Full order of vpj BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Order Reserved on 01.04.2021 Order Delivered on 23.07.2021 CORAM THE HONOURABLE MR.JUSTICE V.PARTHIBAN W.P.(MD)No.16129 of 2016 and.
- BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Order Reserved on 01.04.2021
Order Delivered on 23.07.2021
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.(MD)No.16129 of 2016
W.M.P.(MD)Nos.11798 of 2016 & 21240 of 2018
M/s. Madurai Kamaraj University
Private College Management Association,
(S.No.143 of 2006)
Rep. by its General Secretary,
Nadar Mahajana Sangam,
S.Vellaichamy Nadar College,
Nagamalai,Madurai – 625 019 … Petitioner
The Madurai Kamaraj University
Rep. By its Registrar,
Palkalai Nagar, Madurai,
Madurai District – 625 021. … Respondent
Writ Petition filed under Article 226 of the Constitution of India praying Writ of Certiorari to call for the records relating to the impugned proceedings of the respondent University in Ref.No.CDC-1/Re.Affil.Fees/2016 dated 01.07.2016 and quash the same.
For Petitioner : Mr.V.Raghavachari,
for Mr.T.Cibi Chakraborthy
For Respondent : Mr.Sricharan Rangarajan,
Additional Advocate General
assisted by Mr.T.Sakthikumaran
O R D E R
The matter is taken up through web hearing.
The petitioner is an Association representing the interest of management of various private colleges affiliated to the respondent/University. The grievance as projected in the present writ petition is in regard to the issuance of a letter of the respondent University dated 01.07.2016 informing the association as to the fixation of renewal of affiliation fee for self finance courses conducted by the member colleges at Rs.10,000/- per year, per course. The colleges were advised to pay all the arrears of renewal of affiliation fee on or before 31.07.2016. The substance of the challenge in the writ petition is that while revising the affiliation fee, the respondent University has not followed the mandatory procedures contemplated in the Madurai Kamaraj University Act, 1965 (hereinafter referred to as ‘the Act’), the Statutes, Ordinances and the Regulations framed thereunder and hence, the revision suffered from patent illegality and liable to be interfered as being void.
- The facts and the circumstances which gave rise to the present challenge are stated hereunder.
- i) The member Colleges of the Association have been affiliated to the respondent University and their affiliation for many years has been continued without any disruption and in terms of their affiliation, courses have been conducted for many years successfully and the respondent has also been awarding the degrees all along to the students of those colleges.
- ii) According to the petitioner Association, the University, all of a sudden issued a letter dated 16.07.2014 first time citing a resolution of the University Syndicate and the Senate dated 06.03.2006 and 31.03.2006 respectively directing affiliated colleges to remit prescribed fee for renewal of affiliation for the courses permitted by the University. The letter further admonished that the affiliation would be cancelled on failure to pay the revised fee. Subsequently several reminders appeared to have been issued in that regard.
iii) In continuation of their various communications on the subject matter, the University, vide its proceedings dated 30.03.2016, directed the affiliated Colleges to pay the recognition/affiliation fee immediately and informed them that the hall tickets for April, 2016 examination would be sent only on receipt of the revised affiliation fee. The proceedings dated 30.03.2016 was challenged by the Association in W.P.(MD).No.7469 of 2016. After hearing the parties, this Court, on 18.04.2016, set side the impugned proceedings therein dated 30.03.2016 of the respondent and directed the University to convene a meeting with the members of the petitioner Association before the commencement of the next academic year 2016-17 on or before 31.05.2016 for facilitating an amicable settlement in the matter. The relevant portions of the direction of this Court are extracted hereunder.
“6. From the above letter, the apprehension of the petitioner that the interest of the students in taking up the examinations for this academic year will be affected is taken care of. As per the said letter, the respondent University would send the hall tickets to the students studying in various colleges under the petitioner association enabling them to appear for the semester examinations commencing from 21.04.2016 and also publish their results as per schedule.
- So far as the main issue is concerned, the learned counsel for the respondent University filed a typed set of papers enclosing the list of payment of affiliation fee by the affiliated colleges and the list of payment of renewal affiliation fee as on 01.03.2016 by the colleges which are in the membership of the petitioner association. Therefore, it is evident that the petitioner association itself is now divided as the few of the colleges made payment as demanded by the University and others are challenging the same. It is not in dispute that the Entrance fee, Recognition fee and Affiliation fee have to be paid by the colleges. Though in the impugned resolution dated 31.03.2006, it is specifically stated that after the completion of three years from the date of receipt of temporary affiliation, it is open to the institution to apply for permanent affiliation or confirmation affiliation, some of the colleges did not opt for the same and take permanent affiliation. Even the University also has not cared to effect the same forthwith. After ten years only, they have made a demand for payment of revised affiliation fee.
