Management & ANR Vs. Vice Chancellor & Ors  INSC 2171 (16
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7319 OF 2008 [Arising
out of SLP (C) No.16716 of 2006] Committee of Management & Anr. ...
Appellants Versus Vice Chancellor & Ors. ... Respondents
S.B. Sinha, J.
run a Muslim Minority Post Graduate College, commonly known as Mumtaz Post
Graduate College (for short, `the college') at Lucknow. It is affiliated with
the University of Lucknow (for short, `the University'). Third respondent,
viz., Dr. Mukhtar Nabi Khan was appointed as Principal of the said college. On
an allegation that a prima facie case had 2 been made out against the said
respondent of having committed various acts of misconduct, a preliminary
enquiry was held pursuant to a resolution adopted by the Managing Committee in
a meeting held on 02nd May 2003.
For the said purpose
a Committee of three senior members was constituted.
The said Committee
submitted its report on or about 30th May 2003.
upon consideration of the said report, by a resolution adopted in a meeting
held on 05th June 2003, took a decision to hold a proper disciplinary enquiry.
He was placed under suspension. Vice- Chancellor of the University was also
duly informed thereabout.
charge-sheet containing eight charges was issued against the respondent no.3.
He, however, did not file any show cause/reply thereto.
recording evidence of some witnesses, the Enquiry Committee submitted its
report on 03rd March 2004 opining that the respondent no.3 was prima facie
guilty of gross misconduct, dereliction of duty, causing wrongful gain to
himself and causing wrongful loss to the institution.
Relevant portion of
the report of the Enquiry Committee is quoted heretobelow :
"In view of the
aforesaid findings of the inquiry committee the charged employee can be said to
be guilty of misconduct, dereliction of duty, acting with malafide intentions
3 to obtain wrongful gain to himself and wrongful loss to the college and his
unbecoming conduct has resulted in great loss of goodwill and reputation to the
college and thus the college was being continuously mismanaged by him."
or about 17th May 2004, a copy of the said Enquiry Report was sent to the 3rd
respondent. He was also informed that a meeting of the Managing Committee would
be held on 01st June 2004 wherein the said report shall be considered.
Respondent no.3, pursuant to the said notice, appeared before the Managing
Committee on the said date. He availed the opportunity of being personally
heard. He also filed his written submissions.
a resolution adopted by the Managing Committee of the appellant- institution in
a meeting held on 05th June 2004, a decision was taken to issue a second show
cause notice to respondent no.3 pursuant whereto a notice was issued to him on
15th June 2004. He submitted his reply on 23rd June 2004, inter alia,
contending that he had not got an opportunity of cross- examining the
witnesses. A fresh opportunity was, therefore, granted to him. The Enquiry
Officer was also changed. A senior advocate of Lucknow Bench of Allahabad High
Court was appointed as the Enquiry Officer. Respondent no.3, however, made
allegations of bias against him 4 whereupon another Enquiry Officer, viz.,
Aftab Ahmad Siddiqui, Advocate was appointed. The said Enquiry Officer
submitted his report on 20th November 2005.
no.1, however, passed an order on 31st December 2005 staying the operation of
the order of suspension. On or about 04th February 2006, the Managing
Committee, upon hearing the respondent no.3 in person, passed a resolution that
he be removed from service. A report thereabout, as envisaged under the proviso
appended to sub-section (2) of Section 35 of the U.P. Universities Act, 1973
(for short, `the Act'), was sent to the 1st respondent. By reason of an order
dated 07th/12th July 2006, the Vice-chancellor refused to grant approval to the
proposal of the Managing Committee in regard to the removal of respondent no.3
"It is clear
from the decision of management committee of the College and related
records/papers that removal from service of Dr. M.N. Khan, Principal Mumtaz
Post Graduate Degree College, Lucknow is not in accordance with the procedures
established by the governing/managing body/college. The said decision of
removal from service of managing body of the college is not in accordance to
the provisions of 35(2) of 1st Statute of Lucknow University and is therefore,
liable to be struck down.
exercising of the power conferred under Section 35(2) of U.P. State University
Act 1973, to Vice 5 Chancellor in this context, the Managing Committee,
college is directed that Dr. M.N. Khan be allowed to work as Principal with all
benefits because decision of the managing body for removal from service is
ex-parte unsatisfactory and not as per law.
