a citizen of India and domiciled in Nagpur permanently. He has a Master's degree in Journalism. He was appointed by the respondent No.4-Society as a lecturer in the respondent No.5-Institute by an order dated 4th December 1998. The 1st respondent is the University of Nagpur and respondent Nos.2 and 3 are Chancellor and Vice Chancellor of this University respectively. Respondent No.3 was appointed as a Vice Chancellor in December 2010. Respondent Nos.4 and 5 are a Society and a College, respectively, viz., college of Media Education and Fashion Technology, which is affiliated to the 1st respondent-
University.
6} The petitioner states that he was selected by a duly constituted Selection Committee and appointed as a lecturer in Mass Communication. The petitioner himself refers to the Statutes that have been framed under the then Nagpur University Act, 1974. By the Statutes, saved by the Maharashtra University Act (Successor Legislation), there is a provision in Appendix I which refers to ::: Downloaded on - 09/06/2013 18:56:30 ::: 6 AGK wp1645.11.odt constitution of Selection Committee and its recommendation. The petitioner submits that upon his selection in terms of a recommendation of the Selection Committee, the papers were submitted for approval of the then Vice Chancellor of respondent No.1. The respondent No.1-University has enacted Direction No.7 of 1999 relating to "Implementation of the Revised University Grants Commission's Pay Scales for Teachers and other measures for maintenance of standards in higher education, 1999 (for short referred to as "Direction No.7 of 1999"). That was notified on 30th December 1999. Appendix VIII which is appended to Direction No.7, also prescribes that no selection shall be considered valid unless atleast three out of four experts are present. The recommendations of the Selection Committee shall be subject to the approval of the Vice Chancellor, who may reject the recommendations after recording reasons therefor. The relevant part of this statute has been annexed to the writ petition as Annexure P-I. Appendix-I in so far as relevant, reads as under:
" ..... The recommendations of the Selection Committee shall be subject to the approval of the Vice ::: Downloaded on - 09/06/2013 18:56:30 ::: 7 AGK wp1645.11.odt Chancellor, who may reject the recommendations after recording reasons therefor."
7} This provision has been reiterated in Statute No.1 of 2008 and therefore it is undisputed that the recommendations of the Selection Committee have to be approved by the Vice Chancellor.
The petitioner was appointed by order dated 4th December 1998 and in view of the acceptance of the recommendations, the Vice Chancellor then functioning, granted approval by an order dated 30th January 2001, a copy whereof is annexed as Annexure P-3. The petitioner then refers to several events pursuant to which the petitioner became entitled to certain privileges on his being a teacher of the affiliated college. Thus, the petitioner does not dispute that as a teacher [Section 2(34) of the M.U.Act], post approval, there are certain privileges attached and which can be availed of by the petitioner and other approved teachers. The petitioner was in the electoral roll of the Head of Departments and the same was certified by the University. Further, he was the Chairman of the Board of Studies in Mass Communication and the order to that effect is at Annexure P-7.
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8} The petitioner submitted that in 2002 challan was filed
against him for the alleged offences punishable under section 420, 468 and 471 of the Indian Penal Code and a case was registered as R.C.C.No.372 of 2002 in the Court of Additional Chief Judicial Magistrate, Nagpur. He further submits that by a judgment dated 10th January 2007 passed by the Second Additional Chief Judicial Magistrate, Nagpur, he was convicted under section 468 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.15,000/- and in default to suffer rigorous imprisonment for two months. The petitioner was also convicted under section 471 of the Indian Penal Code read with sections 34 and 109 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay Rs.5,000/- as fine and in default to suffer rigorous imprisonment for one month. The petitioner was also convicted for an offence under section 120-B of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.2,000/-
and in default to suffer rigorous imprisonment for fifteen days. The petitioner submits that he was also convicted under section 420 ::: Downloaded on - 09/06/2013 18:56:30 ::: 9 AGK wp1645.11.odt read with section 34 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six years and to pay fine of Rs.2,000/- and in default to suffer rigorous imprisonment for three months. It was directed that the sentence imposed upon the petitioner was to run consecutively. The amount of fine imposed on the petitioner was directed to be paid to the Nagpur University by way of compensation.
9} It is further submitted by the petitioner that he challenged the above said judgment and order of the Criminal Court before this High Court by filing Criminal Appeal No.18 of 2007. The said criminal appeal was admitted by this Court and the sentence imposed upon the petitioner was suspended, enlarging him on bail.
It is further submitted that apprehending that there may be issuance of a notice for withdrawal of the approval granted by the Vice Chancellor to the appointment of the petitioner in 2001, he filed a Criminal Application No.912 of 2007 for stay of conviction on the ground that the Nagpur University might issue a notice for withdrawal of the approval. However, this Court did not allow the application on the ground that the notice, apprehended, was yet to ::: Downloaded on - 09/06/2013 18:56:30 ::: 10 AGK wp1645.11.odt be issued. After the above said order of this Court rejecting the criminal application, the respondent No.1-University acting through its Registrar, issued a Notice bearing No.CS/08/1096 dated 28th March 2008. By the said notice the petitioner was called upon to furnish an explanation/show cause with regard to the withdrawal of the approval by the University. In April 2008, the petitioner submitted preliminary reply requesting the respondent No.1- University to furnish clarifications with regard to the power under which the University could issue a notice to show cause for withdrawal of the approval.
10} The petitioner submitted that the University replied to the preliminary objection by its letter dated 19th June 2008 mentioning therein that the Vice Chancellor is the competent authority under Direction No.7 of 1999 to grant approval and as such he had jurisdiction to withdraw the approval for justified reasons. Thereafter, on 25th June 2008 the petitioner submitted reply to the said letter dated 19th June 2008.
11} The petitioner further submitted that there is no power
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in the Statute No.1 of 1979 and the Direction No.7 of 1999, which have been filed on record with regard to withdrawal of the approval furnished by the Vice Chancellor to the recommendations of the Selection Committee.
12} It is submitted by the petitioner that he was appointed by a college which was not a grant-in-aid college and no grant was paid to it by the State Government. It was recognised as a college on "permanent no grant basis" institution. The petitioner states that the respondent No.4 generates its own funds for the respondent No.5 and from the said funds, it manages to maintain the college as also incurs all expenditure including payment of salaries to the staff. The petitioner further states that the University is not the appointing authority of the teachers in affiliated colleges. Similarly, the Vice Chancellor is not an appointing authority of the teachers in affiliated colleges. The petitioner submits that neither the University nor the Vice Chancellor is the disciplinary authority of the petitioner. The M.U.Act does not confer on the University or the Vice Chancellor any such power to act as disciplinary authority of all teachers of private colleges or an authority to withdraw the approval already ::: Downloaded on - 09/06/2013 18:56:30 ::: 12 AGK wp1645.11.odt granted to the recommendations of the Selection Committee for appointment of teachers in affiliated colleges. The petitioner states that when the Vice Chancellor had granted approval to the recommendations of the Selection Committee, he had examined the minutes of the Selection Committee and had found that the procedure adopted by the Selection Committee was absolutely in order and, therefore, he granted approval in accordance with Appendix I (Annexure P-I). Since the University was pursuing the notice to withdraw approval under an imaginary power in that behalf a question arose for interpretation and accordingly the petitioner preferred an application, though mentioned as appeal, to the respondent No.2 i.e the Chancellor of the respondent No.1- University. The petitioner was given to understand that as soon as the representation/appeal under section 108 of the M.U.Act was preferred before the respondent No.2, the alleged notice to show cause dated 28th March 2008 (Annexure P-8) was virtually shelved as it was not to be acted upon till an interpretation was given by the respondent No.2. The interpretation claimed was with respect to the powers of the Vice Chancellor under the M.U.Act and the statutes and ordinances made thereunder with regard to withdrawal of the ::: Downloaded on - 09/06/2013 18:56:30 ::: 13 AGK wp1645.11.odt approval granted to the recommendations of the Selection Committee for appointment of a lecturer in an affiliated college- in particular reference to the petitioner. The said representation/appeal was preferred on 29th July 2008.
13} The petitioner further states that from 29th July 2008 onwards, nothing was heard from the respondent No.2 because in the normal course the Chancellor always calls for submissions from the University and when such submissions are received, a copy thereof is sent to the applicant so as to apprise him of the stand of the University, subscribing to the principles of natural justice. Since nothing was heard in this behalf and no comments of the University were received by the petitioner, he was waiting for process of consideration to commence at the level of the respondent No.2.
Before there could be any decision of the respondent No.2 in regard to the representation dated 29th July 2008, the respondent No.3, acting with malafide intention, issued an order dated 24th February 2011, which is impugned in the present petition. The said order was received in the post office on 28th February 2011 and received by the petitioner on 3rd March 2011. An order has been made to the effect ::: Downloaded on - 09/06/2013 18:56:31 ::: 14 AGK wp1645.11.odt that the petitioner has ceased to be a teacher. The Notification is dated 4th March 2011 which shows that the name of the petitioner was deleted from the Electoral Roll of Board of Studies - Mass Communication, subject- Mass Communication in the faculty of Social Sciences. A copy of the envelope in order to justify the said submissions is filed and annexed to the petition. A close look at the envelope will show how the respondent No.2 has acted in order to bear vengeance on the petitioner for no fault of his. Consequent to the notice dated 29th July 2008, an order has been made to the effect that the petitioner has ceased to be a teacher.
14} We are not really concerned with a Public Interest Litigation stated to have been filed by the petitioner questioning the appointment of several Vice Chancellors, including the present Vice Chancellor of the respondent No.1-University, save and except, to this effect that the petitioner alleges malafides on the part of the University and the Vice Chancellor. What he states is, that once the notice of the Public Interest Litigation was received, the respondent No.3 swung into action and has passed the impugned order. It is back dated and, therefore, it is apparent according to him, that ::: Downloaded on - 09/06/2013 18:56:31 ::: 15 AGK wp1645.11.odt enraged and agitated by filing of the Public Interest Litigation, the impugned order has been passed.
