Meghalaya High Court
State Of Meghalaya vs Cmj Foundation on 12 June, 2017
Equivalent citations: AIR 2017 (NOC) 758 (MEG.)
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
WA No.14/2017
MC (WA) No.8/2017
State of Meghalaya v. CMJ Foundation
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
WA No.14 of 2017 MC (WA) No.8 of 2017 State of Meghalaya and another ..... Appellants
-Versus-
CMJ Foundation and others ..... Respondents
Date of Order: :: 12.06.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri HS Thangkhiew, Sr.Adv with Shri PN Nongbri, for the appellants Shri A Singh, for the respondents BY THE COURT: (per Hon'ble the Chief Justice) (Oral) Heard learned counsel for the parties and perused the material placed on record.
The respondents No.1 to 3 herein had preferred the writ petition [WP(C) No.177 of 2014] on being aggrieved by the proceedings taken up by the present appellants for winding up of CMJ University (respondent No.2) under Section 48 of the CMJ University Act, 2009 ['the Act of 2009']. By the impugned order dated 16.07.2015, the learned Single Judge has allowed the writ petition so filed by the contesting respondents and has annulled the entire action taken by the appellants for winding up the CMJ University and has quashed the order passed by the Government of Meghalaya on 31.03.2014 as also the show cause notices dated 12.11.2013 and 24.01.2014 but while leaving it open for the Government to take requisite steps in strict 2 WA No.14/2017 MC (WA) No.8/2017 State of Meghalaya v. CMJ Foundation compliance of the provisions of law. The learned Single Judge has concluded and directed as under:-
"29. For the foregoing discussions, this Court is of the considered view that there was non-compliance with or breach of the fundamental procedural requirements as provided under Section 48 of the said Act of 2009 as well as principles of natural justice and the concept of the obligation of the administrative authorities to act fairly in issuing the show cause notices dated 12.11.2013 and 24.01.2014 and passing the impugned order dated 31.03.2014 which would lead to many facets injustice. Thus, the impugned order dated 31.03.2014 and the show cause notices dated 11.12.2013 and 24.01.2014 are hereby quashed and set aside.
30. In the result, the State Govt. may take steps in strict compliance with the provisions of the CMJ University Act, 2009 (Act 4 of 2009), the Meghalaya Private Universities (Regulation of Establishment and Maintenance of Standards) Act, 2012 (Act No.8 of 2012), principles of natural justice and the concept of the obligation of the administrative authorities to act fairly in interest of justice from the stage where the Apex Court passed the said judgment and order dated 13.09.2013."
Aggrieved by the order so passed in WP (C) No.177 of 2014, the appellants in the Government of Meghalaya have preferred this intra- court appeal.
On perusal of the record, evident it is that the show cause notices aforesaid were issued to the contesting respondents pursuant to the order passed by the Hon'ble Supreme Court on 13.09.2013 in SLP (C) No.19617/2013. The background in which the said matter was before the Supreme Court had been that the CMJ University was established under the Act of 2009 but there had been irregularities imputed on the university and its functionaries wherefor, the office of the Governor of Meghalaya, in his capacity as Visitor of the University, issued the directions on 30.04.2013. The gist of such directions had been as under:-
"In view of the above, the Governor of Meghalaya, in his capacity as the Visitor of the CMJ University issues the following directions under the Section 13(3) (b) of the CMJ University Act 2009 for immediate compliance.3 WA No.14/2017 MC (WA) No.8/2017
State of Meghalaya v. CMJ Foundation
1. The CMJ University shall recall/withdraw all the degrees awarded so far and publish this fact in national and local newspapers at their own cost.
2. The CMJ Foundation shall submit a fresh proposal for appointment of the Chancellor along with the correct Bio-data of the candidate recommended and supporting documents.
3. The CMJ University shall frame rules and procedures for admission into the M.Phil and Ph.D degree programmes, allocation of supervisor, course work, evaluation, assessment and other related matters in accordance with the UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D degree) Regulation, 2009.
4. No fresh admission of students shall be undertaken by the CMJ University till compliance of the above instructions and till the appointment of the Chancellor in accordance with Section 14 (1) of the CMJ University Act 2009.
You are hereby required to comply with the above directives and submit a compliance report to the Visitor by 21st May, 2013."