In the matter under
reference, since as per his representation dated 24.4.2006 Dr. M.N. Khan
Principal has attained the age of superannuation on 3.1.2006 the Managing
Committee of College is directed to consider and take steps for retirement of
Dr. M.N. Khan in accordance with rules."
the legality and/or validity of the said order, the appellants filed writ
petition before the High Court which, by reason of the impugned order, has been
dismissed, stating :
impugned order dated 7/12.7.2006 passed by the Vice Chancellor, Lucknow
University, Lucknow, the petitioner has an alternative and efficacious remedy
before the Chancellor under Section 68 of U.P. State Universities Act, 1973.
The record reveals that opposite party No.3, has already attained the age of
superannuation on 3.1.2006 and the academic session 2005-06 has also come to an
end on 30.6.2006.
dismiss the instant writ petition on the ground of alternative remedy available
to the petitioner. The Vice Chancellor, Lucknow University, Lucknow, shall not
insist for reinstatement of the opposite party No.3 in service as the opposite
party No.3, has already attained the age of 6 superannuation on 3.1.2006 and
the academic session 2005-06 has also come to an end on 30.6.2006."
are thus before us.
an order dated 12th November 2007, in view of the contention that the
appellants intended to question the constitutionality of sub-section (2) of
Section 35 of the Act as also the applicability of the University Statute in
the light of clause (1) of Article 30 of the Constitution of India, they were
permitted to raise additional grounds pursuant whereto additional grounds have
Anoop G. Choudhari, learned senior counsel appearing on behalf of the
appellants would urge :
i) Sub-section (2) of
Section 35 of the Act as also the proviso thereto is ultra vires clause (1) of
Article 30 of the Constitution of India.
ii) The High Court,
in a case of this nature, where the validity and/or interpretation of different
provisions of the Act vis-`-vis the validity of the order of the 1st respondent
dated 07th/12th July 2006 is required to be considered and/or the manner in
which the same had been passed, must be held to have committed a serious error
in 7 dismissing the writ petition on the ground of existence of alternative
iii) In a case of
this nature, Section 68 of the Act cannot be said to provide for any
efficacious remedy in the hands of the Chancellor and in that view of the
matter, the impugned order should be set aside.
R.G. Padia, learned senior counsel appearing on behalf of the 1st respondent on
the other hand would contend :
(i) The Statute
itself having provided for review of an order on the decision taken by the
Chancellor of the University subject of course to the law of limitation, must
be held to be an efficacious alternative remedy and in that view of the matter,
the impugned order should not be interfered with; and (ii) In view of the
proviso appended to sub-section (2) of Section 35 of the Act as only a
regulatory power has been conferred upon the Vice Chancellor and not a power to
grant prior approval as envisaged under the main provision, the said Statute
cannot be said to be ultra vires the provisions of the 8 Constitution of India
as such regulatory measures are permissible in law.
U.P. State Universities Act, 1973 was enacted with a view to toning up the
academic and financial administration of higher education in State of U.P. A
comprehensive Bill applicable to all the State Universities (except the Roorkee
University and Govind Ballabh Pant Agricultural University), was prepared in
the light of the recommendations made by various Commissions and Committees
appointed by the Government of India and the State Government and also the
views of the Vice-Chancellors and other educationists.
officers have been named in the Act to perform their respective functions as
conferred upon them either under the Act or the Statute. Section 35 of the Act,
inter alia, regulates the conditions of service of an employee in an
institution or a college affiliated to the University; sub-section (2) whereof
reads as under :
of service of teachers of affiliated or associated colleges other than those
maintained by Government or local authority.