- In such situation of the matter, the impugned order dated 30.03.2016 is set aside and the petitioner association is permitted to resolve the matter with the University with respect to the revision of confirmation/affiliation fee. The University is also directed to convene a meeting with the members of the petitioner association at the earliest i.e. before the commencement of the next Academic year 2016-17. In the meanwhile, the colleges, those who have not remitted the amount demanded, are directed to pay the renewal affiliation fee in respect of the year 2015-16 on or before 30th April 2016. The meeting, as stated above, between the petitioner association and the University with respect to fixation of the confirmation/permanent affiliation fee has to be completed on or before 31st May, 2016. The fee already paid by the colleges, based on the impugned order, will be dealt with by the University appropriately.
- The writ petition stands disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.”
- iv) In compliance with the above directions of this Court in the said writ petition, a meeting was convened on 24.05.2016 and in the meeting, objections of the Association were called for. On 26.05.2016, on behalf of the Association, objections had been submitted to the University and according to the petitioner notwithstanding the legitimate objections raised on behalf of the member colleges, the University issued proceedings dated 01.07.2016 informing the Association of the renewal of Application fee for self finance courses as Rs.10,000/- per year, per course which is the subject matter of challenge in the present writ petition.
- v) In terms of the above directions of this Court, the renewal Application fee had also been paid by the Colleges for the year 2015-16.
- Mr.V.Raghavachari, learned counsel appearing for the petitioner Association at the outset would draw the attention of this Court to the management and administration of the affairs of the respondent University in terms of Madurai Kamaraj University Act, 1965, hereinafter referred to as the Act, which was enacted for creation of the respondent University . The laws of the University consist of the Act, Statutes, Ordinances and Regulations. The Scheme of the Act, envisage three governing bodies with defined roles and powers for the administration of the University, namely, the Senate, the Syndicate and the Academic Council. In the role/ power sharing arrangement among the bodies, the Senate has been classified and designated as Supreme Governing Body of the University affairs. In order to highlight the delineation of the powers vest in each of the three governing bodies, the learned counsel would draw the attention of this Court to various provisions of the Act as under.
- The learned counsel would straight away refer to Section 16 of the Act which describe that the Senate as the Supreme Governing Body vested with the power of superintendence over the other two bodies. Section 17 of the Act enumerate the extensive powers enjoined upon the Senate as being the Supreme Governing Body. The powers, inter alia included making of Statute, amending or repealing of the same and in particular Sub-Clause 17 of Section 17, the power to prescribe fee for the approval or affiliation of the Colleges etc. is provided for.
- According to the learned counsel, it is only the Senate being the supreme governing body in terms of the Act which is empowered to revise affiliation fee applicable to the Colleges affiliated to the University. In comparison, the learned counsel would refer to Section 20 of the Act which deals with the powers of the Syndicate. Section 20(1) confers powers on the Syndicate to make ordinances, regulating and determining administrative matters concerning the University in accordance with the Act, Statutes, Ordinance and Regulations. Thus, Syndicate has also been given wide powers under Section 20 of the Act. Although the Syndicate has a power to affiliate colleges within the University area to the University and to recognise colleges as approved colleges as per sub-clause 11 of Section 20, but as far as the subject matter of the present dispute is concerned, the Senate has the exclusive domain and the Syndicate has no role at all within the defined contours of powers as per the scheme of the Act.
- Learned counsel would also refer to section 25 of the Act wherein the powers of the academic council have been enumerated. The Academic Council in exercise of its powers can make regulations concerning all academic matters of the University. It can advice both the Senate and the Syndicate in academic matters and make regulations regarding courses of study, constitution of faculties etc. Although the Academic Council has no material role in the revision of the affiliation fee in terms of the Act, the reference to the Academic Council and its power was drawn to impress upon this Court that the scheme of the Act envisage separation of powers among the three governing bodies of the University.
- Learned counsel would proceed to refer Section 30 under Chapter-VI of the Act which specifically deals with Statutes. Section 30(c) specifically provides for conditions of recognition of approved colleges and affiliation to the University of affiliated colleges. Section 31 in the Chapter deals with Statutes how made. He would lay great emphasis on sub-clause 3 & 4 in order to highlight as to how the present revision of affiliation fee is unsustainable in terms of the scheme of the Act, Statute etc. Section 31 and its sub-clauses are extracted hereunder.