15} It is the order dated 24th February 2011, which is the subject matter of challenge in this writ petition.
16} Mr.Kowli, learned counsel appearing on behalf of the petitioner submits that the petitioner's services have been approved by the then Vice Chancellor of the 1st respondent-University as early as on 30th January 2001. That approval is final and conclusive. By the very nature of the power exercised, it is apparent that it is quasi judicial. There is no question of withdrawal of the approval once granted. Even if it is assumed that approval is granted in terms of the statutes and which statutes are framed under the M.U.Act, the power is not statutory in nature. Therefore, section 21 of The Bombay General Clauses Act, 1904, cannot be invoked. There is no implied power to recall, withdraw or revoke the approval which is once granted. In such circumstances, the 3rd respondent had no jurisdiction or authority to pass the impugned order. The impugned order is, therefore, ex-facie erroneous and vitiated in law and ::: Downloaded on - 09/06/2013 18:56:31 ::: 16 AGK wp1645.11.odt deserves to be quashed and set aside on this ground alone.
17} Alternatively and without prejudice to the first submission so also assuming that the 3rd respondent had power to set aside or withdraw the approval, that power has been exercised arbitrarily and malafide. Inviting our attention to the allegations in the writ petition, Mr.Kowli submits that the respondent No.2 was agitated and annoyed at the filing of the Public Interest Litigation in which his appointment as a Vice Chancellor has been questioned.
The petitioner has pointed out as to how the respondent No.3 acted with undue haste. The petitioner submits that the order was received in the post office on 28th February 2011. It was received by the petitioner on 3rd March 2011. A close look at the envelope will show how respondent No.2 has acted in order to wreak vengeance on the petitioner. The petitioner has filed the Public Interest Litigation some time on 22nd February 2011. On that day, a request was made before this Court that a senior advocate will address to the Court on behalf of the petitioner. Therefore, the case was fixed on 28th February 2011. Between 22nd February 2011 and 28th February 2011, the petitioner was approached by several persons on ::: Downloaded on - 09/06/2013 18:56:31 ::: 17 AGK wp1645.11.odt behalf of the respondent No.3 and told to withdraw the Public Interest Litigation so that the situation of his approval being withdrawn can be avoided. The petitioner did not accede to such proposals and indeed forwarded advance copies of the Public Interest Litigation to the respondent No.3. It is in these circumstances, that the date inserted on the order is 24th February 2011 but it was dispatched on 28th February 2011. Thus, when the petitioner did not withdraw the writ petition, the respondent No.3 decided to cancel his approval and did so by the impugned order.
Thus, this is clear case of malafides. The respondent No.3 has abused his power and authority.
18} Lastly, Mr.Kowli submits that the 3rd respondent could not have passed the impugned order when the petitioner had invoked the power of the Chancellor under section 108 of the M.U.Act. The petitioner and even the University was informed throughout that the Chancellor is looking into the petitioner's grievance. The correspondence to this effect would indicate that the Chancellor had sought certain information from the University and was awaiting the receipt of the same. The correspondence in the ::: Downloaded on - 09/06/2013 18:56:31 ::: 18 AGK wp1645.11.odt month of August 2010 and January 2011 is consistent and throughout refers to the appeal under section 108 of the M.U. Act.
That appeal challenged the show cause notice issued on 28th March 2008. In fact, the extent of the power conferred in the Vice Chancellor and particularly of the nature apprehended by the petitioner, was in issue, which required intervention of the Chancellor and an authoritative interpretation at his end. In these circumstances, without waiting for the outcome of the appeal before the Hon'ble Chancellor and relying on some communication, the tenor of which is inconsistent with the correspondence, the impugned order has been passed. Thus, the letter dated 19th July 2010, a copy of which is at page 198 of the paper book, will prove the petitioner's case raised hereinabove. Even the file notings show the apparent contradictions and inconsistency. In such circumstances, the petitioner has been treated unfairly, unjustly and unreasonably. Therefore, the order violates the mandate of Article 14 of the Constitution of India.
19} An attempt was also made by Mr.Kowli to assail the impugned order on the ground that the same does not consider the ::: Downloaded on - 09/06/2013 18:56:31 ::: 19 AGK wp1645.11.odt order of the Appellate Court in Criminal Appeal No.18 of 2007. That order totally exonerates the petitioner from the charges of forgery and cheating. In such circumstances and when the petitioner is acquitted of the said charges, relying on his conviction by the trial Court, the impugned order could not have been passed.
20} For all these reasons, it is submitted that the petition deserves to succeed. Mr.Kowli relies upon following decisions in support of his submissions:
(1) A.I.R 1958 Supreme Court 1018 (State of Bihar vs. D.N.Ganguly and Others);
(2) A.I.R 1989 Supreme Court 49 (State of Kerala and Others vs. K.G.Madhavan Pillai and Others);
(3) A.I.R 1991 Supreme Court 2160 (H.C.Suman and Another vs. Rehabilitation Ministry Employees Co-operative House Building Society Ltd, New Delhi and Others); (4) 1999 (4) Bombay Cases Reporter 123 (Jagannath Janardhan Joshi and Another vs. North Maharashtra University, Through its Vice Chancellor and Others);
(5) (2002) 5 Supreme Court Cases 685 (Indian National Congress(I) vs. Institute of Social Welfare and Others).::: Downloaded on - 09/06/2013 18:56:31 ::: 20
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21} On the other hand, Mr.Gordey, the learned senior
counsel appearing on behalf of respondent Nos.1 and 3 submits that this matter has to be looked at from the point of prestige and reputation of the University like Nagpur University and the position of the Vice Chancellor. He submits that the Chancellor and Vice Chancellor's powers are enumerated by sections 9 and 14 of the M.U. Act. They are of very wide nature. The Vice Chancellor is the incharge of the academic affairs and overall supervisor of the University Education. Merely because an affiliated college chooses to appoint a lecturer, the recommendation of a Selection Committee in that regard, is not binding on the Vice Chancellor. The Vice Chancellor's approval is needed not only for the appointment but for prior steps, including the advertisement and the composition of the Selection Committee. The Vice Chancellor has thus a pivotal position and after the Selection Committee's recommendations are placed before him, it is only after his approval that the appointment takes effect. If the statute is perused carefully, it is apparent that the recommendations of the Selection Committee shall be subject to the approval of the Vice Chancellor, who may reject them after recording reasons. In such circumstances, to suggest that the Vice ::: Downloaded on - 09/06/2013 18:56:31 ::: 21 AGK wp1645.11.odt Chancellor has no power to withdraw the approval which has been granted, would undermine the dignity and position of his office.
22} Mr.Gordey relies upon the decision of the Hon'ble Supreme Court in the case of the Marathwada University vs. Seshrao Balwant Rao Chavan reported in A.I.R 1989 Supreme Court 1582.
Mr.Gordey also submits that the definition of the term "teacher"
appearing in section 2(34) of the M.U.Act would demonstrate that the approved teacher is entitled to certain privileges and benefits and which have been availed of by a teacher like petitioner. Thus, the role of the teacher, the definition of the term appearing in the M.U.Act, all would go to show that not only the qualifications and experience but character of a teacher is of paramount importance.
In these circumstances, to hold that the Vice Chancellor has no power to withdraw the approval or cancel it, would render the provisions in the Act otiose and nugatory. The power of the Vice Chancellor is derived from section 14 of the M.U.Act. The power conferred thereby is advisedly very wide. If it is so, then, the Vice Chancellor must have all implied powers so as to make the grant effective. In other words, role of a Vice Chancellor as a conscience ::: Downloaded on - 09/06/2013 18:56:31 ::: 22 AGK wp1645.11.odt keeper and over all supervisor, would take within its fold all such ancillary or incidental powers, so as to make it effective and complete. Any other interpretation would defeat the object and purpose of conferring supervisory and all pervasive powers on the Vice Chancellor.
23} Mr.Gordey also submits that if in this case the direction of the Chancellor had to be implemented by the Vice Chancellor and none else, then, it was incumbent upon him to initiate the process of withdrawal of approval and complete the exercise as directed by the Chancellor. Any non compliance therewith would have undermined the prestige and dignity of the office of the Chancellor of the Nagpur University so also tarnished the image and reputation of the University itself. In these circumstances, this Court should uphold the exercise of power in this case rather than strike it down.
24} In this behalf, Mr.Gordey also submits that if approval as a teacher brings along with it privileges and benefits such as representing the University, examining and evaluating the papers and getting elected and appointed to academic bodies of the ::: Downloaded on - 09/06/2013 18:56:31 ::: 23 AGK wp1645.11.odt University, then, power to grant approval would inhere in it a power to withdraw or cancel the same. It is that role and the position of the petitioner as an approved teacher which must be borne in mind while scrutinizing the order of the Vice Chancellor and the action of withdrawal or cancellation of the approval. In these circumstances, there is no substance in the contention that approval once granted is final and conclusive and/or the Vice Chancellor is functus officio after he accords the approval. The argument of the petitioner's counsel is wholly fallacious. The argument proceeds on the basis that the Vice Chancellor has only a power to approve the recommendation of the Selection Committee or to disapprove it by recording reasons. The further argument is that this is a onetime exercise. Once the Selection Committee's recommendations are accepted by the Vice Chancellor, that means he approves the appointment and thereafter nothing is left to done. In all such cases it would mean that the approval once granted continues and if the teacher whose appointment is approved has to be proceeded against, that would be only by initiation of disciplinary proceedings and not otherwise. In other words, the approval continues till the teacher is in office and, save and except, initiation of disciplinary ::: Downloaded on - 09/06/2013 18:56:31 ::: 24 AGK wp1645.11.odt proceedings, nothing can be done in case of an approved teacher.
