Allahabad High Court
Committee Of Management, S.M. College ... vs State Of U.P. And Anr. Etc. on 22 December, 2004
Equivalent citations: AIR2005ALL126, 2005(1)ESC598, AIR 2005 ALLAHABAD 126, 2005 ALL. L. J. 1283 (2005) 1 ESC 598, (2005) 1 ESC 598
Author: Arun Tandon
Bench: Arun Tandon
ORDER Arun Tandon, J.
1. Heard Sri P. S. Baghel, Advocate, Sri Ramendra Asthana Advocate, Sri Irshad Ali, Advocate and Sri Dinesh Mishra, Advocate on behalf of the petitioners, Sri Sudhir Agarwal Additional Advocate General on behalf of State of Uttar Pradesh and Sri Govind Saran, Advocate on behalf of M.J.P. Rohilkhand University, Bareilly, in all the aforesaid writ petitions.
2. At the very outset this Court records its satisfaction for the valuable assistance rendered in the matter by Sri Gajendra Pratap Singh, Advocate, as Amicus curiae.
3. All these writ petitions have been filed by the management/principal of various degree colleges affiliated to M.J.P. Rohilkhand University, Bareilly for the following reliefs :
(a) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to compel the petitioners to hold the students union election for the academic Sessions 2004-05 and onwards.
(b) Issue a writ order or direction in the nature of mandamus directing Clause (v) of the Ordinance of the University as illegal and ultra vires in view of the judgment of this Court dated 30-9-2003 in Writ Petition No. 43465 of 2003 (reported in 2003 (53) All LR 351).
4. The facts giving rise to the present petitions file in a very narrow compass. The Committee of Management/Principal of Degree Colleges affiliated to the University are aggrieved by the insistence of the respondents, including the State authorities, to get the elections of the office-bearers of the students union conducted in affiliated degree colleges under the Ordinances enforced by the M.J.P. Rohilkhand University, Bareilly with effect from 15-9-2003. The said Ordinances have been framed by the University in compliance of the Government orders dated 1-9-2003 and 8-9-2003.
5. A short counter-affidavit has been filed on behalf of M.J.P. Rohilkhand University. On behalf of the State Government it has been stated that there is no dispute with regard to the facts and question of law is involved and, therefore, the writ petition may be decided on the basis of the pleadings already on record before this Court.
6. From the pleadings and the contentions raised by the respective parties the following issues arise for determination in the present case :--
(a) Whether constitution of students, union and provision for the election of its office-bearers in all affiliated degree colleges is part and parcel of the academic curriculum.?
(b) Whether the State Government in exercise of powers under Section 66-A of the State Universities Act can issue directions requiring the University to frame Ordinance to provide for constitution of students union and election of its office-bearers?
(c) Whether the University under the State Universities Act has competence to frame Ordinances so as to provide for election of the students union in affiliated degree colleges?
(d) Whether the Ordinances framed by the M.J.P. Rohilkhand University enforced with effect from 15-9-2003 in fact provide for constitution of the students union and election of its office-bearers?
Issue (a)
7. For the purposes of deciding this issue it would be relevant to take note of the following facts :--
Article 41 of the Constitution of India provides that the State shall, within the limits of economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment old age, sickness and disablement, and in other cases of undeserved want. Therefore, the States are enjoined upon to take necessary action by legislation or otherwise so as to make the right of education available to every eligible person and to that extent the statutory right to education stands equal to fundamental right. The legal position in that regard has been clarified by the Hon'ble Supreme Court in the case of Miss Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 and in the case of Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178 wherein the Hon'ble Supreme Court has specifically declared that the right to education is a fundamental right and part and parcel of Articles 19 and 21 of the Constitution of India. It has been held that right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless the citizen is educated and further right to education flows directly from the right to life. The dignity of an individual cannot be assured unless it is accompanied by the right to education.
8. The education to be imparted by the University is not confined to development of mind only. It also means development of over all personality of the student so as to become a useful member of the society. The education equally has social elements. Education to prepare the individual to participate in the democratic process which is the very life of the nation and training of the students in democratic process is achieved partly through the students unions.
9. The importance of the students union was considered by the Kothari committee constituted under the resolution of the Government of India dated 14-7-1964 the Chairman whereof was Prof. D. S. Kothari, the then Chairman of the University Grants Commission, formerly Professor and Head of Department of Physics in Delhi University. The Kothari Committee which comprised of various legal luminaries made its recommendation through its report submitted in the year 1986 for all round development of education and in paras 11.73 and 11.74 of the report it was recommended as follows :--
"11.73. Students Unions -- Student unions represent an important way of providing student participation in University life outside the class room. Properly organized, they help in self-Government and self-discipline, provide a healthy outlet for students' energies and give the students useful training in the use of democratic methods.