The challenge to the aforesaid directions by way of writ petition [No.106 of 2013] failed on 16.05.2013, when a learned Single Judge of this Court declined to interfere. Even the appeal taken to the Division Bench, being WA No.16 of 2013, was also dismissed on 31.05.2013. Thereafter, the Hon'ble Governor, in his capacity as Visitor, issued comprehensive recommendations qua the respondent-University on 12.06.2013. The final recommendations were to the effect that the CMJ University was required to be wound up in terms of Section 48 of the Act of 2009. The findings and the recommendations of the Visitor-cum- Governor had been as follows:-
"6. On the basis of facts and circumstances available it is concluded that the University committed the following grave irregularities:
(i) The University functioned from 17/10/2010 with the self-appointed Chancellor without the approval of the Visitor in terms of Section 14 (1) of the CMJ University Act, 2009 on the presumption of "deemed approval" of the Visitor. This is not legally valid and the position has been affirmed by the order dated 16th May, 2013 of the Hon'ble High Court of Meghalaya which has further been upheld by the Division Bench of the Hon'ble High Court of Meghalaya in their order dated 31 st May, 2013.
(ii) It awarded B.Ed degree through Distance Mode without the requisite approval of the regulatory bodies and without affiliation. The B.Ed degrees awarded by the CMJ University were held to be invalid in the 4 WA No.14/2017 MC (WA) No.8/2017 State of Meghalaya v. CMJ Foundation eye of Law by the order dated 24th May, 2013 of the Hon'ble High Court of Gauhati.
(iii) The Shillong Engineering and Management College was de-
affiliated by NEHU from academic session 2011-2012. This College, which was in existence prior to the sanction for establishment of the CMJ University, cannot be affiliated with the CMJ University. While the fate of the students of this College was already uncertain in view of the said de-affiliation, the College continued to make admissions by misleading the students that the degrees will be issued by the CMJ University.
(iv) The University had reported that during 2012-2013 it had awarded PhD degrees to 434 students and enrolled another 490 students. These figures though extraordinarily high do not reflect the correct position. Information is available with us that another 29 students have also received PhD degree from the University and more information is coming on a daily basis. So it is obvious that the actual number of award of and enrolment for, PhD and other programs will be much higher than was reported. The University awarded PhD even in subjects like the Bodo and Punjabi languages where the guides/faculty are not easily available. These constitute gross abuse of the university's power and violation of the UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D Degree) Regulation, 2009.
(v) The University furnished a list of 10 faculty members with PhD which is inaccurate. One of the faculty members is only a research scholar at NEHU. The list includes the Vice-Chancellor, Registrar and other functionaries of the University as faculty which is quite misleading. In fact the University does not have adequate teachers to introduce courses which it had been doing.
(vi) The University is running several off campus centres outside Meghalaya which is not permissible under the UGC (Establishment of and Maintenance of Standards of Private University) Regulations, 2003 and the decision of the Hon'ble Supreme Court (2005) in the case of Prof. Yashpal & Anr. Versus State of Chhattisgarh & Ors.
(vii) It is offering distance education programme outside the boundaries of Meghalaya and outside India. These actions are in gross violation of UGC Regulations and guidelines.
(viii) Total students enrolled by CMJ University as per information submitted by the University in 2010-11: 176, 2011-12: 469, 2012-13:
2734. All these admissions are illegal as all its actions are db initio void in absence of a legally appointed Chancellor.
(ix) The University has violated Section 45 (3) and Section 46 (4) of the CMJ University Act, 2009 by not submitting the Annual Report and the Annual Accounts/Balance Sheet and the Audit Report to Visitor.
(x) Even after the initiation of actions by the Visitor the University continued to mislead the students and public by press statements. It issued a news paper advertisement in the Shillong Times on 22nd April, 2013 claiming it has not yet awarded any PhD degree to any of the students enrolled from the State of Assam which is false. Again it issued advertisement in newspaper on 2nd May and 16th May, 2013 in matters of holding Convocation and Award of PhD Degree knowing full well that there can be no Convocation without the legally appointed 5 WA No.14/2017 MC (WA) No.8/2017 State of Meghalaya v. CMJ Foundation Chancellor and that the admissions of the courses and award of the degrees were illegal.
(xi) The University has violated Section 41(1) of the CMJ University Act relating to establishment of Endowment Fund and indulged in cheating by withdrawing the deposit of Rs.210 lakhs within days of making the deposit.
(xii) The University repeatedly acted in contravention of Section 52 of the CMJ University Act 2009 in respect of maintenance of standards and other related matters applicable to private universities.