- Statutes, how made-
(1) The Senate may of its own motion take into consideration the draft of any statute:
Provided that in any such case before a statute is passed affecting the powers or duties of any officer or authority, the opinion of the Syndicate and a report form the person or authority concerned shall have been taken into consideration by the Senate.
(2) The Syndicate may propose to the Senate the draft of any statute. Such draft may be considered by the Senate at its next succeeding meeting. The Senate may approve such draft and pass the statute or may reject it or return it to the Syndicate for reconsideration either in whole or in part, together with any amendments which the Senate may suggest. After any draft so returned has been further considered by the Syndicate, together with any amendment suggested by the Senate, it shall be again presented to the Senate with the report of the Syndicate thereon, and the Senate may then deal with the draft in any manner it thinks fit.
(3) Where any statute has been passed by the Senate or a draft of a statute recommended by the Syndicate has been rejected by the Senate, it shall be submitted to the Chancellor who may refer the statute or draft back to the Senate for further consideration or in the case of a statute passed by the Senate assent thereto or withhold his assent. A statute passed by the Senate shall have no validity until it has been assented to by the Chancellor.
(4) The Syndicate shall not propose the draft of any statute or of amendment to a statute –
(a) affecting the status, powers or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal; any opinion so expressed shall be in writing and shall be considered by the Senate and shall be submitted to the chancellor; or
- b) affecting the conditions of affiliation or approval of affiliated or approved colleges with the University or by the University; as the case may be; or
(c) affecting the conditions of designation of any college as an autonomous college; except after consultation with the Academic Counsel;
- The learned counsel simultaneously referred to Section 32 which deals with Ordinances made by the Syndicate wherein no role is assigned to the Syndicate regarding prescription of affiliation fee or revision of affiliation fee at all. The competent body to grant approval or revise affiliation fee is only the Senate and such power is exclusively preserved for the Senate in terms of the Act and that has also been replicated in the Statutes framed by the Senate.
- He would refer to Chapter X which deals with the composition of the Senate, the term of office of the members, conduct of meetings etc. Here again, the power of the Senate is mentioned in terms of Sections 16 and 17 of the Act. Further, in terms of Chapter XVII dealing with Legislation namely, the laws of the University i.e., Statutes, Ordinances and Regulations, Sections 30 and 31 with all its sub-clauses are found thereto. According to the learned counsel, the Statutes are framed in terms of the provisions of the Act and as per which two important legal lacunae could be noticed in the impugned action of the University. Firstly, that the Syndicate is specifically precluded from proposing the draft of any statute or of amendment to a statute, inter-alia affecting the conditions of affiliation or approval of affiliated or approved colleges with the University or by the University. Secondly, a Statute passed by the Senate has no validity until it has been assented to by the Chancellor.
- With regard to the above requirements which are mandatory in nature, the learned counsel would draw the attention of this Court pointing out as to the commencement of the revision of affiliation fee, the subject matter of controversy herein. According to the learned counsel, as a matter of fact, initially the Syndicate passed a resolution on 06.03.2006 proposing/approving the revision of affiliation fee and thereafter, Senate held a meeting on 31.03.2006 and passed a resolution accepting the proposal/ approval. The learned counsel would submit when there is an explicit prohibition that the Syndicate cannot propose the draft of any statute or amendment affecting the conditions of affiliation, origination of the proposal, that too with approval from the Syndicate is in direct violation of Section 31(3)(4)(b) of the Act and the relevant Statutes framed thereunder. On this ground alone, the impugned action is liable to be struck down.
- Learned counsel would further submit that even if the Senate has passed a resolution validly, until it has been assented to by the Chancellor, no sanctity could be attached to the decision taken in the resolution. In this case, admittedly, the Chancellor’s assent has not been obtained. Therefore, directing the colleges to pay the revised affiliation fee is without the authority of law and cannot be enforced at all by the University, as on date.
- In regard to the requirement of assent by the Chancellor, the learned counsel would draw support of the earlier action of the University when affiliation fee was fixed in 1988 for various courses, wherein there was a mention of the fixation of affiliation fee being assented by the Chancellor on 03.06.1988. Learned counsel would therefore submit that by their own action, University had earlier obtained assent for fixation of affiliation fee in 1988 and hence, in the absence of assent by the Chancellor, the present amendment, namely, the revision of affiliation fee is non-est and unenforceable.