9 (2) Every decision
of the Management of such college to dismiss or remove a teacher or to reduce
him in rank or to punish him in any other manner shall before it is
communicated to him, be reported to the Vice- Chancellor and shall not take
effect unless it has been approved by the Vice-Chancellor:
Provided that in the
case of colleges established and administered by a minority referred to in
clause (1) of Article 30 of the Constitution of India, the decision of the
management dismissing removing or reducing in rank or punishing in any other
manner any teacher shall not require the approval of the Vice-Chancellor, but,
shall be reported to him and unless he is satisfied that the procedure
prescribed in this behalf has been followed, the decision shall not be given
Section 68 of the Act
reads as under :
to the Chancellor.-If any question arises whether any person has been duly elected
or appointed as, or is entitled to be, member of any authority or other body of
the University, or whether any decision of any authority or officer of the
University (including any question as to the validity of a Statute, Ordinance
or Regulation, not being a Statute or Ordinance made or approved by the State
Government or by the Chancellor) is in conformity with this Act or the Statutes
or the Ordinance made thereunder, the matter shall be referred to the
Chancellor and the decision of the Chancellor thereon shall be final:
Provided that no
reference under this section shall be made- (a) more than three months after
the date when the question could been raised for the first time;
(b) by any person
other than an authority or officer of the University or a person aggrieved :
10 Provided further
that the Chancellor may in exceptional circumstances- (a) act suo motu or
entertain a reference after the expiry of the period mentioned in the preceding
(b) where the matter
referred relates to a dispute about the election, and the eligibility of the
person so elected is in doubt, pass such orders of stay as he thinks just and
(c) * * * * *"
Statute 17.06, which
is relevant for our purpose, is reproduced below :
order dismissing, removing or terminating the services of a teacher on any
ground mentioned in clause (1) or clause (2) of Statute 17.04 (except in the
case of a conviction for an offence involving moral turpitude or of abolition
of post) shall be passed unless a charge has been framed against the teacher
and communicated to him with a statement of the grounds on which it is proposed
to take action and he has been given adequate opportunity:- (i) of submitting a
written statement of his defence;
(ii) of being heard in
person, if he so chooses, and (iii) of calling and examining such witness in
his defence as he may wish;
Provided that the
Management or the officer authorized by it to conduct the inquiry may, for
sufficient reasons to be recorded in writing, refuse to call any witness.
(2) The management
may, at any time ordinarily within two months from the date of the Inquiry
Officer's report pass a resolution dismissing or removing the teacher concerned
from service, or terminating his services mentioning the grounds of such
dismissal, removal or termination.
11 (3) The
resolution shall forthwith be communicated to the teacher concerned and also be
reported to the Vice-Chancellor for approval and shall not be operative unless
so approved by the Vice-Chancellor.
(4) The Management
may, instead of dismissing, removing or terminating the services of the
teacher, pass a resolution inflicting a lesser punishment by reducing the pay
of the teacher for a specified period or by stopping increments of his salary
for a specified period, not exceeding three years and/or may deprive the
teacher of his pay during the period, if any, of his suspension. The resolution
by the Management inflicting such punishment shall be reported to the
Vice-Chancellor and shall be operative only when and to the extent approved by
of the University has been conferred a wide power.
Howsoever wide the
power may be, the Chancellor, in 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 authority
howsoever high it may be.
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 with the Act or the Statute or the ordinance made thereunder.
Prima facie, the Chancellor is not supposed to 12 consider an intricate
question of law involving interpretation of the Statute vis-`-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.
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
Management as also several witnesses examined before him regarding the conduct
of the meetings. It was in the aforementioned situation, this Court observed :
".... 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
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
13 conformity with the statutes and ordinances of the University.
In view of this
provision it is open to the Committee of Management to make a 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.
Court, therefore, having regard to the factual matrix obtaining therein,
refused to exercise its discretionary jurisdiction.
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
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. In this context, it is appropriate to refer to the 14 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
[See also Guruvayoor
Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC
546] 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, besides other points
noticed by us hereinbefore.
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 :
".... 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 15 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."
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 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. Theclamma v.
Union of India & Ors. (1987) 2 SCC 516 and Christian Medical College
Hospital Employees' Union & Anr. etc. v. Christian Medical College Vellore
Association & Ors. etc. (1987) 4 SCC 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 Kalam
& Ors. (1999) 3 SCC 676 16 and Committee of Management, St. John Inter
College v. Girdhari Singh & Ors. (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 SCC 386 wherein it was held
"19. The general
principles relating to establishment and administration of educational
institution by minorities may be summarized thus :
(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
efficient and sound, so as to serve the academic needs of the institution.
Regulations made by the State concerning generally 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. Such regulations do not in any manner interfere with the right under
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 17 have
standards comparable with non-minority 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
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 service 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 of Karnataka
(2002) 8 SCC 481. The State can prescribe :
(ii) the service
conditions of employees without interfering with the overall administrative
control by the management over the staff, (iii) .........
(iv) ... ...
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 18 case of P.A. Inamdar
& Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537 wherein it has
been held :
observations in para 68 of the majority opinion in T.M.A. Pai Foundation v.
State of Karnataka (2002) 8 SCC 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 counter-comments 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 merely
permit unaided private institutions to maintain merit as the criterion of
admission by voluntarily agreeing for seat-sharing with the State or adopting
selection based on common entrance test of the State. There are also
observations saying that 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."
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 19 refused to exercise
its discretionary jurisdiction to entertain the writ application.
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.