7. All these established facts clearly indicate mismanagement, mai- administration, indiscipline and failure in the accomplishment of the objectives of the University, apart from criminal liability. In the interest of maintaining proper standards of higher education it would be desirable that the CMJ University be wound up. The state government is accordingly being addressed to consider Dissolution of the CMJ University in terms of Section 48 of the CMJ University Act, 2009." In the order dated 13.09.2013, the Hon'ble Supreme Court took note of the aforesaid recommendations issued by the Visitor-cum- Governor and observed that ends of justice would be served by directing the State Government to take appropriate action under Section 48 of the Act of 2009 after giving reasonable opportunity of hearing to the petitioners i.e., the CMJ University and its functionaries. The Hon'ble Supreme Court also left it open for the students, whose admissions and degrees were declared illegal, to make representation to the State Government and to seek an opportunity of hearing while observing that the request made by them would be sympathetically considered by the State Government. The Hon'ble Supreme Court observed and directed as under:-
"In terms of the recommendations made by the Visitor-cum-Governor, the State Government is required to take action under Section 48 of the 2009 Act. Shri Ranjan Mukherjee, learned counsel appearing for the Government of Meghalaya says that he is not in a position to make a statement whether the State Government has taken action in furtherance of the recommendations made by the Visitor-cum- Governor.
In view of the above, we feel that ends of justice will be served by directing the State Government to take an appropriate action under Section 48 of the 2009 Act after giving notice and reasonable opportunity of hearing to the petitioners.6 WA No.14/2017 MC (WA) No.8/2017
State of Meghalaya v. CMJ Foundation The special leave petitions are accordingly disposed of with a direction that within three months from today the State Government shall, after giving an opportunity to the petitioners to show cause against the action proposed to be taken, pass a speaking order under Section 48 of the 2009 Act.
The students whose admissions and degrees were declared illegal may also make representation to the State Government and seek an opportunity of hearing from it. The request made by them shall be sympathetically considered by the State Government."
Pursuant to the aforesaid directions of the Hon'ble Supreme Court, the State Government issued notices to the contesting respondents on 12.11.2013 and 24.01.2014. The contesting respondents submitted their reply/responses and ultimately, the State Government passed the impugned order dated 31.03.2014 to the effect that the respondent-University was required to be wound up. The aforesaid notices and final order were challenged in the writ petition leading to this appeal. In the impugned order dated 16.07.2015, the learned Single Judge addressed to a few of the contentious issues indicated by the writ petitioners and then, referred to the requirements of fair play and reasonableness on the part of the State authorities; and thereafter, concluded that there had been non-compliance of the procedural requirements of Section 48 of the Act of 2009 as also of the principles of natural justice and hence, allowed the writ petition with the directions as noticed at the outset.
In challenge to the impugned order dated 16.07.2015 it is, inter alia, contended that the appellants had taken the action pursuant to the directions of the Hon'ble Supreme Court and in accord with Section 48 of the Act of 2009; and the impugned order was passed only after giving a fair opportunity of hearing to the contesting respondents and for the reason that several aspects relating to mismanagement and maladministration as indicated in the directions of the Visitor-cum- 7 WA No.14/2017 MC (WA) No.8/2017
State of Meghalaya v. CMJ Foundation Governor remained un-rectified. It is also submitted that there had been categorical findings in the earlier round of litigation by this Court against the contesting respondents and on the substance of the matter, the questionable conduct of the functionaries of the respondent- University, as indicated in the final findings and recommendations of the Governor-cum-Visitor, leave nothing to doubt that the only appropriate course open for the Government was to wind up the respondent-University.
Per contra, it is contended on behalf of the contesting respondents that pursuant to the directions of the Hon'ble Supreme Court, the appellants were required to proceed strictly in accordance with the Act of 2009; and per Section 48 (2) thereof, it was fundamentally required that the contesting respondents were afforded an opportunity to rectify but the appellants had taken up the proceedings in a pre-determined manner and without issuing appropriate directions to the management and without giving a chance of rectify, straight away the order was passed for winding up. According to the respondents, the process as adopted by the appellants remains impermissible and has rightly been interfered with by the learned Single Judge.
Section 48 of the Act of 2009, whereunder the action impugned has been taken, reads as under:-
"48. (1) If the Sponsor proposes dissolution of the University in accordance with the law governing its constitution or incorporation, it shall give at least 3 months notice in writing to the State Government. (2) On identification of mismanagement, mal-administration, in-
discipline, failure in the accomplishment of the objectives of University and economic hardships in the management systems of University, the State Government would issue directions to the Management system of the University. If the directions are not followed within such time as may be prescribed, the right to take decision for winding up of the University would vest in the State Government.
8WA No.14/2017 MC (WA) No.8/2017
State of Meghalaya v. CMJ Foundation (3) The manner of winding up of the University would be such as may be prescribed by the State Government in this behalf. Provided that no such action will be initiated without affording a reasonable opportunity to show cause to the Sponsor.