- Learned counsel would refer to Statute 24(a) wherein revised affiliation fee for various courses was fixed for the academic year 1988-89 as under.
(1) For affiliation or for approval in the Degree courses in Arts and Science and Oriental title. Rs.400/- per major subject Rs.250/- per Ancillary subject Certificate/ Diploma courses Rs.100/- per course (2) For affiliation in the Post -graduate courses in Arts and Science and Commerce Rs.1000/- per course (3)For affiliation in professional courses
Rs.1000/- per subject for each year of the Course (4) For affiliation in professional courses Rs.1500/- per subject for each year of the course
- The learned counsel would add that the above revision was in fact had been assented by the Chancellor as demonstrated above. If the above rates of affiliation fee are to be revised, the amended rates need to be inserted in the Statute which mandatorily required assent by the Chancellor. Without going through the said procedure, the impugned communication of the University or the earlier resolution passed in March 2006 would have no legal sanctity at all.
- Learned counsel would also raise objection as to the affiliation fee payable annually, as such condition is not envisaged at all either in the Act or in the Statute. In fact, he would particularly refer to Statute 28 which provides for affiliation or approval either on provisional basis for a particular period and on fulfilment of conditions, there shall be confirmation of the affiliation. There is no temporary affiliation contemplated in the Statute. Therefore, learned counsel would submit that the impugned action of the University cannot be countenanced both in law and on facts.
- Learned counsel would rely on the following decisions in support of his contentions.
(i) AIR 1954 Calcutta 141 (Tapendra Nath Roy v. University of Calcutta).
This Court’s attention has been drawn to paragraph 12 to 15 which are extracted herein.
- In my opinion, the Syndicate has no such power to modify or alter the provisions of Chapter XXXVI, Rule 6.
- I shall now proceed to investigate the powers of the Syndicate and try to find out whether it is possible for the Syndicate to vary or alter any of the regulations. The Senate has been constituted by the Act of Incorporation Act II of 1857 (III). The Indian Universities Act of 1904, lays down by Section 4(3) that the Body Corporate shall be the Senate of the University, and all powers conferred by the Act of incorporation or the Universities Act, upon the Chancellor, Rector, Vice-Chancellor and Fellows in their Corporate capacity were to be vested in and exercised by the Senate. The executive government of the University is vested in the Syndicate under Section 25(1), the Senate, with the sanction of the Government, may from time to time make regulations consistent with the Act of Incorporation as amended by the Universities Act, to provide for all matters relating to the University. One of the headings upon which it can make regulations relates to the appointment of Examiners, and the duties and powers of Examiners in relation to the Examinations of the University (26(2)(f)), and the courses of study to be followed and the conditions to be complied with by candidates for any University Examination, other than an Examination for Matriculation (26 (2) (n)). By virtue of these powers, the Senate has made regulations which have been sanctioned by Government. Under Ch. IV Rule 12 of the regulations, the Syndicate has been given powers to “…..generally conduct the affairs of the University in accordance with the Act of Incorporation and the Indian Universities Act, the Regulations, and the resolutions of the Senate and the Syndicate”. Under Rule 13, the Syndicate may from time to time recommend to the Senate such Regulations as may seem desirable.
- It is clear therefore that the Syndicate has no power to override or to vary or alter or to ignore a regulation passed by the Senate and sanctioned by Government. In purely executive matters, where there exist no clear regulations, it can by resolution deal with such matters. But such resolutions cannot override the regulations on a point completely covered by it. Under the Calcutta Universities Act 1951, also, the Senate has been declared to be the “Supreme governing body of the University”. The Syndicate is the administrative body. New rules governing the Senate and the Syndicate have not yet come into operation. So we are still concerned with the existing regulations.
- The regulations which are relevant for our purpose, have been mentioned above. Mr.Chaudhury has not challenged the validity of Rule 6 in Chapter XXXVI, but he argues that under Ch. XXV, Rule 8(vi), a power is granted to the Syndicate to lay down principles according to which the Board of Examiners are bound to modify the results. The Syndicate does not derive its power from this rule. This rule merely directs the Board of Examiners to modify results “in accordance with the principles contained in the Regulations or laid down by the Syndicate”. Mr.Chaudhury tried to make a distinction between a rule laid down in a regulation and the principles contained therein. I am unable to appreciate this distinction. The principles laid down governing a particular subject are to be gathered from the regulations themselves when such regulations exist. Rule 6 of Chapter XXXVI, lays down, a rule and also a principle. While the ‘General rules’ (see page 120) lay down the general rules as regards the marks required to pass a course, Rule 6 engrafts an exception. The rule as to the exception as well as the principles governing it, are to be found in the wordings of Rule 6, and the Syndicate cannot be permitted to vary or alter it or ignore it.
