COMMITTEE OF MANAGEMENT & ANR. v. VICE CHANCELLOR & ORS

Citation: [2008] 17 S.C.R. 774

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

COMMITTEE OF MANAGEMENT & ANR. v. VICE CHANCELLOR & ORS.pdf

Judgment text

[2008) 15 S. C. R. 774 - COMMITTEE OF MANAGEMENT & ANR. v. ' VICE CHANCELLOR & ORS. (Civil Appeal No. 7319 of 2008) ' ,·. ~ DECEMBER 16, 2008 8 [S. 8. SINHA AND CYRIAC JOSEPH, JJ. ] U. P. State Universities Act, 1973: ss. 68, 35(2) - Reference' to Chancellor - Proposal regarding removal of principal . :.... Non-approval of, by Vice.. 1Chancellor since decision of removal not as per s. 35(2) - Writ petition - Dismissal of, on the ground of existence of alternative remedy uls. 68 - On appeal, held: Chancellor of University has been conferred a wide power but being a statutory authority, it cannot consider validity' of a statute - Power ofjudicial review 0 has been conferred only in superior courts - High C_ourt should not refuse to exercise its jurisdiction on the ground of availability of alternative remedy - It may exercise its writ jurisdiction despite the fact that alternative remedy is available,, where same would not be an efficacious one ..... Thus, order of High Court set aside.

Respondent No. 3 is the Principal of the College run by the appellants. T~ere were allegations of misconduct against him. Disciplinary enquiry was held and he was placed under suspension. Respondent no. 1-Vice- Chancellor of the University was informed. Respondent no. 3 was issued charge sheet but he did not file any reply. ,~ Enquiry, Committee submitted a Report that respondent no. 3 was prima fac. ie guilty of committing various acts of misconduct. Thereafter, respondent no. 1 was issued notice. He was given fresh opportunity to cross examine the witness. Respondent No. 1-Vice Chancellor- stayed the suspension order. Thereafter, resolution was passed to remove respondent no. 3 from service. Respondent :).. no. 1 did not approve the proposal of Managing ,.. ,. CHANCELLOR & ORS. Committee in regard to removal of respondent no. 3 as it was not as per the provisions of s. 35(2) of the U. P. Universities Act, 1973, thus, was liable to be struck down. Respondent no.

1 also directed that respondent no. 3 be retired as per law since he has attained the age of superannuation. Appellant filed Writ Petition. High Court dismissed the same on the ground of alternative remedy available to the appellant. Hence the present appeal. Allowing the appeal, the Court HELD: 1. 1. The Chancellor of the University has been conferred a wide power. Howsoever wide the power niay be, the Chancellor, in terms of the provisions of the U. P. State Universities Act, 1973 being a creature of the statute itself cannot consider the validity thereof. Constitutionality of a statute, keeping in view the fact that the power of judicial review has been conferred by the 0 Constitution of India only in superior courts of the country, cannot be determined by any other authority howsoever high it may be.

The Chancellor, in terms of the said provision, may consider a matter relating to decision of any authority or officer of the University as to whether the same is in conformity with the Act or the Statute or the ordinance made thereunder. Prima facie. the Chancellor is not supposed to consider an intricate question of law involving interpretation of the Statute visa-vis the jurisdictional fact of an authority. The matter might have been different if the Chancellor was required , "'-.. to go into only the factual aspect of the matter. [Paras 16 and 17) (784-E-H; 785-A] Management Committee, Atarra Post Graduate College v. Vice Chancellor, Bundelkhand University, Jhansi & Anr. (1990) Supp. SCC 773, Referred to. 1. 2. It is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction.

It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts -shall not refuse to exercise their jurisdiction although there exists an alternative remedy. [Paras' 20 and 21] [786-A-C] 1. 3. Whether in a case of this nature such a power has properly been exercised or not being an intricate question should ordinarily fall for determination by the High Court itself. Keeping in view the legal questions arising in the matter, it was not a fit case where the High Court should have refused to exercise its discretionary jurisdiction to entertain the writ application. Thus, the impugned order c'annot be sustained and is set aside. [Paras 24, 25 and 26] [789-E; 790-D-E] Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors.