(4) On Receipt of the notice referred to in Sub-section (1), the State Government shall, in consultation with the AICTE, UGC or other regulatory bodies make such arrangements for administration of the University from the proposed date of dissolution of the University by the Sponsor and until the last batch of students in regular courses of studies of the University complete their courses of studies in such manner as may be prescribed by the Statutes."
Though it is sought to be contended on behalf of the contesting respondents that per sub-section (2) of Section 48 ibid., the appellants ought to have given them an opportunity to rectify the shortcomings and mistakes and that such an opportunity was not extended but the background aspects make it clear that the Visitor-cum-Governor had in fact, earlier served notices on the contesting respondents and after their reply, concluded that action was required to be taken for winding up the University and, accordingly, made the recommendations dated 12.06.2013. Significantly, before such recommendations of the Visitor- cum-Governor, the notices served on the contesting respondents were unsuccessfully challenged in this Court and the Visitor issued such recommendations during pendency of the petition for Special Leave to Appeal before the Supreme Court. The Hon'ble Supreme Court took note of such recommendations of the Visitor and did not disapprove the same but left it open for the State Government to proceed in accordance with Section 48 of the Act of 2009. Thereafter, the State Government issued notices dated 12.11.2013 and 24.01.2014; and passed the impugned order dated 31.03.2014 after due consideration of the responses/reply submitted on behalf of the contesting respondents.
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State of Meghalaya v. CMJ Foundation In the totality of circumstances of the case, prima facie, it is difficult to conclude that the State Government had proceeded in contravention of the principles of natural justice or had not complied with the requirements of the order of the Hon'ble Supreme Court as also the requirements of the statute.
There had been several questionable dealings of the contesting respondents, as indicated in the notices/recommendations/orders passed and issued against them. At this stage when the matter is being considered for admission purposes, we may only indicate by way of illustration that there had been a serious question as regards awarding of Ph.D. degrees by the contesting respondents without having adequate number of guides and appropriate infrastructure; and this aspect of the allegations did not meet with a cogent and convincing reply on behalf of the contesting respondents. During the course of consideration of this matter, when we again posed a query to the learned counsel for the contesting respondents as regards Ph.D. degrees awarded by the contesting respondents, the learned counsel has submitted on instructions that more than 400 Ph.D. degrees have in fact been awarded by the respondent-University.
The overall scenario seems to have not gone into appropriate consideration of the learned Single Judge in the impugned order. Thus, we are clearly of the view that the matter requires consideration in appeal.
Hence, admit.
The contesting respondents being represented, process need not be issued.
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State of Meghalaya v. CMJ Foundation Service on the proforma respondent No.4, the Visitor-cum- Governor, is dispensed with at this stage, subject to all just exceptions.
List this appeal for hearing in its turn.
Also heard learned counsel for the parties on the prayer for interim relief.
We have found a prima facie case worth consideration in this appeal on the contentions of the appellants. However, so far the prayer for interim relief is concerned, there are several relevant factors to be taken into account which include the nature of imputation against the respondents, consequences of the orders impugned, the time that has elapsed before this appeal was filed belatedly by the appellants and has been finally considered today for admission. In the totality of circumstances, we are of the view that further operation of the impugned order as passed by the learned Single Judge needs to be put in abeyance but with necessary directions in balance of equities and for safeguarding the interest of bona fide students.
In the circumstances, it is considered appropriate and hence directed that:
(a) It shall be required of the respondent-University to specifically notify the students that this appeal has been admitted for consideration and ultimately, the admissions in, and award of degrees by, the respondent-University shall remain subject to the final judgment to be passed in this appeal. The contesting respondents shall ensure that all the students are notified within two weeks from today.
(b) Further, the contesting respondents shall not admit any other student nor shall engage any other persons in the University administration and status quo in relation to the setup of the University 11 WA No.14/2017 MC (WA) No.8/2017 State of Meghalaya v. CMJ Foundation as also admissions, as existing today, shall be maintained by all the concerned.
(c) The students at present undergoing their courses with the respondent-University may, if so chosen by them, continue with the respondent-University but in case, any student makes a representation to the Government, the same shall be sympathetically considered in the light of the order passed by the Apex Court as reproduced hereinabove.
(d) The representation, if any pending with the State Government shall also be taken up for consideration and appropriate decision shall be taken on such representations expeditiously while keeping in view the fact that it is the responsibility of the Government to ensure that no prejudice is caused to any bona fide student because of this litigation.
(e) Subject to and with the requirements foregoing, the operation and effect of the order impugned dated 16.07.2015 as passed in WP (C) No.177 of 2014 shall remain in abeyance until final disposal of the appeal.
MC (WA) No.8 of 2017 stands disposed of accordingly.
JUDGE CHIEF JUSTICE Lam Item No.2