In the above decision Calcutta High Court has categorically held that under the statutory scheme of the University of Calcutta, the Syndicate has no power to override or to vary or alter or to ignore a resolution passed by the Senate. The Court has dealt with various provisions of the Statute and held so. In this case also, the Senate has been designated as the supreme governing body in terms of the scheme of the Act and as such the Syndicate cannot usurp the power of Senate by passing any resolution on the subjects which exclusively fall within the purview of the Senate. This is more so when there is a specific bar contemplated in the Act.
(ii) 1994 (5) SCC 479 (All Kerala Private College Teacher’s Association v. Nair Service Society and Ors).
Reference has been drawn to paragraph 8 of the judgment, which is extracted hereunder.
- We have given our thoughtful consideration to the rival contentions raised by the parties. We are inclined to agree with the contentions raised by the learned counsel for Respondent 1. The universities were incorporated and brought into existence on the date the two Acts were enforced, but the Senate and other bodies of the universities were yet to be constituted. The provisions of the two Acts are not exhaustive. The fields which are left to be covered by the statutes have been enumerated under Section 34 of the two Acts. The universities could not have started functioning unless there were statutes in existence immediately after the enforcement of the two Acts providing for the constitution of the Senate/other bodies of the universities and other regulatory provisions necessary for the functioning of the universities. To meet this eventuality, the Legislature has given ‘one-time’ power to the State Government to frame the “First Statute” under Section 83 of the two Acts. When the Senate is constituted and becomes functional then it is the only authority under the two Acts to frame the statutes. We fail to understand how the State Government can frame the statutes when the Senate is functioning. There cannot be two parallel authorities to make subordinate legislation on the same subject-matter. In view of the scheme of the two Acts it is not possible to contend that the Senate has no power to make statutes on a subject for the first time. We do not agree with the learned counsel for the appellant that the State Government has the power to keep on making “First Statutes” till it exhausts all the subjects/topics on which statutes could be framed under the two Acts. This argument goes contrary to the very object and purposes of the two Acts.
According to the learned counsel, the Hon’ble Supreme Court, in the above matter overruled the contention that the State Government continues to have power to frame statutes and interfere with the University affairs when the statutes have been already framed and become functional. The Court held that no other body could take any decision on the matters which come under the purview of the Senate including the State Government. In this case, it is muchless the Syndicate of the University.
(iii) 2007(3) LW 755 (Elangovan v. The Thiruvalluvar University & Ors.)
Learned counsel would draw the attention of this Court to paragraph No.21 of the order of a learned Judge of this Court, which is extracted hereunder.
- It is well settled that a power should be conferred by Statute and cannot be made out by inference. Even if a power conferred by Statute requires any interpretation, such interpretation should actually subserve the cause for which the Statute was enacted and it should not subvert the process of law.
The above succinct observation of the learned Judge would squarely apply to the facts and circumstances of the case. Learned counsel would submit that in this case, the power of the Senate is not to be exercised by the Syndicate on certain matters including fixation or revision of affiliation fee. Learned counsel would therefore submit that in consideration of the cumulative circumstances with reference to the provisions of the Act, Statute, Ordinances and the Regulations which are the governing laws of the University, the present impugned action is unsustainable and is liable to be set aside.
- Per contra, the learned Additional Advocate General, Mr.Sricharan Rangarajan, appearing for the University would submit that Section 31 and its sub-clauses of the Act and also the relevant Statutes framed thereunder do not contemplate any specific procedure to be followed while amending the Statute in respect of the revision of affiliation fee. According to the learned Additional Advocate General, earlier to the present revision, there were several other revisions which had taken place over a period of time and in respect of those revisions, there was no protest at all by the affiliated colleges or by the petitioner Association. The procedure which has been adopted now was the same which was adopted in the earlier revisions also.
- Learned Additional Advocate General would submit that the Syndicate has merely proposed the revision in its meeting dated 06.03.2006 but ultimately the resolution was passed only by the Senate on 31.03.2006. He would therefore submit that the question of Syndicate usurping the power of the Syndicate did not arise at all in this case.