Such an argument would make even the statute which have been relied upon, wholly redundant. The statutes state that all appointments of teachers in colleges shall be made on merit and on the basis of all India Advertisement. The qualifications prescribed for the posts should essentially be related to the academic attainment in the subject concerned and should not be linked with language or other regional consideration. The appointment should not be made on communal or caste considerations. The statute even prescribes the constitution of a Selection Committee for recruitment to the posts of lecturers in a college. The recommendations of the Selection Committee shall be subject to the approval of the Vice Chancellor, who may reject them. However, that does not mean that thereafter the Vice Chancellor is powerless. In these circumstances, the principle underlying section 21 of the Bombay General Clauses Act should be imported and read into the powers conferred by section 14(1) of the Maharashtra Universities Act, 1994 read with Statute No.8 of 1979 and Appendix-I, prescribing the terms and conditions attached to the revised scales of pay.
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25} Mr.Gordey then submits that there is absolutely no
substance in the allegations of bias and malice. The allegations are totally vague. Inviting our attention to pages 19 and 20 of the writ petition, it is submitted that there are no particulars whatsoever and pertinently about the name of the person, date and time, when that person approached and prevailed upon the petitioner to withdraw the Public Interest Litigation. It is essential to establish the nexus between the person who approached the petitioner allegedly and the Vice Chancellor. If within two days of filing of the Public Interest Litigation or mentioning it, the impugned order has been passed but the Public Interest Litigation itself was taken up subsequently, then, that destroys the case of malice or malafides. There is absolutely no plea of bias but even that cannot be attributed in this case. For all these reasons, once the action to cancel the approval was already initiated, then, no adverse inference can be drawn. It is submitted that Mr.Gordey that all the allegations have been denied by respondent No.3 on affidavit and he invites our attention to pages 142 to 146 in that behalf. This is part of the affidavit that has been filed by respondent Nos.1 and 3 and particularly by respondent No.3. Mr. Gordey then submits that there is an explanation which ::: Downloaded on - 09/06/2013 18:56:31 ::: 26 AGK wp1645.11.odt was sought by the Chancellor and if the Vice Chancellor had not taken steps, then, that would mean defying the direction of the Chancellor. The show cause notice in this case was issued by the then Vice Chancellor on 28th March 2008. The petitioner replied thereto on 25th June 2008. A proceeding stated to be under section 108 and styled as an appeal was filed on 29th July 2008. That was pending but during its pendency the explanation was sought by the Chancellor from the University on 19th July 2010, all this while, the present Vice Chancellor was not in office. It is only when the final order was passed, that the incumbent was holding that office. In such circumstances and when the definition of the term "teacher"
includes a teacher from the affiliated institution or college and whose appointment is duly approved, then, the Vice Chancellor has not committed any malice in law either. For all these reasons, it is submitted that the petition be dismissed.
26} Mr.Gordey has relied upon the following decisions in support of the above contentions:
(1) 1991 (4) Supreme Court Cases 39 (Amir Shad ::: Downloaded on - 09/06/2013 18:56:31 ::: 27 AGK wp1645.11.odt Khan vs. L.Hmingliana and Others); (2) AIR 1996 Supreme Court 576 (Janata Dal
(Samajwadi) vs. Election Commission of India;
(3) 2006 (6) Supreme Court Cases 162 (M.P.Gangadharan and Another vs. State of Kerala and Others) 27} Mr.Gordey has also distinguished a judgment which has been relied upon by Mr.Kowli and rendered by the Division Bench of this Court in the case of Jagannath Janardhan Joshi and Another vs. North Maharashtra University, Through its Vice Chancellor and Others (Writ Petition No.928 with Writ Petition No.1034 of 1999 decided on 17th July 1998) reported in 1999(4) Bombay Cases Reporter 123.
Mr.Gordey submits that this judgment is not a precedent for the proposition that once the approval is granted, it is irrevocable.
There, the approval which was granted by the Vice Chancellor to an appointment of the Principal of the affiliated college was withdrawn by the Executive Committee. Therefore, the Executive Council was held to be bereft of any power to cancel or withdraw the approval.
This judgment must be seen in the backdrop of the facts and question posed and answered by the Division Bench. The paragraph ::: Downloaded on - 09/06/2013 18:56:31 ::: 28 AGK wp1645.11.odt of the judgment relied upon are not its ratio and the observations therein can be safely termed as obiter. For all these reasons, it is submitted that the petition be dismissed.
28} For properly appreciating the rival contentions, one must proceed on the basis of the admitted facts.
29} With the assistance of the learned counsel appearing for parties, we have perused writ petition and annexures and all affidavits on record. The admitted facts emerging from the petition itself are that the petitioner is a lecturer in the affiliated college or institution and in subject of Mass Communication and Journalism.
He was also the Chairman of the Board of Studies, Nagpur University in Mass Communication. He was also registered as a voter in the voter list for the election of the senate and the academic council for the year 2010. On his own showing, he enjoys all privileges, benefits being a teacher of the affiliated college. The petitioner relies on section 2(34) to this effect. He states that the approval to his appointment was granted by order dated 30th January 2001 and a copy of which has been annexed to the writ ::: Downloaded on - 09/06/2013 18:56:31 ::: 29 AGK wp1645.11.odt petition at page 74.
30} The petitioner does not dispute that on 29th December 2005 he was nominated as a Chairman of the Adhoc Board of Studies in Mass Communication.
31} The petitioner was served with the notice for withdrawal of approval as a lecturer because a Criminal Case No.372 of 2002 for offences punishable under sections 420, 468, 471, 120-B and 409 of the Indian Penal Code was instituted before the Court of competent jurisdiction and by a judgment delivered on 10th January 2007, the petitioner was convicted with a punishment of imprisonment for twelve and half years and fine of Rs.50,000/-. It may be that on the date on which this show cause notice was served, the petitioner had appealed to this Court but there was no stay of the judgment and merely the sentence was suspended. That is how he was called upon to show cause as to why approval granted to his appointment as a lecturer in the Central India Institute of Mass Communication should not be cancelled or withdrawn as the offences involve moral turpitude.
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32} The petitioner showed cause and pointed out that his
appointment is in a college which is "Permanent No-Grant Basis"
Institution. He states that he does not draw any salary or perks from the Government Exchequer. He, therefore, sought a clarification as to under which provision of the Maharashtra Universities Act, 1994, the show cause notice is issued. He also sought clarification as to what show cause notice meant with regard to the privileges as an approved teacher.
33} On this letter, the petitioner was informed n 19th June 2008 as under:
"To, Date: 19th June 2008
Shri Sunil G. Mishra,
Director,
Central India Institute of Mass Communication, V.I.P Road, Dharampeth, Nagpur.
Subject: Show cause Notice dated 28.3.2008 regarding withdrawal of approval as a lecturer Ref. : Your letter dated Nil.
Sir,
With reference to above, I am to inform you as
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under:-
In so far as approval to appointment is concerned, it has been granted in terms of Statute 8 of 1979 and is continued in terms of Direction No.1 of 89 and 7 of 1999. The approval to the appointment has no relation whatsoever to grant-in-aid of the college. Because of the approval to the appointment, the teacher is entitled to claim the privileges of approved teacher.
The Hon'ble Vice-Chancellor is competent authority under direction No.7 of 1999 to grant approval and hence the said officer has jurisdiction to withdraw the approval for justified reasons.
You are, therefore, requested to submit your explanation within 7 days from the receipt of this letter. In the event reply/explanation is not received, the matter will be processed further as per rule.
Yours, Sd/-
Director, B.C.U.D."
34} The petitioner once again raised the issue of what privileges an approved teacher enjoys and as to who could be the disciplinary Authority. It appears he was consistently taking up the ::: Downloaded on - 09/06/2013 18:56:31 ::: 32 AGK wp1645.11.odt issue of not being treated fairly.
35} It is in these circumstances that he made an application styled as an appeal under section 108 of the Act before the Chancellor, in which as well he does not dispute the above factual position and his conviction but merely states that criminal appeal is pending. Subsequently, the petitioner relies upon the correspondence, pursuant to which the office of the Secretary to the Governor, i.e the Chancellor of the 1st respondent-University, seeking an explanation from the Nagpur University. The petitioner relies upon the information provided to him under the Right to Information Act, 2005 and submits that there is a correspondence repeatedly seeking explanation from the respondent No.1 in response to this appeal. Ultimately, there is a response given and in which it has been clearly stated that the petitioner's appointment in affiliated college and particularly to the post of lecturer, is valid only after there is an approval to the same from the Vice Chancellor.
There is an express provision to that effect in Direction No.1 of 1989 as well as subsequent Direction No.7 of 1999. Therefore, the University which is competent to grant approval is equally ::: Downloaded on - 09/06/2013 18:56:31 ::: 33 AGK wp1645.11.odt competent to withdraw the same for valid reasons. Hence, the Vice Chancellor is empowered under the statutory provision to withdraw the approval in view of the conviction for offence involving moral turpitude. That is a valid ground for taking action. It appears that in the meanwhile when the matter was moved within the University, the Criminal Appeal was disposed off by this Court. There is no reason to doubt that after the disposal of the criminal appeal by this Court even though the petitioner was convicted, not for forgery and the trial Court's judgment and order in that behalf was set aside, yet, he has been convicted for offence punishable under section 417 of the Indian Penal Code. That provision reads as under:
"417 Punishment for cheating.- Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
36} The petitioner was sentenced with rigorous imprisonment which has been already undergone and fine of Rs.40,000/- was imposed. The University, therefore, maintained that the offence for which he has been convicted, falls within the purview of moral turpitude. The University has, therefore, informed ::: Downloaded on - 09/06/2013 18:56:31 ::: 34 AGK wp1645.11.odt the Vice Chancellor that the fact of his conviction was also suppressed by the petitioner while contesting the election from the Nagpur Parliamentary Constitution. He has been delaying the matter by submitting that an appeal under section 108 of the Act is pending before the Chancellor. Therefore, the response, to the letter dated 19th July 2010 which directed the Vice Chancellor to look into the matter personally and sent a factual report and action proposed to be taken, has been the same as before. It is in view of this direction that the Vice Chancellor took up the matter.