11.74. It is for each University to decide how its students' union will function and we would welcome a good deal of experimentation. But some broad principles can be indicated.
(1) Membership of the student unions should be automatic in the sense that every student should be presumed to be its member. But every student should be expected to choose at least one activity organised in the institution, e.g. arts society, football club, drama association, etc., and pay the required subscription. There should be no separate payment for the membership of the students' union as such. Each of the activities will thus have funds of its own and these would be handled by appropriate Committees. The funds of the central union to the extent they are needed -- would be formed by contributions from each activity Committee. The University or college should also give aid to the central union as well as to the different activities.
(2) It may be desirable to elect the office-bearers, not directly by the large body of students (many of whom are fresh men), but indirectly by the different students' societies in the university who would send selected representatives to the union executive.
(3) There should be some disqualifications for office-bearers. For instance, persons who have spent two or more years in the same class should be disqualified.
(4) The successful working of student unions depends to a large extent upon the mutual trust and confidence between the teachers and the students. Greater teacher involvement in union activities should therefore, be ensured. We would strongly commend the establishment of a university or college union in which all teachers and students automatically become members. All committees of the union and various activity groups should have teachers on them and it should be their responsibility to guide the students tactfully on right lines without curbing their freedom to decide for themselves."
10. From the aforesaid report of the Kothari Committee it is apparent that useful training in the democratic methods was held to be an integral part of all round education through participation in the activities of the students union.
11. For the purposes of securing the means of complete education the Uttar Pradesh State Universities Act, 1973 has been framed by the State Legislature. For all round education, self Governance self discipline and participation in the University life outside the class room formation of union is but necessary. It has not been disputed nor it has been in fact questioned by the petitioner that in order to achieve development of over all personality of the student for his ultimate development as a useful member of the society education cannot be confined to knowledge and studies which is imparted in the class rooms and therefore participation of the students in the college life outside the class rooms must be permitted to properly organize in self governance and self discipline. Students union provide healthy outlet for students' energies and gives training for development of democratic method. Having recognized the students union to be a part and parcel of over all education of the students it is yet to be seen as to whether holding of students union's elections is also a necessary part of the aforesaid complete education. As has already been recommended by the Kothari Committee referred to above it is not necessary that the office bearers of the students union be elected directly by the process of single non transferable vote. Representation of the students can be done indirectly by different student societies of the universities. It is worthwhile to notice that the Hon'ble Supreme Court in the judgment reported in (2000) 10 SCC 648 (University of Delhi v. Anand Vardhan Chandal) has specifically held that right to education does not include in its ambit the right to contest the union elections. It has been held that right to participate in the University elections is only a statutory right. For ready reference the relevant, para 4 of the aforesaid judgment is reproduced below :--
"We are of the view that the High Court fell into patent error in holding that once the University admits a student, the right to contest the students union elections is part of the right to education and as such is a fundamental right. This Court in N.P. Ponnuswamy v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 : 1952 SCR 218 (SCR at page 236) has authoritatively held that, right to participate in elections to the State Assemblies and Parliament is not a fundamental right. It is only a statutory right. Participation in the students's union activities including elections cannot be placed on a higher pedestal."
12. It is thus established beyond doubt that right to contest the elections of the students union has not been held to be a part and parcel of right to education. In such circumstances the provision for students union for the purposes of participation of the students in the activities of the college cannot be extended to include within its ambit the right to elect the office bearers through election or a right to insist upon the institution (Degree College) to hold election of the office bearers of the students union. Reference may be had to the judgment reported in AIR 1988 Madh Pra 90 (Sanjay Jain v. The State of Madhya Pradesh). wherein a Division Bench of M.P. High Court has specifically held the right of the Principals of the Colleges and Vice Chancellors of the Universities to appoint office bearers of the students union to be legal and valid and such a provision does not violate any of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. Similarly this Court in the judgment reported in 1993 UPLBEC 1663 (Anand Pradhan v. Vice Chancellor, B.H.U., Varanasi) has held that right to from an association and to be elected as office bearer of such association are distinct rights. It has specifically been held that an association which comes into existence under certain statutory provision, the members of such association cannot claim any right which is not conferred upon them by the statute. It would be worthwhile to reproduce para 18 of the aforesaid judgment which reads as follows :--
"18. The right to form association and the right, to be elected to an office of such association are distinct rights. As association which comes into existence under the Constitution, the members of such association cannot claim any right which is not conferred upon them under Constitution. The constitution of Students Union itself empowers every student of the Union to become member of the Union. Their rights are not affected to form association. They have not been deprived of any right to form association as provided under Article 19(1)(c) of the Constitution of India. The right to form association, however, does not confer any right on students to be elected as office bearers of the Union. Their right to be elected as office bearers is governed by the Constitution of the Students Union. If an association is formed and it is governed by its Constitution which provides for the manner of election of office bearers or lays down the eligibility conditions for being elected to an office of the Union every member is bound by the said Constitution. The right is based on the election. There is no legal right in any person to claim eligibility to be elected as office bearer of an association. They are governed by the conditions and procedures prescribed for election in the Constitution."