- According to him, the Syndicate is not completely denuded of its jurisdiction and power even in the matters of affiliation fee. Under Chapter XXVI which deals with affiliation, approval of colleges and autonomous colleges, it could be seen that the Syndicate has been enjoined with the power to recommend to Senate, the withdrawal or suspension of the affiliation etc. in terms of relevant Statute made by the Senate itself. Under the same Chapter, it also provides that every college seeking affiliation has to satisfy the Syndicate of various requirements/conditions prescribed by Statutes 5 to 30. In terms of the Act and the Statutory prescription, the Syndicate enjoys a prominent position in the matter of grant of recognition or approval or affiliation to the Colleges. As per Statute 22, all applications for recognition, affiliation or approval of colleges shall be considered by the Syndicate. The Syndicate has therefore, a predominate no role in affiliation matters.
- Learned Additional Advocate General would further submit that the procedure for revision of affiliation fee does not come within the purview of Section 31(4)(b) at all and in support of this contention, he would draw reference to statutes 1 to 30 which are grouped under Chapter XXVI. These statues do not deal with or pertain to revision of affiliation fee at all. But unlike Section 31, specific procedures have been contemplated to be followed by the University while granting affiliation, approval of Colleges. He would therefore submit that the so called mandatory procedure emphasised on behalf of the petitioner may not be a valid piece of submission. He would buttress his argument contending that no specific procedure has been contemplated in the scheme of the Act for making the Statute or amending the same and therefore the so called bar against the Syndicate in terms of section 31(4)(b) may not be attracted at all.
- In this connection he has also drawn reference to Sections 33 and 34 of the Act wherein a clear procedure has been prescribed that the Senate shall have power by a resolution passed by a majority of not less than 2/3rd of members present at such meeting, to cancel or modify any ordnance and likewise, the same procedure to be adopted to cancel or modify any regulation framed by the Academic Council. When specific procedure has been provided in the said section, in the absence of any particular procedure contemplated in Section 31 of the Act, the proposal by the Syndicate for revision of affiliation fee cannot be successfully assailed that the Syndicate has violated the provisions of the Act and that the Senate’s ultimate resolution on that account is illegal.
- Learned Additional Advocate General would submit that the fact of the matter is that the competent body even according to the petitioner, the Senate has eventually passed the resolution on 31.03.2006 and once resolution is passed by the competent body, it should be construed that there was a valid amendment deemed to have been inserted in the Statutes. He would also draw reference to sub clause 2 of Section 31 where the Syndicate has also been provided with power to propose to the Senate the draft of any statute. Therefore, the Syndicate is not deprived of any say in the management of the affairs of the University in regard to the subjects which come under the purview of the Senate.
- Learned Additional Advocate General would also submit that the writ petition is also not maintainable as the petitioner has not challenged the Senate resolution dated 31.03.2006 and what is challenged is only the consequential communication of the University. Therefore, on this ground alone, the writ petition is liable to be dismissed, apart from the other legal objections on the merits of the writ petition.
- Learned Additional Advocate General would reiterate that when the revision had taken place in the past years 1996-1999, 2002-2004, such revisions were effected with the full knowledge of the President of the petitioner Association and he was part of the consultative process before introduction of every revision in the past. Therefore, it does not lie in the mouth of the petitioner now to assail the present revision wherein the same procedure has been adopted in terms of the scheme of the act and the statute provided thereunder.
- As regards the objection that there is no provision for temporary affiliation, learned Additional Advocate General would submit that the Statute 28 contemplates provisional recognition and in fact, UGC Regulations, 2009, provide for two forms of affiliation for colleges, permanent and temporary. Therefore, there is nothing wrong in granting temporary affiliation to the colleges as the University is bound by the UGC regulations, being a Central Regulating Body. In regard to the procedure for amending the statute, the learned counsel has also drawn analogy to the Central University Act, 2009 and Manomaniam Sundaranar University Act, 1990, which Acts provide for clear procedure for making and amending the statutes unlike the present Act. He would therefore submit that once, the Act is deemed to have been amended and the revision has been effected, the challenge made by the petitioner has to necessarily fail.
- In regard to various legal contentions touching upon the core consideration of this Court, the learned Additional Advocate General would rely on the following decisions.
(i) MANU/UP/0625/2004 (Vijay Singh & Ors v. State of Uttar Pradesh & Ors.)
This Court’s reference has been drawn to paragraph 53 to 55 which are extracted hereunder.