37} The petitioner does not dispute that when the show cause notice was issued way back in March 2008, the present respondent No.3 was not the Vice Chancellor. The matter was pending for more than two years with the University and in the meanwhile, the petitioner's conviction for the offences alleged was reversed by this Court. Yet, this Court held that the petitioner on the evidence adduced, can be convicted for offence punishable under section 417 of the Indian Penal Code.
38} At this stage it would be worthwhile reproducing paras
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35
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3(c), to 3(k) of the affidavit in reply of respondent Nos.1 and 3.
They read as following:
"3 (a)... (b) ...
(c) It is not in dispute that the petitioner was selected as lecturer in Mass Communication in respondent No.5 college and was appointed on 4.12.1998.
(d) It is submitted that though the proposal for grant of approval to the appointment of petitioner was received by the University in December 1998, the Vice Chancellor of the University had not granted approval till 30.01.2001 for a valid reason. It is submitted that at the relevant time, the petitioner was facing prosecution for offences punishable under sections 384, 354, 376, 509 and 292 of I.P.C in Session Trial No.190/1998 (Crime No.84/1998). Hence during that period it was not prudent for the Vice Chancellor to grant approval. The order of approval dated 30.01.2001 was issued by the Vice Chancellor after the petitioner was acquitted in the said prosecution.
(e) It is submitted that the appointment of the petitioner was approved by the Vice Chancellor on adhoc basis because the petitioner was not qualified for the post of lecturer. As per the U.G.C qualifications the candidate besides holding Master's degree with 55% marks was required to clear NET/SET. The candidates who had acquired Ph.D or M.Phil ::: Downloaded on - 09/06/2013 18:56:31 ::: 36 AGK wp1645.11.odt upto 31.12.1993 were exempted from the requirement of NET/SET. As per subsequent U.G.C notification the candidates who have acquired Ph.D are exempted from NET/SET. During the period from 14.06.2006 to 11.07.2009, the candidates having Ph.D or M.Phil degree were exempted from NET/SET. The fact remains that the petitioner till date has not acquired NET/SET qualification nor has he acquired Ph.D degree. Hence the petitioner continued to be adhoc approved teacher upto 24.02.2011.
(f) It is submitted that the petitioner was one of the accused in fake marklist and revaluation scam investigated by the Special Investigation Agency and Criminal Case No.372/2002 was filed by the prosecution against the petitioner.
(g) The petitioner was convicted in the said prosecution as per judgment dated 10.01.2007 passed in Criminal Case No.372/2002 for offences punishable under section 420, 468, 471, 120B, 409 of Indian Penal Code for total imprisonment of 12½ years and fine of Rs.50,000/-.
(h) The petitioner had filed Criminal Appeal No.18 of 2007 challenging his conviction by the Trial Magistrate before this Hon'ble Court. This Hon'ble Court was pleased to suspend the sentence of imprisonment. There was no stay to the conviction.
(i) In view of the conviction of the petitioner in criminal case involving offences of moral turpitude show cause notice ::: Downloaded on - 09/06/2013 18:56:31 ::: 37 AGK wp1645.11.odt dated 28.03.2008 was served upon the petitioner.
(j) After receipt of show cause notice dated 28.03.2008, the petitioner had filed criminal application before this Hon'ble Court praying for stay of conviction and had submitted letter dated 22.04.2008 to the University informing that till the decision of Criminal Appeal No.18 of 2007 no action should be taken against him otherwise it would amount to the contempt of the Court.
(k) It is submitted that as per the judgment dated 06.02.2009 this Hon'ble Court was pleased to decide Criminal Appeal No.18 of 2007 and the petitioner was convicted for the offence punishable under section 417 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for the period already undergone and to pay fine of Rs.40,000/- or in default to suffer rigorous imprisonment for two months. The said judgment has become final and binding."
39} Pertinently, there is no denial of the above statements.
There is no rejoinder by the petitioner. We are of the view that a teacher within the meaning of section 2(34) of the Act, would include the petitioner and, therefore, it is futile for him to urge that it is not clear how the Maharashtra Universities Act, 1994 applies to him. If the definition itself refers to a full-time approved professor, ::: Downloaded on - 09/06/2013 18:56:31 ::: 38 AGK wp1645.11.odt associate professor, assistant professor, reader, lecturer etc and that person may not be working in any University Department but even if he is working in any affiliated or autonomous institution in the University, he would be covered by this definition. It is not as if the petitioner is unaware of this position because he himself relies on this definition. Thereafter, the petitioner is also not oblivious of the fact that the Maharashtra Universities Act, 1994 is an Act to unify, consolidate and amend the law relating to the non-agricultural and non-technological universities in the State of Maharashtra. It presents a united pattern for better governance of Universities and reorganisation of higher education. One of the objects and purpose of the Act is to ensure proper selection and appointment of teachers as employees, to take measures for curbing or for eradicating undesirable non-academic influences detrimental to maintenance of discipline and standards of education or academic excellence in the Universities and to provide for matters connected with or incidental thereto.
40} The various definitions are set out in section 2 of the Maharashtra Universities Act, 1994. The definition of the term ::: Downloaded on - 09/06/2013 18:56:31 ::: 39 AGK wp1645.11.odt "prescribed" is set out in section 2(24) which means prescribed by Statutes or Ordinances or Regulations, as the case may be, made by or under this Act. The petitioner does not dispute that the term "Statutes", "Ordinances", "Regulations" means respectively, the Statutes, Ordinances and Regulations of the University made by or under this Act. Whereas, the term "teacher" is defined, the term "university teacher" is also defined separately. There is also a definition of the term "affiliated college" in section 2(3), which means a college which has been granted affiliation by University.
Equally, an "autonomous college", "autonomous institution" or "autonomous department" means a college or institution or department to which autonomy is granted and is designated to be so by the Statutes. The term "college" as set out in section 2(10) means a college conducted by the University, or affiliated to the university, situated in the University area. Thus, if the petitioner is aware of the fact that the 5th respondent-Institute is an affiliated college and that appointment of the petitioner therein has to be approved by the Vice Chancellor, then, the act of the petitioner in questioning the Authority of the University is nothing but an attempt to delay the proceedings.
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41} The petitioner seems to be under an impression that
having moved the Chancellor under section 108 of the Act, the University cannot proceed against him. Section 108 provides for questions regarding interpretation and dispute regarding constitution of the University authority or body, which are to be decided by the Chancellor. If question arises regarding interpretation of provision of this Act, or of any Statute, Ordinance, Regulation or Rule, or whether a person has been duly elected or appointed or nominated or opted as, or is entitled to be a member of any authority or body of the university, the matter may, be referred, on petition by any person or body directly affected, or suo motu by the Vice Chancellor to the Chancellor, who shall after taking such advice as he thinks necessary, decide the question and his decision shall be final. It may be that the petitioner has made an appeal requesting for interpretation of the provisions relied upon by the University and their applicability to him, yet, when the petitioner himself annexes statutes providing for approval to the appointments for the post of lecturers by the Vice Chancellor and which Statutes are traceable to the Maharashtra Universities Act, 1994 itself, then, we are of the ::: Downloaded on - 09/06/2013 18:56:31 ::: 41 AGK wp1645.11.odt view that there is never any doubt in the mind of the petitioner that he is governed by the Maharashtra Universities Act, 1994, which in turn facilitates making of Statutes and Ordinances. In such circumstances, the Ordinance relied upon is referable to the Act and secondly, if there was any doubt that has been settled by the letter dated 19th July 2010 from the Chancellor, which calls upon the Vice Chancellor of the respondent No.1-University to take action with regard to the petitioner's conviction and report compliance to him.
Even if the appeal or proceeding under section 108 is pending, the Chancellor was empowered to issue this directive and we do not feel that there is any reason to doubt that such a letter was addressed from the office of the Chancellor. Once it was so addressed and received, then, the University decided to proceed to cancel or withdraw the approval and which decision also does not suffer from any undue haste or arbitrariness as alleged by the petitioner. That letter is dated 19th July 2010 and the impugned order came to be passed in the month of February 2011. We do not see how the proceedings were concluded hastily and without any application of mind, as alleged. There is nothing erroneous in the approach of the University in acting in furtherance of the communication dated 19th ::: Downloaded on - 09/06/2013 18:56:31 ::: 42 AGK wp1645.11.odt July 2010. Therefore, the argument of Mr.Kowli that the Vice Chancellor of the University proceeded without waiting for the outcome of the appeal before the Chancellor, is without any substance and has no merit.
42} We feel that the argument that the petitioner being a teacher within the meaning of the Maharashtra Universities Act, 1994, can only be proceeded for violation of the conduct and disciplinary rules, either by the management of the affiliated college or by the University, is also without any basis or substance. Section 4 of the Maharashtra Universities Act, 1994 sets out the objects of the University and reads as under:
"4. Objects of university.