(1998) 8 SCC 1; Guruvayoor Devaswom Managing Committee & Anr. v. C. K. Rajan & Ors. (2003) 7 SCC 546; Manvendra Misra (Dr. ) v. Gorakhpur University, Gorakhpur &. Ors. (2000) 1 UPLBEC 702; Frank Anthony Public School Employees' Association v. Union of India & Ors. (1986) 4 SCC 707; Mrs. Y. Thec/amma v. Union of India & Ors. (1987) 2 SCC 516; Christian Medical College Hospital Employees' Union & Anr. etc. v. Christian Medical College Ve/lore Association & Ors. etc. (1987) 4 SCC 691; Yunus Ali Sha v. Mohamed Abdul Ka/am & Ors. (1999) 3 SCC 676; )I Committee of Management, St. John Inter College v. Girdhari Singh & Ors. (2001) 4 SCC 296 and Secy. , Malankara Syrian Catholic College v. T. Jose &Ors. (2007) 1 SCC 386 and P. A. /namdf3r & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537, Referred to. Case Law Reference: (1990) Supp.

sec 773 Referred to Para 18 (1998) 8 sec 1 Referred to Para 21 (2003) 1 sec 546 Referred to Para 21 (2000) 1 UPLBEC 702 Referred to Para 22 CHANCELLOR & ORS. (1986) 4 sec 101 ·Referred to Para 23 """"'! ""* (1987) 2 sec 516 Referred to Para 23 ( (1987) 4 sec 691 Referred to Para 23 J (1999) a sec 676 Referred to Para 23 """ (2001) 4 sec 296 Referred to Para 23 (2007) 1 sec 386 Referred to Para 23 (2005) s sec 537 Referred to Para 24 I '\ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1 7319 of 2008. From the Judgment and final Order dated 21. 08. 2006 of the High Court of Judicature at Allahabad Lucknow Bench, Lucknow in Writ Petition No. 1119(S/B) of 2006. Anoop G. Choudhari, June Choudhari, Shakil Ahmed Syed, Mohd. Monis Abbasi and Prabhat Kumar Rai for the Appellants. ===\ R. G. Padia, C. D. Singh, Sunny Chowdhary, Vairagya "-),I- Vardhana Dubey, Aditya Singh, Upasana Nath, Anish Dayal, Anitha Sheno, B. B. Singh, Siddhartha Vaid and Sanjay Pandey for the Respondents.

The Judgment of the Court was delivered by S. B. SINHA, J. 1. Leave granted. terms of the provisions of the Act being a creature of the statute itself cannot consider the validity thereof. Constitutionality of a ). -statute, keeping in view the fact that the power of judicial review has been conferred by the Constitution of India only in superior courts of the country,. cannot be determined by any other t" ~ authority howsoever high it may be. t- ' 17. The Chancellor, in terms of the said provision, may ,. consider a matter relating to a decision of any authority or officer of the University as to whether the same is in conformity "r· with the Act or the Statute or the ordinance made thereunder. . 1 Prima facie, the Chancellor is not supposed to consider an ' COMMITTEE bF MANAGEMENT & ANR. v. VICE 785 intricate question of law involving interpretation of the Statute vis-a-vis the jurisdictional fact of an authority.

The matter might have been different if the Chancellor was required to go into only the factual aspect of the matter. Appellants, apart from questioning the validity of the Act and/or the Statute also allege commission of jurisdictional error on the part of the Vice Chancellor in implementing the provisions of a Statute. 18. Dr. Padia placed strong reliance upon a decision of this Court in the case of Management Committee, Atarra Post Graduate College v. Vice Chancellor, Bundelkhand University, Jhansi & Anr. 1990 (Supp. ) SCC 773 to contend that the power of the Chancellor is wide in nature. In that case, the question ; which arose for consideration was as to whether the Vice Chancellor had properly appreciated the circumstances of the case or whether his decision was totally perverse and passed in ignorance of the mass of evidence of the Committee of 0 Management as also several witnesses examined before him regarding the conduct of the meetings.

It was in the aforementioned situation, this Court observed: I ' ".... In our opinion it is not for this Court to appraise the factual circumstances and come to a conclusion whether the order of the Vice Chancellor is correct or not, particularly when it is open to the aggrieved party, under Section 68 of the U. P. State University Act, to have a reference made to the Chancellor of the University who has ample powers to decide whether any decision taken by any authority or officer is in conformity with the statutes and ordinances of the University. In view of this provision it is open to the Committee of Management to make reference to the Chancellor to decide the issue regarding the validity of the termination of the services of Dr. Gaur and of the order of the Vice Chancellor. .... " 19. This Court, therefore, having regard to the factual matrix obtaining therein, refused to exercise its discretionary jurisdiction. · 20. Apart from the fact that a statutory authority cannot .

- consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a . ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise I their jurisdiction although there exists an alternative remedy. In . ( this context, it i_s appropriate to refer to the observations made ( by this Court in the case of Whirlpool Corporation v. Registrar . ~ of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : "15.....