- It is well established Rule of interpretation of a Statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a Rule must give way where the language of the Statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay and Anr. v. M/s. Parley Export (P) Ltd., AIR 1980 SC 644, the Hon’blc Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferry Alloy Ltd., Cuttack v. Collector of Central Excise, AIR 1991 SC 1028, the Hon’ble Supreme Court has applied the same Rule of interpretation by holding that “contemporaneo expositio by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument.” Same view has been taken by the Hon’blc Supreme Court in K.P.Verghese v. Income Tax Officer, AIR 1981 SC 1922; Collector of Central Excise, Guntur v. Andhra Sugar Ltd., AIR 1989 SC 625;State of Madhya Pradesh v. G.S.Daal and Flour Mills(supra), and Y.R.Chwla and Ords. Vs. M.P.Tiwari and Anr., AIR 1992 SC 1360. in N.Suresh Nathan v. Union of India and Ors., 1992 (Suppl) 1 SCC 584; and M.B.Joshi and Ors. vs. Satish Kumar Pandey and Ors., 1993 (Suppl.) 2 SCC 419, the Apex Court observed that construction in consonance with long-standing practice prevailing in the concerned department is to be preferred.
- In J.K.Cotton Spinning & Weaving Mills Ltd. v. Union of India and Ors., AIR 1988 SC 191, it has been held that the maxim is applicable in construing ancient Statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in context of the new facts and situation, if the words arc capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector v. Laxminarain Chopra and Ors., AIR 1962 SC 159.
- In Desh Bandhu Gupta and Ors. v. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporeneo expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc, generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is never- the less entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent, reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that “wrong practices docs not make the law.” [Vide Municipal Corporation for City of Pune v. Bharal Forge Co.Ltd., -AIR 1996 SC 2856]. In D.Stephan Joseph v. Union of India and Ors., (1997) 4 SCC 753, the Hon’ble Supreme Court has held that “past practice should not be upset provided such practice confirms to the rules” but must be ignored if it is found to be de hors the rules.
The Full Bench of Allahabad High Court emphasised on the practical application of Statute following the Hon’ble Apex Court ruling that the principle of contemporeneo expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority. Learned Additional Advocate General would therefore submit that the Court may not lose sight of the fact that in the absence of any procedure, a practical construction is required to be adopted while justifying the validity of the action taken by the University.
(ii) AIR 1966 SC 707 (Principal, Patna College, Patna and Ors. v. Kalyan Srinivas Raman) (Constitution Bench).
Learned Additional Advocate General though referred to some paragraph of the judgment, but ultimately, the decision was relied on in order to impress upon this Court that when two constructions are possible, the Court should ordinarily be reluctant to issue any direction and reverse a decision of the authority. The observation of the constitution bench in this regard is extracted hereunder.
- ………Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the Hi Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Court’s jurisdiction to issue a writ of certiorari are well-recognised and it is, on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind.
(iii) 2021 (2) SCC 564 A.P.J. Abdul Kalam Technological University and Anr. vs. Jai Bharathi College of Management and Engineering Technology and Ors.)
This Court’s attention has been drawn to the following issues.
- i) Whether the power of Syndicate to lay down norms for grant of affiliation when there is absence of Statutes of University is ultra vires the 2015 University Act?
- ii) Whether the University can go beyond the AICTE Regulations?
Thereafter, paragraphs 32 and 33 have been referred to hereunder.
- Section 30(1)vests upon the Syndicate, the executive powers of the University, including the general superintendence and control over the institutions of the University. Sub-section (2) of Section 30 lists out the powers available to the Syndicate, subject to the provisions of the Act and the Statutes. The power under Clause (iii) of Sub-section (2) of Section 30 is of relevance and it reads as follows:
“30(2) Subject to the provisions of this Act and the Statutes, the Syndicate shall have the following powers, namely:-
(iii) to propose norms and standards for affiliating colleges as regular colleges or autonomous colleges or constituent colleges of the University.”
- Thus, the source of power for the Syndicate to prescribe norms and standards for affiliation, is Section 30(2). Section 30(2) begins with the words “subject to the provisions of the Act and the Statutes”. So, if there is something in the Act or the Statutes which regulates or controls the power of the Syndicate, then the Syndicate may be bound by such prescription. But if there is nothing in the Act/Statutes or if there are no Statutes at all, then it cannot be said that the power itself is unavailable. What is important to observe is that the power of the Syndicate to propose norms and standards flows out of the Act and not out of the University Statutes. Therefore, the absence of Statutes, till they were made for the first time on 07.08.2020, did not mean that the power under Section 30(2) could not have been exercised. The High Court erred in thinking that in the absence of the Statutes, recourse was available only to the Vice Chancellor under Section 14(6), overlooking for a moment that the power under Section 30(2)(iii) would not become otiose due to the absence of the Statutes.