The objects of the university shall be to disseminate, create and preserve knowledge and understanding by teaching, research, extension and service and by effective demonstration and influence of its corporate life on society in general, and in particular the objects shall be-
(1)To carry out its responsibility of creation, preservation, and dissemination of knowledge; (2)To promote discipline and the spirit of intellectual ::: Downloaded on - 09/06/2013 18:56:31 ::: 43 AGK wp1645.11.odt inquiry and to dedicate itself as a fearless academic community to the sustained pursuit of excellence;
(3)To encourage individuality and diversity within a climate of tolerance and mutual understanding; (4)To promote freedom, secularism, equality and social justice as enshrined in the Constitution of India and to be catalyst in socio-economic transformation by promoting basic attitudes and values of essence to national development;
(5)To extend the benefits of knowledge and skills for development of individuals and society by associating the university closely with local and regional problems of development;
(6)To carry out social responsibility as an informed and objective critic, to identify and cultivate talent, to train the right kind of leadership in all walks of life and to help younger generation to develop right attitudes, interests and values;
(7)To promote equitable distribution of facilities of higher education;
(8)To provide for efficient and responsive administration, scientific management and develop organization of teaching (research and extension); (9)To promote acquisition of knowledge in a rapidly developing and changing society and to continually offer opportunities of upgrading knowledge, training ::: Downloaded on - 09/06/2013 18:56:31 ::: 44 AGK wp1645.11.odt and skills in the context of innovations, research and discovery in all fields of human endeavor by developing higher educational network with use of modern communication media and technologies appropriate for a learning society;
(10)To promote national integration and preserve cultural heritage;
(11)To develop work culture and promote dignity of labour through applied components in the syllabi;
(12)To build up financial self-sufficiency by undertaking academic and allied programmes and resource generative services in a cost-effective manner; (13)To promote better interaction and co-ordination among different universities and colleges by all such means generally to improve the governance of the university and facility it provides for higher education; (14)To generate and promote a sense of self-respect and dignity amongst the weaker sections of the society;
(15)To strive to promote competitive merit and excellence as the sole guiding criterion in all academic and other matters relating to students."
43} In a decision reported in AIR 2005 Supreme Court 2026 (Prof. Yashpal and Another vs. State of Chattisgarh and Others), in the context of the importance of a University, the Hon'ble Supreme ::: Downloaded on - 09/06/2013 18:56:31 ::: 45 AGK wp1645.11.odt Court observes as under:
"... In the New Encyclopedia Britannica (15th ed) "University" has been described as under:
(Page 165) University, institution of higher education, usually comprising a liberal arts and sciences college and graduate and professional schools and having the authority to confer degrees in various fields of study. .........
(Page 186) Universities and students looked toward ways of creating opportunities for a satisfying career outside traditional roles for graduates in scholarship, teaching, and the professions. The university's basic traditional functions remain unchanged- enabling students to learn from their cultural heritage, helping them to realize their intellectual and creative abilities, and encouraging them to become humane and responsible people. The university expands knowledge across the entire spectrum of disciplines, and it can add to the understanding and enjoyment of life. It continues to be needed for imaginative solutions to the problems of society. .....
15 The Government of India constituted a Committee in December 1961 to consider broadly the organizational ::: Downloaded on - 09/06/2013 18:56:31 ::: 46 AGK wp1645.11.odt structure of the Universities in India and to prepare the outline of a "Model Act" suited to their role and functions of which Dr.D.S.Kothari, Chairman, UGC was the Chairman and several other persons who were either Vice-Chancellors of Universities or were connected with the field of education were members. In the concluding part of the First Chapter, the Committee noted as under:
"... The function of the university is not only to preserve, disseminate and advance knowledge but also to furnish intellectual leadership and moral tone to society. No less important is the role of universities in promoting national integration and a common culture, and in bringing about the social transformation that is desired. Finally, universities have also to provide trained personnel to advance the country's prosperity by making full use of modern knowledge. The organizational pattern must enable the universities to achieve these objectives."
These reports prepared by most learned and eminent educationists in post independence era highlight the primary function of the Universities viz teaching and research and to provide trained and qualified personel for the progress of the nation."
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44} A bare perusal of the same would demonstrate that the
University has to disseminate, create and preserve knowledge and understanding by teaching, research extension and service and promote discipline and the spirit of intellectual inquiry and to dedicate itself as a fearless academic community to the sustained pursuit of excellence. It is in furtherance of these objects that section 5 sets out the powers and duties of the University. That provision in so far as relevant reads thus:
"5 Power and duties of university.
The University shall have the following powers and duties, namely:-
.....
(2) to make provision for research and for the advancement and dissemination of knowledge, and generally to cultivate and promote the arts (including the fine arts), commerce, sciences, medicine, engineering, technology, law, physical education, and other branches of learning and culture and their interdisciplinary areas;
(3) to make provision to enable conducted and affiliated colleges and recognised institutions to undertake specialised studies;::: Downloaded on - 09/06/2013 18:56:31 ::: 48
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....
(21) to lay down the conditions of affiliation of colleges and recognition of institutions taking into account the credibility of the management and the norms of academic performance of colleges, faculties and subjects, as may be laid down, from time to time, and satisfy itself by periodical assessment or otherwise that those conditions are fulfilled;
(22) to admit to the privileges of the university, affiliated colleges and institutions not maintained by the university and withdraw all or any of those privileges and recognise hostels not maintained by the university and withdraw such recognition, temporarily or permanently;
(23)to designate a university department, conducted college, an affiliated college, institution or school as an autonomies university department, conducted college, affiliated college or institution or school, as the case may be, in accordance with the guidelines, if any, laid down by the University Grants Commission;
(24) to monitor and evaluate the academic performance of affiliated colleges and recognised institutions for affiliation and periodical accreditation;
....
(35) to provide for periodical assessment of the performance ::: Downloaded on - 09/06/2013 18:56:31 ::: 49 AGK wp1645.11.odt of teachers and non-teaching employees of the college, institutions and university in accordance with the provisions of the Statutes;
....
(43) to rescind affiliation granted to colleges;"
45} A perusal of section 5(2), 5(3), 5(21), 5(22), 5(23), 5(24), 5(35), 5(37) and 5(49), would go to show that the Act enacts such a code as would make governance and administration of University proper, fruitful and complete. Section 6 provides for jurisdiction and admission to privileges of university. Section 7 states that University shall be open to all, irrespective of sex, creed, class, caste, place of birth, religion or opinion. Section 8 provides for control of State Government and Universities. Thereafter section 8(3) reads as under:
"8 Control of State Government and universities. ....
(3) The State Government may in accordance with the provisions contained in this Act, for the purpose of securing and maintaining uniform standards, by notification in the Official Gazette, prescribe a Standard Code providing for the classification, manner and mode of ::: Downloaded on - 09/06/2013 18:56:31 ::: 50 AGK wp1645.11.odt selection and appointment, absorption of teachers and employees rendered surplus reservation of posts in favour of members of the Scheduled Castes, Scheduled Tribes, (Denotified Tribes (Vimukta Jatis), Nomadic Tribes] and Other Backward Classes, duties, workload, pay, allowances, post-retirement benefits, other benefits, conduct and disciplinary matters and other conditions of service of the officers, teachers and other employees of the universities and the teachers and other employees in the affiliated colleges and recognised institutions (other than those managed and maintained by the State Government, Central Government and the local authorities). When such Code is prescribed, the provisions made in the Code shall prevail, and the provisions made in the Statutes Ordinances, Regulations and Rules made under this Act, for matters included in the Code shall, to the extent to which they are inconsistent with the provisions of the Code, be invalid.
.... "
46} Thereafter, there is Chapter III which gives to the Chancellor wide powers (section 9). Section 10 confers powers on other officers of the University and Section 11 provides for Vice-
Chancellor and Pro-Vice Chancellor. Section 12 deals with appointment of Vice Chancellor and then comes section 14 which ::: Downloaded on - 09/06/2013 18:56:31 ::: 51 AGK wp1645.11.odt provides for powers and duties of the Vice Chancellor and reads as under:
"14 Powers and Duties of Vice-Chancellor. (1)The Vice-Chancellor shall be the principal academic and executive officer of the university responsible for the development of academic programmes of the university.
He shall oversee and monitor the administration of the academic programmes and general administration of the university to ensure efficiency and good order of the university.
(2)He shall be entitled to be present, with the right to speak, at any meeting of any other authority or body of the university, but shall not be entitled to vote thereat, unless he is the Chairman or member of that authority or body.
(3)The Vice-Chancellor shall have the power to convene meeting of any of the authorities, bodies or committees, as and when he considers it necessary so to do.
(4)The Vice-Chancellor shall ensure that directions issued by the Chancellor are strictly complied with or, as the case may be, implemented.
(5)It shall be the duty of the Vice-Chancellor to ensure that [the directives of the State Government, if any, and] the provisions of the Act, Statutes, Ordinances and ::: Downloaded on - 09/06/2013 18:56:31 ::: 52 AGK wp1645.11.odt Regulations are strictly observed and that the decisions of the authorities, bodies and committees which are not inconsistent with the Act, Statutes, Ordinances or Regulations are properly implemented.
(6)The Vice-Chancellor may defer implementation of a decision taken or a resolution passed by any authority, body or committee of the University if, he is of the opinion that the same is not consistent with the provisions of the Act, Statutes, Ordinances or Regulations or that such decisions or resolution is not in the interest of the university and at the earliest opportunity refer it back to the authority, body or committee concerned for reconsideration in its next meeting within a reasons to be recorded in writing. If differences persist, he shall within a week, giving reasons submit it to the Chancellor for decision and inform about having done so to the members of the authority, body or committee concerned. After receipt of the decision of the Chancellor, the Vice Chancellor shall take the action as directed by the Chancellor and inform the authority, body or committee concerned accordingly.
(7)If there are reasonable grounds for the Vice Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action, as he thinks necessary, and shall at the earliest opportunity, report in writing the grounds for his belief ::: Downloaded on - 09/06/2013 18:56:31 ::: 53 AGK wp1645.11.odt that there was an emergency, and the action taken by him, to such authority or body as would, in the ordinary course, have dealt with the matter. In the event of a difference arising between the Vice Chancellor and authority or body whether there was in fact an emergency, or on the action taken (where such action does not affect any person in the service of the University), or on both, the matter shall be referred to the Chancellor whose decision shall be final:
Provided that, where any such action taken by the Vice Chancellor affects any person in the service of the university, such person shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, appeal to the management Council.