13. To sum up the legal position in that regard, the right to elect or to be elected is neither a fundamental right nor a common law right. It is simply a statutory right. Outside the statute there is no right to elect to or to be elected and no right to dispute the election. From the aforesaid legal position it cannot be disputed that to form a students union may be a part and parcel of the complete education to be imparted by the University and therefore a part of its curriculum. However, right to get the elections of the office bearers of the Students Union held is not a part of the said right to education.
14. Counsel for the parties agree that power to provide for discipline among the students includes a power to provide for constitution of the Students Union as 'discipline' is not to be interpreted in a narrow, on the contrary it is to be given widest possible interpretation so as to include every aspect which would affect the educational life of the students. There being no dispute between the parties about a power with the authority concerned to provide for Students Union under the power to regulate the discipline among the students, the issue is being decided with reference to the aforesaid admitted position between the parties.
Issues (b) and (c) :--
15. For the purposes of deciding the said issues it would be relevant to refer to Section 66A of the State Universities Act, 1973 (hereinafter referred to as the Act) which is reproduced below :--
"66A. The State Government may issue such directions from time to time a University on policy matters, not inconsistent with the provisions of this Act as it may deem necessary. Such directions shall be complied with by the University."
16. From the language of Section 66-A it is apparently clear, that the State Government has been conferred a power to issue directions from time to time to a University on policy matters, hot inconstant with the provisions of the Act only. It is, therefore, to be seen as to whether the directions issued by the State Government under its orders dated 1-8-2002 and 8-8-2003 requiring the University to frame Ordinances for making provision for constitution of Students's Union in various degree colleges and for election of the office bearers of the Students Union, are in conformity with the provisions of the State Universities Act, 1973 or not inasmuch as any directions issued under Section 66-A of the Act must not be inconsistent with the provisions of the Act.
17. Power to frame Ordinances has been conferred upon the University under Section 51 of the Act which is reproduced below :--
"51. Ordinances. --(1) Subject to the provisions of this Act and the Statutes the Ordinances may provide for any matter which by this Act or the Statutes is to be or may be provided for by the Ordinances.
(2) Without prejudice to the generality of the provisions of Sub-section (1), the Ordinance shall provide for the following matters, namely --
(a) the admission of students to the University and their enrolment and continuance as such;
(b) the courses of study to be laid down for all degrees, diplomas and other academic distinctions of the University;
(c) the conditions under which students shall be admitted to the examinations, degrees and diplomas of the University and shall be eligible for the award of such degrees and diplomas;
(d) the conditions of the award of scholarships, fellowship, studentship, bursaries, medals and prizes;
(e) the conditions of residents of students at the University and the management of halls and hostels maintained by the University;
(f) the recognition and management of halls and hostels not maintained by the University;
(g) the maintenance of discipline among the students of the University;
(h) all matters relating to correspondence courses and private candidates;
(i) the formation of parent-teachers association;
(j) the fees which may be charged by the University or by an affiliated or associated college for any purpose;
(k) the conditions subject to which persons may be recognized as qualified to give instructions in halls and hostels;
(l) the conditions and mode of appointment and the duties of examining bodies, examiners, moderators, invigilators and tabulators;
(m) the conduct of examinationsts;
(n) the remuneration and allowances including travelling and daily allowances to be paid to persons employed on the business of the University;
(o) all other matters which by this Act or the Statutes are to be or may be provided for by the Ordinance.