But the alternative remedy has been consistently held by this Court not to ·operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged..... " [See also Guruvayoor Devaswom Managing Committee j & Anr. v. C. K. Rajan & Ors. (2003) 7 SCC 546] 1 In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, bes. ides other points noUced by us hereinbefore. 22. Dr. Padia relied upon a Division Bench decision of the Allahabad High Court in the case of Manvendra Misra (Dr. ) v. Gorakhpur University, Gorakhpur & Ors. (2000) 1 UPLBEC 702 wherein Hon'ble Katju, J.

(as His Lordship then was), speaking for a Division Bench of the said Court, opined that refusal to entertain ·a writ application on the ground of existence of an alternative remedy is entirely a matter of discretion though, of course, the discretion should not be exercised arbitrarily. It was held: CHANCELLOR & ORS. [S. S. SINHA, J. ] ".... Since writ jurisdiction is discretionary jurisdiction hence if there is an alternative remedy the petitioner should ordinarily be relegated to his alternative remedy. This is specially necessary now because of the heavy arrears in the High Court and this Court can no longer afford the luxury of entertaining writ petitions even when there is an alternative remedy in existence. No doubt alternative remedy is not an absolute bar, but ordinarily a writ petition should not be entertained if there is an alternative remedy. " [Emphasis supplied] 23.

Thus, even therein no legal principle has been laid down that in all situations, the High Court would refuse to exercise its discretionary jurisdiction only on the ground that an alternative remedy is available. We may notice that Dr. Padia himself, in his usual fairness, has brought to our notice several o decisions which upheld the validity of the regulatory power on the part of the University or affiliating bodies in the matter of order of dismissal, removal or suspension of an employee, viz. , Frank Anthony Public School Employees' Association v. Union of India & Ors. (1986) 4 SCC 707; Mrs. Y. Thec/amma v. Union of India & Ors. (1987) 2 SCC 516 and Christian Medical College Hospital Employees' Union & Anr. etc. v. Christian Medical College Ve/lore Association & Ors. etc. (1987) 4 sec 691, on the one hand, and the decisions opining that such a wide power cannot be conferred on a university, institution and minority institution being Yunus Ali Sha v. Mohamed Abdul Ka/am & Ors.

(1999) 3 SCC 676 and Committee of Management, St. John Inter College v. Girdhari Singh & Qrs. (2001) 4 SCC 296. Our attention has also been drawn to a recent decision of this Court in the case of Secy. , Malankara Syrian Catholic College v. T. Jose & Ors. (2007) 1 sec 386 wherein it was held : "19. The general principles relating to establishment ¢ind administration of educational institution by minorities, may 'y I be summarized thus : - ""*:- (i) ......... lo (ii) ......... 't- ~ ( (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is r' efficient and sound. so as to serve the academic needs of the institution.

Regulations made by the State concerning g'enerally the welfare of students ~ and teachers, regulations laying down eligibility ' criteria . and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of ~... ; study fall under this category. Sucl'l regulations do not in any manner interfere with the right under Article 30(1 ). (iv) ......... (v) ......... 20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions )providing secular education or professional education should necessarily have standards comparable with nonminority educational institutions.

Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and r , . decent living standards. That is why the State can regulate ..... the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the serviGe .... conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff. 21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as ~ clarified and crystallized in T. M. A. Pai Foundation v. State ofKamataka (2002) 8 SCC 481.

The State can prescribe: (i) ......... (ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff, '· (111) . •....... ",.. ("IV) .. •... •.. It 1. 1irli~- - 24. Whether in a case of this nature such a power has properly been exercised or not, in our opinion, being an intricate question should ordinarily fall for determination by the High Court itself. Our attention has also been drawn to a decision of a Seven-Judge Bench of this court in the case of P. A. lnamdar & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537 wherein it has been held : "126. The observations in para 68 of the majority ... ,- opinion in T. M. A. Pai Foundation v. State of Kamataka (2002) 8 sec 481 on which the learned counsel for the parties have been much at variance in their submissions, according. to us, are not to be read disjointly from other parts of the main judgment.

A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the ,,.. State. Reading relevant parts of the judgment on which ... , learned counsel have made comments and countercomments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in para 68 mer:ely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or ·r> adopting selection based on common entrance test of the State.

There are also observations saying th~t they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the ·educational needs of the weaker and poorer sections of ,~ the society. " 25. Keeping in view the legal questions arising in the matter, we are of the opinion that it was not a fit case where the High Court should have refused to exercise its discretionary jurisdiction to entertain the writ application. 26. For the aforementioned reasons, the impugned order ·cannot be sustained and is set aside accordingly. The appeal is allowed accordingly. The High Court is requested to consider ' the matter on merits. No costs. \ N. J. Appeal allowed. r