(8)Where any matter is required to be regulated by the Statutes, Ordinances or Regulations, but no Statutes, Ordinances or Regulations are made in that behalf the Vice-Chancellor may, for the time being, regulate matter by issuing such directions as he thinks necessary, and shall, at the earliest opportunity thereafter, place them before the Managements Council or other authority of body concerned for approval. He may, at the same time, place before such authority or body for consideration the draft of the Statutes, Ordinances or Regulations, as the case may be, required to be made in that behalf.::: Downloaded on - 09/06/2013 18:56:31 ::: 54
AGK wp1645.11.odt (9)The Vice Chancellor shall be the appointing and disciplinary authority for the university teachers who are appointed on the recommendation of the selection committee constituted for the said purpose. (10)The Vice Chancellor shall be the [appointing and disciplinary authority] for officers of the university of the rank of Assistant Registrar and of the rank equivalent thereto and above.
(11)As the Chairman of the authorities or bodies or committee of the university the Vice Chancellor shall be empowered to suspend a member from the meeting of the authority, body or committee for persisting to obstruct or stall the proceedings or for indulging in behavior unbecoming of a member, and shall report the matter accordingly, to the Chancellor.
(12)The Vice Chancellor shall place before the Management Council a report of the work of the university periodically as provided under the Ordinances.
(13)The Vice Chancellor shall exercise such other powers and perform such other duties as may be conferred upon him by or under the Act.
(14)(a) The Vice Chancellor shall have the right to cause an inspection to be made by such person or persons or body of persons as he any direct, of the university, its buildings, laboratories, libraries, museums, workshops and equipments and of any institutions, affiliated, ::: Downloaded on - 09/06/2013 18:56:31 ::: 55 AGK wp1645.11.odt conducted or autonomous college, hall or hostel maintained or recognised by the university, and of the examinations, teachings and other work conducted by or on behalf of the university, and to cause an inquiry to be made in a like manner regarding any matter connected with the administration or finance of the university, affiliated college or recognised institutions:
Provided that, the Vice Chancellor shall, in the case of affiliated college or recognised institution, give notice to the management of such affiliated college or recognised institution of his intention to cause an inspection or an inquiry to be so made:
Provided further that, the management shall have right to make such representation to the Vice Chancellor as it thinks necessary before such inspection or inquiry is made;
(b) after considering such representation, if any made, the Vice Chancellor may cause such inspection or inquiry to be made or may drop the same;
(c) in the case of management when an inspection or inquiry has been caused to be made, the management shall be entitled to appoint a representative, who shall have the right to be present and be heard at such inspection or inquiry;::: Downloaded on - 09/06/2013 18:56:31 ::: 56
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(d) the Vice Chancellor may, if the inspection or
inquiry is made regarding any college or institution admitted to the privileges of the university, communicate to the management the result of such inspection or inquiry;
(e) the management shall communicate to the Vice Chancellor such action, if any, as it proposes to take or has been taken by it;
(f) where the management, does not, within time fixed by the Vice Chancellor, take action to his satisfaction, the Vice Chancellor shall place before the Management Council the inspection or inquiry report and explanation furnished or representation made by the management, for its consideration."
47} A perusal of the same would reveal that the Vice Chancellor has been conferred powers which are coupled with a duty. It has been specified in sub-section 1 itself that the Vice Chancellor shall be the principal academic and executive officer of the university responsible for the development of academic programmes of the university. He shall oversee and monitor the ::: Downloaded on - 09/06/2013 18:56:31 ::: 57 AGK wp1645.11.odt administration of the academic programmes and general administration of the university to ensure efficiency and good order of the university. Sub-section 5 enjoins the Vice Chancellor to ensure that the directives of the State Government, if any, and the provisions of the Act, Statutes, Ordinances and Regulations are strictly observed and that the decisions of the authorities, bodies and committees, which are not inconsistent with the Act, Statutes, Ordinances or Regulations, are properly implemented. There are several powers and when all the sub-sections of section 14 are read together and harmoniously, it would be apparent that the Vice Chancellor has very wide powers and advisedly. By Maharashtra Act No.55 of 2000, sub-section 9 has been added which states that the Vice Chancellor shall be the appointing and disciplinary authority for the university teachers who are appointed on the recommendation of the selection committee constituted for the said purpose. Thus, the reliance by Mr.Gordey, learned senior counsel, on the judgment of the Hon'ble the Supreme Court in the case of Marathwada University (supra), is appropriate. The Hon'ble Supreme Court observed as under:
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"18 The Vice-Chancellor in every university is thus the
conscious (conscience) keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers on the Vice-Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned [Section 11(3)]. The Vice-Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University [Section 11(6)(a)]. He has also emergency powers to deal with any untoward situation [Section 11(4)]. The power conferred under section 11(4) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the implied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non- academic affairs. In a wide variety of situations in the ::: Downloaded on - 09/06/2013 18:56:31 ::: 59 AGK wp1645.11.odt relationship of tutor and pupil. He has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and all emergency powers to deal with all such situations."
48} Thus, it goes without saying that once he is the principal officer and incharge of academic and executive affairs of the University so also the overseeing and monitoring authority, then, it is futile to urge that he does not possess such powers as are ancillary or incidental to those which have been enumerated hereinabove.
49} The later provisions of the Act provide for other officers of the University and a reading thereof would disclose that the Vice Chancellor supervises the working of these officers as well.
50} Chapter IV of the Act outlines the Authorities of the University and it would not be necessary to refer to them, save and except, the section 37, which provides for Board of Studies. The Board of Studies shall consist of head of the University department or institution in the relevant subject and comprises of one teacher and eminent persons and the powers and duties of the Board of ::: Downloaded on - 09/06/2013 18:56:32 ::: 60 AGK wp1645.11.odt Studies are enumerated by section 38. On the own showing of the petitioner he has been part of the Board of Studies. Section 44 makes it clear that any person who has been convicted of any offence involving moral turpitude shall be disqualified for being a member of any of the authorities of University.
51} Chapter V is entitled "The Statutes, Ordinances and Regulation". Thereunder, section 51 states that subject to the provisions of the Act, the Statutes may provide for any of the matters and one of them being qualifications, recruitment, workload, code of conduct, terms of office, duties and conditions of service, including periodic assessment of teachers, officers and other employees of the university and the affiliated colleges, provision of pension, gratuity and provident fund, the manner of termination of their services, as approved by the State Government. The Statute may also provide for disciplinary action. The manner in which the Statutes are made is set out by section 52, whereas section 53 deals with ordinances and their subject matter. Section 54 provides for making of ordinance and thereafter there are Regulations and Rules which can be framed under section 55. Rest of the provisions of the ::: Downloaded on - 09/06/2013 18:56:32 ::: 61 AGK wp1645.11.odt M.U.Act need not be referred to for our purpose.
52} Read and understood in the above manner it would become at once clear that in order to make a complete code, the legislature has inserted all the provision. They would enable it to enact a comprehensive legislation dealing with non agricultural and non technical universities in the State of Maharashtra. The Act deals with not only the authorities of the university but teachers and students as well. If an illustration has to be given, by section 79, the composition of Committees not only for selection of officers and employees of university but principals, teachers and other employees of affiliated colleges has been provided. The Vice Chancellor has a definite role to play in selection and appointment of teachers and other employees of the affiliated colleges.
53} Even for affiliation, there are conditions prescribed under Chapter X, which is entitled "Permission, Affiliation and Recognition". The affiliated colleges have to comply with the directions and orders issued by the Chancellor and Vice Chancellor and other officers of the University in exercise of the powers ::: Downloaded on - 09/06/2013 18:56:32 ::: 62 AGK wp1645.11.odt conferred on them under the provisions of the M.U.Act, Statutes, Ordinances and Regulations. By section 90, the Vice Chancellor can cause any university department or institution to be inspected atleast once in every three years and he can appoint committees in that behalf.
54} Even Enrolment, Degrees and Convocation have been provided by Chapter XI and the say and the authority of the Vice Chancellor therein is apparent if one reads the provisions carefully.
55} In our view, therefore, it is not proper to read the Act and the Statutes in isolation. If the above referred sections of the Act which provide for objects of University, its powers and duties are read together and harmoniously with other provisions, it would be clear that the intent of setting up a University has to be fulfilled and achieved. If it has to be achieved, powers and duties have to be prescribed and the University must possess them so as to comply with the legislative mandate. The University is empowered to take decisions so as to arm and equip not only itself but affiliated colleges and with such infrastructure and expertise that the ::: Downloaded on - 09/06/2013 18:56:32 ::: 63 AGK wp1645.11.odt academic pursuit and excellence is attained. The standards and norms which have been laid down in academic interest and for academic purpose, have to be strictly adhered to and abided by all.
56} The learned counsel for the petitioner himself has invited our attention to the Statutes and particularly the Statute No.8 of 1979 which is for implementation of U.G.C revised pay scales for teachers working in the affiliated colleges. That itself states that appointment of teachers in colleges have to be made in accordance with the qualifications and subject to the terms and conditions of the service and discipline and duties prescribed by or under the Statute or Ordinance. The terms and conditions attached to the scales of pay vide Statute No.9, are those which are shown in Appendix-I to the directives. Appendix-I states that all appointments of teachers in college shall be made on merit and on the basis of all Indian Advertisement. The recommendations of the Selection Committee which has to be constituted for recruitment to the post of lecturer in the college have to be approved by the Vice Chancellor who has been empowered to reject the same after recording reasons. It is in this background that we are of the view that it ::: Downloaded on - 09/06/2013 18:56:32 ::: 64 AGK wp1645.11.odt would not be proper to hold that the Vice Chancellor has no powers to recall, withdraw or cancel the approval given by him based on which a teacher is appointed in the affiliated college. As pointed out by the Hon'ble Supreme Court, the Vice Chancellor possesses implied powers considering his position and status. If it is held that he becomes functus officio once the approval is granted that would defeat the purpose of conferring such sweeping powers as are referred above. That would make the Vice Chancellor's position vulnerable and he would have to wait for the affiliated college or institution to make the move for withdrawal and cancellation of the approval granted for appointment of the concerned teacher. In a given case and situation, the managements of such affiliated colleges may not move in the matter at all or may take a long route of disciplinary proceedings.