18. For the purposes of the present case the provisions of Section 51(2) (g) and (o) are relevant. A reading of the aforesaid provisions establishes that the Legislature is aware that the students of the University and the students of affiliated degree colleges are different. Therefore, while providing for discipline of the students of the University under Section 51(2)(g) of the Act no provision has been made for regulating the discipline of the students of affiliated degree colleges. Therefore on a plain reading of Section 51 of the Act it would be apparent that no power has been conferred upon the University to frame any Ordinance regulating the discipline of the students of affiliated degree colleges. A bare, reading of Section 51(g) of the Act would establish beyond doubt that the University has been conferred with the power to frame ordinances for regulating the discipline of the students of the University only. Thus under Section 51(g) of the Act the University cannot frame any ordinance for the purposes of regulating the discipline of the students of affiliated degree colleges. As it agreed between the parties that the provision pertaining to constitution of Students' Union is part and parcel of over all discipline of the students, it is therefore, held that the University under Section 51(g) of the Act cannot frame any ordinance providing for constitution of Students' Union or election of office bearers of Students' Union of affiliated degree colleges. It can frame such ordinances only in respect of the students of the University only. Since the University itself cannot frame ordinance under Section 51(g) of the Act providing for constitution of Students Union in affiliated degree colleges as well as for election of office bearers of the Students' Union in affiliated degree colleges, ,any direction issued by the State Government under Section 66-A of the Act requiring the University to frame ordinance for constitution of Student's Union and election of its office bearers in affiliated degree colleges, on the face of it would be inconsistent with the provisions of the Act and, therefore is unsustainable.
19. At this stage the Additional Advocate General as well as the counsel appearing for the University have contended that it is the duty of the University under Section 7(15) of the Act to regulate and supervise the discipline of students of affiliated degree colleges. For ready reference the provisions of Section 7(15) and 7(17) of the Act are reproduced below :--
"7. Powers and duties of the University, -- The University shall have the following powers and duties, namely --
(15) to supervise and control the residence and to regulate the discipline of students of the University, the Institute and the constituent or affiliated or associated colleges and to make arrangements for promoting their health."
(16) ...........
"(17) to do all such acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University."
20. It is submitted by respondents that the State Government has competence to issue directions to the University in: respect of the constitution of the, Students'; Union and election of its office bearers as part and parcel of the duty and responsibility of the University to regulate and supervise the discipline of students of affiliated degree colleges. Such a direction of the State Government would not be inconsistent, or contrary to the provisions of the Act. The issue, however, remains as to how the University Can exercise its aforesaid duties and responsibilities; For the aforesaid purpose it would be relevant to refer to Section 49 and 53 of the Act, which are reproduced hereinbelow :--
"49. Statutes. -- Subject to the provisions of this Act, the Statutes may provide for any matter relating to the University and shall in particular, provide for --
(a) the constitution, power and duties of the authorities of the University;
(b) to (r) ................
(s) all other matters which may by this Act are to be or may be provided for by the Statutes."
"53. Regulations. -- (1) Subject to the provisions of this Act, the Statutes and the Ordinances, an authority or other body of the University may make Regulations --
(a) laying down the procedure to be followed at its meeting and the number of members required to form the quorum;
(b) providing for all matters which by this Act, the Statutes or the Ordinances are to be provided by the Regulations; and
(c) providing for any other matters solely concerning such authority or body and not provided for by this Act, the Statutes and the Ordinances.
(2) The Regulations made by any authority or other body of the University shall provide for the giving of notice to its members of the dates of meetings and the business to be transacted thereat and for the keeping of record of the proceedings of such meetings.
(3) The Executive Council may direct any authority or other body of the University other than the Court to cancel or to amend in such form as may be specified in the direction, any Regulation made by such authority or body and such authority or body shall thereupon cancel or amend the Regulation accordingly :
Provided that any authority or other body of the University, if is satisfied with any such direction may appeal to the Chancellor who may after obtaining the views of the Executive Council pass such orders as he thinks fit.
(4) The Academic Council may subject to the provisions of the Ordinances, make Regulations providing for the course of study for any examination, degree or diploma of the University only after the Board of Faculty concerned has proposed a draft of the same.
(5) The Academic Council shall not have power to amend or reject any draft proposed by the Board of Faculty under Sub-section (4), but may return it to the Board for further consideration together with its own suggestions."