57} In the above situation, the Vice Chancellor would be in dilemma as a tainted teacher or employee would continue to avail of the benefits of the approval. Such a scenario would be detrimental to the academic and public interest. No University or college can afford a situation in which it is forced to accept falling ::: Downloaded on - 09/06/2013 18:56:32 ::: 65 AGK wp1645.11.odt standards and norms. If the role of the teacher is appreciated in a proper perspective, it would become at once clear that not only his learning, his expertise and experience have been given prominence and importance but his character also is placed in the forefront. A teacher having knowledge, learning, experience but no character, is unable to mould the students and shape their life and career. A teacher who is himself of a doubtful character and has a criminal background, can hardly be expected to fulfill the aim of educating his pupil and inculcating right values in him. Ultimately, a teacher is not expected to only teach the subject but also guide his pupils and students. If the teacher is convicted of an offence as serious as one punishable under section 417 of the Indian Penal Code, then, the above expectation from him can hardly be fulfilled in letter and spirit. Such a teacher cannot command expect to be respect from his associates, colleagues and students so also the staff of the University and affiliated college. If his activities are questionable, there is a slur on his reputation and his integrity is in doubt, then, allowing him to enjoy benefits and privileges of an approved teacher would make mockery of the entire enactment. It would mean that academic environment and atmosphere is permitted to be polluted by ::: Downloaded on - 09/06/2013 18:56:32 ::: 66 AGK wp1645.11.odt presence of teachers, who can hardly set an example for others.
Ultimately, the Vice Chancellor will be accused of failing in his duty if he takes no action in such matters. He cannot allow the affiliated college alone to deal with a convicted teacher. Such teachers roaming in the campus of the University and college pose a threat to all. A convicted teacher cannot be entrusted any academic and non academic work. If there are no morals in universities and colleges, then, their very existence will be questioned. All of us have an important stake in them as they make or mar future generations.
The Vice Chancellor cannot leave it to the college because a affiliated college and institution may have its own reasons in not taking any action or it may in a given case delay taking necessary action. There may be vested interest in not taking any action as well. If these circumstances, when standards and norms prescribed for teachers cannot be seen in a restricted and watertight compartment, then, all the more if they are not adhered to or flouted, the Vice Chancellor can certainly step in. We have no doubt that he can always step in if directed by the Chancellor to take corrective measures against the guilty teacher. It is not that disciplinary action and disciplinary proceeding is the only solution.
::: Downloaded on - 09/06/2013 18:56:32 ::: 67AGK wp1645.11.odt There are enough powers conferred in the University and the Vice Chancellor and one such power is to withdraw and cancel the approval given to the appointment of the errant teacher so that he does not enjoy the privileges and benefits of an approved teacher.
He does not get a chance or opportunity to be examiner in any University exam or represent the University otherwise in academic bodies and authorities. If the Vice Chancellor who has to play the main role in ensuring maintenance of academic standards, norms and discipline in the campus fails to act even after directed by the Chancellor, then, it would defeat the intent of the legislature in enacting a law of the present nature.
58} In our view, in the present case, the matter cannot be looked only from the point of view of presence of implied or inherent power in the Vice Chancellor to withdraw or cancel the approval granted to the appointment of the petitioner. The matter has to be looked at from a larger perspective as well. Once the Chancellor steps in and directs the University to take action in academic so also public interest and common good of the University, then, any restriction on the powers of the Vice Chancellor to deal ::: Downloaded on - 09/06/2013 18:56:32 ::: 68 AGK wp1645.11.odt with a particular case or situation would make his position worthless.
59} Mr.Kowli does not dispute that the Chancellor has powers to direct the Vice Chancellor to take the impugned action.
The petitioner does not dispute the authority of the Chancellor. It is apparent from reading of the M.U.Act that the Chancellor by virtue of his office is the Head of the University. He can in any matter, suo motu or otherwise, call for report or explanation or such information or record relating to such matter or any matter or affairs of the University and shall after considering such report or explanation or information or record, issue such directions thereupon as may be deemed fit in the interest of the University or students or larger interest of the public and his directions shall be final and shall be complied with by the University forthwith [see section 9(3)]. Once such is the sweep of the powers conferred by the M.U.Act on the Chancellor and his directions are binding on the University as also the Vice Chancellor, then, the impugned order passed by the Vice Chancellor cannot be faulted or set aside. That the Chancellor issued the directive vide of the letter dated 19th July ::: Downloaded on - 09/06/2013 18:56:32 ::: 69 AGK wp1645.11.odt 2010, after seeking necessary information, is clear and undisputed.
That Vice Chancellor was obliged to take action in terms of this directive, is also apparent from the tenor of the letter and the provisions of the M.U.Act. That independently the Vice Chancellor also could have taken action, is equally clear from the above enumeration by us. In such backdrop, we are of the view that the matter at hand must be looked at in this broad manner and wider perspective. So looked at, we cannot accept the argument of Mr.Kowli that the Vice Chancellor lacks power and could not have withdrawn or cancelled the approval of the petitioner even after his conviction by the trial Court and this Court. For all these reasons and when the matter is looked this way, then, the challenge to the impugned order must fail.
60} Even in matters of applicability of section 21 of the General Clauses Act, 1897 (Section 21 of the Bombay General Clauses Act, 1904 is reproduction of the provision) or the doctrine of implied power, the Hon'ble Supreme Court holds that the general power to issue a notification includes the power to rescind it and that has to be understood in the light of the subject matter, context ::: Downloaded on - 09/06/2013 18:56:32 ::: 70 AGK wp1645.11.odt and the effect of the relevant provisions of the Statute, under which the Notification or order is issued and the power is unavailable after an enforceable right has accrued under the Notification or Order.
Reliance is placed in this behalf on the decision of the Hon'ble Supreme Court in the case of State of Kerala vs. K.G.Madhavan and others reported in AIR 1989 Supreme Court 49 and H.C.Suman and others vs. Ministry Employees Co-operative House Building Society Ltd, New Delhi and others reported in AIR 1991 Supreme Court 2160. It is this principle, which has been pressed into service before us and it is contended firstly that the power to grant the approval is quasi judicial in nature. Secondly, once that power is exercised and the approval is granted, nothing more in terms of the Statute No.8 of 1979 can be done by the Vice Chancellor as his duty in terms of the same comes to an end. He cannot thereafter take recourse to that Statute any more. Thirdly, the approval once granted is final.
61} We are of the opinion that none of these contentions are sound in law. Firstly, we have referred to the M.U.Act and the statutes framed thereunder in great details in so far as the requirement to obtain the Vice Chancellor's approval is concerned.
::: Downloaded on - 09/06/2013 18:56:32 ::: 71AGK wp1645.11.odt That the Vice Chancellor approves the recommendations of the Selection Committee and that he has equally the authority to reject them but he has to record reasons therefor. Therefore, there is no question of the Vice Chancellor being duty bound to grant the approval. He has the right to reject the same but by recording reasons. This is not a dispute or a lis, which is required to be decided or adjudicated by the Vice Chancellor. The recommendations of the Selection Committee as a whole are placed before him. He may grant his approval to the recommendations.
That he may do by approving them in their entirety. He may reject of all them or some of the recommendations. In either case, it is only a matter of selection and such recommendations of the Selection Committee are placed before him. In the very scheme of things and considering Vice Chancellor's position, it cannot be urged that having approved the recommendations of the Selection Committee, the beneficiary of the approval is conferred a right of such nature, which would result in the approval to the recommendations of the Selection Committee and the appointment in pursuance thereof not capable of being disturbed even by the Chancellor or Vice Chancellor. If we bear in mind the role of a ::: Downloaded on - 09/06/2013 18:56:32 ::: 72 AGK wp1645.11.odt teacher and his place in the academic set up and equally the power of the Vice Chancellor under the M.U.Act, we cannot subscribe to the view that the approval to the recommendation and the appointment in pursuance thereof is beyond the reach of these high powered authorities.
62} By the very nature of the power that is conferred in these authorities, it is apparent that it is coupled with a duty, i.e to maintain discipline and order of highest nature in the academic field. If that is the obligation to the society as a whole that these authorities have to discharge, then, to hold that they will be powerless or that they do not possess any implied or incidental power to withdraw or cancel the approval, would make the M.U.Act unworkable and its provisions meaningless. In several cases of this nature, the Hon'ble Supreme Court has applied the doctrine and principle of implied power. That principle is founded on the premise that conferment of a statutory power would necessarily take within its import the authority to use all means to make it effective and meaningful (see AIR 1969 Supreme Court 430- Income Tax Officer, Cannanore vs. M.K. Mohammed Kunhi). The Hon'ble Supreme Court ::: Downloaded on - 09/06/2013 18:56:32 ::: 73 AGK wp1645.11.odt has observed thus:
".... It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol.1 at page 88, it has been stated:
"It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it."
Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p.350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindentur, sine quibus jurisdicto explicari non potuit". An instance is given based on Ex parte, Martin ::: Downloaded on - 09/06/2013 18:56:32 ::: 74 AGK wp1645.11.odt (1879) 4 QBD 212 at p.491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not enforced."
63} If that is the principle which can be applied and utilized in this case, then, we are of the view that the Vice Chancellor had power to withdraw or cancel the approval and particularly after directed by the Chancellor. Pertinently, Chancellor's power to direct, as held above, is not under dispute. If the Vice Chancellor is carrying out and implementing that direction, then, we are of the view that the contention of Mr.Kowli that there is a finality attached to the approval and it is incapable of being withdrawn or cancelled, is liable to be rejected.