21. Universities being a body, constituted under the statutory provisions of the U.P. State Universities Act, 1973 can act through its authorities and officers provided for under the Act itself and, therefore, powers and duties of the Universities in respect of discipline of students of affiliated/associated degree colleges as provided for under Section 7(15) as well as powers provided for under Section 7(17) of the U.P. State Universities Act, 1973 can be exercised only through the authorities and officers of the University and for the said purpose provisions may be made with reference to Section 49(a) and (c) of the Act by framing statutes only.
22. A joint reading of Section 49, 51 and 53 of the Act would further establish that powers and duties which are required to be discharged by the University can be provided by framing statutes under Section 49 of the Act. So far as the framing of the ordinances are concerned, the ordinances can be framed only in respect of the subject matters which are necessarily directed to be provided for framing ordinances by the Act or by the Statutes.
23. The aforesaid interpretation is supported by a reading of Section 53 of the Act pertaining to framing of Regulations inasmuch the subject for which regulations can be framed is dependent upon the provisions in that regard being provided for, as such, under the Act, Statute or Ordinances. Thus under the State Universities Act, 1973 there is a gradual and definite mode and manners of exercise of powers in respect of subjects which can be provided for by framing statutes, ordinances and regulations respectively. To be precise generally all the powers and duties which are required to be discharged by the University can be provided for by framing statutes. Ordinance can be framed only in respect of subject matters which are specifically specified under the Act or under the Statutes to be provided for by Ordinance. Similarly regulations can be framed only in respect of subjects which are provided for as such under, the Act, Statutes or the Ordinances.
24. In the opinion of the Court powers and duties of the University under Section 7(15) and 7(17) can only be exercised by framing necessary statutes and therefore the University cannot make provisions in respect of its powers and duties and responsibilities by framing ordinance under Section 51 of the Act. Neither under the Act nor under the statutes a provision has been made for framing of ordinances in that respect. Thus, State Government while issuing Orders dated 1-8-2003: and 8-9-2003 has acted contrary to the provisions: of the Act while requiring the University to frame ordinance providing for constitution of Students' Union and for election of its Office bearers. In such circumstances this Court has no hesitation to hold that the State Government cannot issue Government Order under Section 66-A of the Act directing the University to frame ordinance for constitution of Students' Union and for election of its office bearers so far as affiliated degree colleges are concerned.
25. In view of the aforesaid fact the Ordinance framed by the University enforced with effect from 15-9-1993 in so far as it provides for deposit of Students' Unions membership fee by the students of the affiliated degree colleges and for participation in the election of the office bearers of the Students Union in all affiliated degree colleges cannot be legally sustained.
Issue (e)
26. Although in view of the aforesaid finding it is not necessary to adjudicate upon issue (e) as the ordinance framed by the University cannot be applied in respect of the students of affiliated degree colleges yet since the aforesaid aspect has also been debated upon by the counsel, issue (e) is also being decided.
27. From the ordinances enforced with effect from 15-9-2003 the M.J.P. Rohilkhand University, Bareilly, which have been brought on record by the parties and which are not in dispute, it is apparently clear that the said ordinance do not provide for constitution of Students' Union in affiliated degree colleges. Further the aforesaid ordinances do not contemplate holding of elections of the office bearers of the Students Union of the affiliated degree colleges. A plain and simple reading of the aforesaid ordinances would show that the said ordinances take care of the Students' Union of the University and election of its office bearers only. For the aforesaid purpose reference may be had to the following provisions of the ordinance :--
(Vernacular matter omitted............ Ed.)
28. It has fairly been conceded on behalf of Advocate General that from the reading of the Ordinance so framed there appears to be no provision for constitution of Students' Union in affiliated degree colleges and further the use of the word egkfo|ky; or izkspk;Zin the said ordinance cannot by itself be read so as to suggest for constitution of a separate Students' Union in every affiliated degree college and for holding of election of office bearers of the Students' Union of each degree college separately. In view of the aforesaid position and the statement made on behalf of Advocate General and is also borne out from the reading of the Ordinance this Court has no hesitation to hold that the said Ordinance does not provide for constitution of the Students Union in affiliated degree colleges and for election of its office bearers. Since the said Ordinances do not contemplate or provide for constitution of the Students' Union in affiliated degree colleges the question of payment of any fee by the students in that respect also does not arise.
29. In the circumstances the petitioners are entitled to both the reliefs prayed for and this Court does issue a writ of mandamus directing the respondents not to insist upon the petitioner -- institutions (affiliated degree colleges) to hold elections of the Students' Union and further not to insist upon the petitioner institutions to get, the fee of Rs. 50/- deposited from the students, for membership of the Students' Union.
30. The writ petition is allowed.