64} One important aspect of this is, that the rule enacted in section 21 of the Bombay General Clauses Act, 1904 is merely a rule of construction and may be displaced by the provisions of the scheme and the object of any particular Statue if they indicate a contrary intention. Mr.Kowli has placed reliance in this behalf on the ::: Downloaded on - 09/06/2013 18:56:32 ::: 75 AGK wp1645.11.odt judgment of the Hon'ble Supreme Court in the case of State of Bihar vs. D.N.Ganguly and others reported in AIR 1958 Supreme Court 1018.
It is apparent from a reading of that judgment that the Industrial Dispute Act, 1947 does not confer any express power on the appropriate Government to cancel or supersede a reference made under section 10(1) of the Act. That conclusion was rendered by the Hon'ble Supreme Court by examining carefully the scheme of the Industrial Disputes Act, 1947, its object and all its relevant and material provisions. Therefore, this was a case of repugnancy to the application of the rule of construction carved out by section 21 of the General Clauses Act, 1897.
65} Equally, Mr.Kowli's reliance on the judgment of the Hon'ble Supreme Court in the case of Indian National Congress (I) vs. Institute of Social Welfare and others reported in (2002) 5 Supreme Court Cases 685, is misplaced. Therein the Hon'ble Supreme Court specifically concluded that when the power requires the authority to act judicially or quasi judicially by holding an enquiry before taking decision, then, even in the absence of any lis or context between the contesting party, section 21 of the General Clauses Act, 1897 cannot ::: Downloaded on - 09/06/2013 18:56:32 ::: 76 AGK wp1645.11.odt be invoked by that authority. Once again this decision was rendered on examination and scrutiny of the relevant and material provisions of the Statute under consideration, namely, Representation of the People Act, 1951, section 29 thereof and Election Symbols (Reservation and Allotment) Order, 1968. Therefore, the Supreme Court held that powers to order deregistration/cancellation of registration after enquiry by Election Commission cannot be exercised by taking recourse to section 21 of the General Clauses Act, 1897 and particularly where the statutory authority is required to act quasi judicially. The judgment in the case of H.C.Suman (supra) has been noted by us already. There, the issue was a substantive right being created in favour of persons who fulfill the qualification or membership under the amended bye-law. The rights cannot be taken away by subsequent order by recourse to a general power of rescindment available to the Government under the General Clauses Act, 1897. We are of the view that this judgment is distinguishable because as held above, no vested or substantive right to continue to enjoy the fruits of approval is available in this case.
66} Once the above view is taken, then, we are of the view
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that the Vice Chancellor in this case committed no error in withdrawing or cancelling the approval and merely because it was in force from 2001 till it was withdrawn and cancelled by the impugned order, does not mean that by sheer passage of time any right is accrued in favour of the petitioner.
67} Lastly, we must also note the reliance placed by Mr.Kowli on Division Bench judgment of this Court in the case of Jagannath Joshi (supra). Under consideration of the Division Bench, were the provisions of the North Maharashtra Universities Act, 1989. They were a little distinctly worded. Secondly, as rightly pointed out by Mr.Gordey, learned senior counsel appearing on behalf of the respondent Nos.1 and 3 that the approval granted in favour of the petitioner Jagannath was sought to be withdrawn by the Executive Council of the North Maharashtra University. In that case, the Vice Chancellor in exercise of his powers under the relevant Statute gave approval to the appointment of the petitioner as a Principal of the college run by respondent No.4 before the Division Bench.
Therefore, pertinently the Division Bench observed in para 29 that it is not the Vice Chancellor who passed the impugned order of ::: Downloaded on - 09/06/2013 18:56:32 ::: 78 AGK wp1645.11.odt withdrawal of approval but that order was passed by the Executive Council of the North Maharashtra University. The Executive Council did not have any such jurisdiction. It is in that context it was held that when the power to grant approval was exercised by the Vice Chancellor, power to revoke it could not have been exercised by the Executive Council. Mr.Kowli reads the observations in paras 29 to 32 in isolation. This judgment, therefore, cannot assist the petitioner in urging that if the power to grant approval is exercised by the Vice Chancellor, the Vice Chancellor is denuded of any power to withdraw or cancel the same. The observations of the Division Bench which have been relied upon, would have to be understood in the backdrop of the factual controversy and should not be read in isolation as attempted by Mr.Kowli. The ratio of this judgment must be understood considering the facts and circumstances before the Division Bench, as rightly urged by Mr.Gordey. There is no need to refer to any decision of the Hon'ble Supreme Court as the principle is too well settled that a judgment is an precedent for what it actually decides and not what flows from it or can be inferred from it. Further, the ratio of a case must always be deduced from the facts and questions posed for consideration.
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68} Therefore, we are of the view that the judgment in the
case of Jagannath Joshi (supra) was rendered in a distinct backdrop and it was also not construing a comprehensive and codified statute like the M.U.Act. Hence, this judgment does not advance the case of the petitioner any further.
69} Once the above view is taken, it is not necessary to refer to each of the judgments cited by Mr.Gordey, as they lay down the principal of implied power or applicability of section 21 of the General Clauses Act, 1897.
70} Now what remains for being dealt with is, the argument of Mr.Kowli that the Vice Chancellor acted maliciously and exhibited bias while withdrawing and cancelling the approval. In this behalf, a careful perusal of the petition would reveal that the petitioner was issued a show cause notice way back in March 2008 calling upon him to show cause as to why his approval should not be cancelled or withdrawn because of his conviction in the criminal case. When the show cause notice was issued, the present Vice Chancellor was not ::: Downloaded on - 09/06/2013 18:56:32 ::: 80 AGK wp1645.11.odt in office. Secondly, the petitioner himself approached the Chancellor seeking his intervention under section 108 of the M.U.Act upon receipt of the show cause notice and thereafter showing cause to the same. When the proceedings were pending before the University from 2008, the present incumbent was not in office. As far as the incumbent is concerned, a link is tried to be established between his appointment as a Vice Chancellor of respondent No.1 and filing of a Public Interest Litigation challenging that appointment. We are of the view that Mr.Gordey is right in his submission that the pleading of malice and bias is hopelessly vague. It does not give any details or particulars as to when the petitioner was approached and by whom, asking him to withdraw the Public Interest Litigation. Leave alone stating that such person approached him on behalf of the Vice Chancellor-respondent No.3, all that the petitioner alleges is that the Public Interest Litigation was filed and that was within the knowledge of the University and the Vice Chancellor and that is how the Vice Chancellor hastily passed the impugned order. Mr.Kowli went to the extent of arguing that the Vice Chancellor back dated his order. However, when the petitioner does not dispute that in the file there is a reference to the communication from the Chancellor's ::: Downloaded on - 09/06/2013 18:56:32 ::: 81 AGK wp1645.11.odt office dated 19th July 2010 and acting upon the same, the matter was deliberated and discussed within the University till December 2010 and ultimately the order that came to be passed in February 2011, that would go to show that it is not that the present Vice Chancellor who took up the issue immediately after assuming office or that when a Public Interest Litigation was filed, he hastily passed the impugned order. From a reading of the documents that have been produced, we are of the view that the conviction not being disputed, the proceedings and their pendency not being disputed, it would be too farfetched to assume that the Vice Chancellor came to know of filing of a Public Interest Litigation challenging his appointment and before even looking at the said Public Interest Litigation, he passed the impugned order. Pertinently, that Public Interest Litigation was to be listed on 28th February 2011 and the impugned order is dated 24th February 2011. That it was dispatched by the Dispatch Section of the University later or that it was received on 28th February 2011 or thereafter, is of no consequence because the allegation is not that it was communicated deliberately after the copy of Public Interest Litigation was served but that the impugned order is back dated. Even the back dating allegation is ::: Downloaded on - 09/06/2013 18:56:32 ::: 82 AGK wp1645.11.odt vague. In these circumstances, we are of the view that this is a false complaint by a person who is unable to uphold the high moral standards and values of a teacher. Once having failed to uphold these standards and attain the required qualities as a teacher, that the petitioner turns around and makes allegations against the University as also the respondent No.3. Therefore, we cannot accept the argument that the impugned order suffers from or is vitiated by malice and bias.
71} The petitioner's allegations of malice and accusing the Vice Chancellor of backdating the impugned order are baseless. The impugned order is dated 24.02.2011. If the calender for the month of February 2011 is taken into account, the order was passed on 24.02.2011 which was Thursday. 25.02.2011 was Friday and both 25th and 26th February, 2011 were holidays. The order was thus posted on 28.02.2011 and may be the same is received on that day itself. However, as to when the backdating took place and which days were working or non-working, are the vital particulars which are completely missing in the pleadings. There is no link established between the filing of Public Interest Litigation by the petitioner; its ::: Downloaded on - 09/06/2013 18:56:32 ::: 83 AGK wp1645.11.odt listing before this Court; its service on the Vice Chancellor and the University, with the dating of the impugned order. Therefore, some nexus or connection ought to have been established between the receipt of Public Interest Litigation by the University and the Vice Chancellor and then preparing the impugned order and backdating it, so as to be delivered on 28.02.2011. The petitioner has thus failed to substantiate his allegations of malice and bias.
72} The above contentions which we have noted, were the only raised before us. It is not necessary to go into any factual aspects because those are admitted and the petitioner does not urge that the conviction for the offence punishable under section 417 of the Indian Penal Code, is not reason enough for the Vice Chancellor to withdraw or cancel the approval. Therefore, on facts, his action is not disputed or challenged. Further, the impact of such conviction on the maintenance of standards and norms in academic bodies is also not a matter, which is in dispute. Therefore, the Vice Chancellor had enough material before him to withdraw or cancel the approval and his conclusion in that behalf cannot be said to be vitiated by any errors apparent on the face of the record nor can be it termed as ::: Downloaded on - 09/06/2013 18:56:32 ::: 84 AGK wp1645.11.odt perverse. In the result, the writ petition fails. Rule is discharged but without any order as to costs.
(M.T.JOSHI, J) (S.C.DHARMADHIKARI, J)
AGK
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