Learned Additional Advocate General would submit that the power of the Syndicate to propose/ recommend including revision of affiliation fee flows out of the Act and not out of the University Statutes. In the present Act also Section 32 which specifically deals with the power of the Syndicate begins with the words “Subject to the provisions of the Act and the Statutes”. The observation of the Hon’ble Supreme Court would squarely apply to the factual matrix of the present case that the power to propose for revision of affiliation fee is inherent and is not taken away in the absence of any procedure contemplated in the Act or the Statute.
(iv) 1977 (2) MLJ 403 (Sathya Rao and Ors. The University of Madras and Ors.)
It would be useful to refer paragraph Nos.22 to 24 of the judgment which are extracted hereunder:
“22. As far as the second point is concerned, it was urged on the basis of the well known decision in Kruse v. Johnson (1898) 2 Q.B. 91 , and also on the basis of the contention that in this case the Central Government as well as all the Universities except the Madras and the Madurai Universities have recognised the examination in question as equivalent to the entrance examination of the respective Universities and that the Madras University and the Madurai University are the only Universities which have adopted this attitude and that this will have the effect of preventing the petitioners herein from entering the University itself. In Kruse v. Johnson (1898) 2 Q.B. 91 , after considering what a by-law was and what safeguard the statute had provided with reference to the making of the by-law, Lord Russell, C.J., stated:
I have thought it well to deal with these points in some detail, and for this reason that the great majority of the cases in which the question of bylaws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of railway companies, dock companies, or other like companies, which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of cases it is right that the Courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the Court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, “benevolently” interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think Courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness. Notwithstanding what Cockburn, C.J., said in Bailey v. Williamson (1873) L.R. 8 Q.B. 118 , an analogous case, I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn bylaws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust; if they disclosed bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might Well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this case only, as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the country, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of the validity of by-laws were to be determined by the opinion of judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide; for they reveal as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be tested.
We have extracted in extenso from the said judgment since the above extract will cover practically all aspects of the matter in question.
- In a subsequent decision, namely, Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 K.B. 223 , Lord Greene, M.R., said:
But once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr. Gallop, is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable is the Court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision in a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere. That I think, is quite right, but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop, in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body could have come to. It is not what the Court considers unreasonable, a different thing altogether. If it is what the Court considers unreasonable, the Court may very well have different views to that of a local authority on matters of high public policy of this kind. Some Courts might think that no children ought to be admitted on Sundays at all, some Courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this Court, in my opinion, cannot interfere.
The above pronouncements make it clear that a Court cannot sit in judgment as if it were an Appellate Authority over the wisdom of a particular body which made the subordinate legislation or passed the by-law or prescribed the conditions or qualifications and come to a conclusion differing from the one which that body took on the reasonableness or otherwise of such subordinate legislation, by-laws or conditions or qualifications. The principle is that only when it is established that no reasonable person could have come to such a conclusion or could have made such a by-law or subordinate legislation, the Court can interfere. It should not be forgotten that in the present case the body which was entrusted with the power is the Syndicate of the University which may be considered to be an expert body in relation to matters on education. Whether one considered it to be an expert body or not, the Legislature thought fit to consider such a body as an expert body on matters relating to education and has chosen to confer the power on such a body. Therefore unless the Court is convinced that the conditions prescribed in the present case are so unreasonable as no reasonable person would have come to or are alien or foreign to the purpose for which the power was conferred on the Syndicate, the Court cannot hold that the conditions imposed by the Syndicate are unreasonable as to avoid the same.
This decision was relied on principally in order to emphasize the Courts power of interference in decisions taken in the realm of subordinate legislation/bye laws etc. In such matters, interference is warranted only when exercising the power conferred upon the body is unreasonable or foreign, to the purpose for which, it was conferred. According to the learned Additional Advocate General that in this case, the Syndicate is not completely denuded of any role in the matters concerning affiliation of the colleges to the University. In fact, all the applications seeking affiliation need to be routed through Syndicate and the Syndicate is empowered to consider the application on its merits in terms of the Scheme of the Act. Along with the Senate, the Syndicate has also been clothed with wide power concerning affiliation of College and related matters on a combined reading of the Act, the Statute and the Ordinances.
(v)AIR 1954 SC 217 (The Vice-Chancellor, Utkal University and Ors. v. S.K.Ghosh and Ors.) (Constitution Bench).
Reference has been drawn to paragraph Nos.14, 15 & 16, which are extracted hereunder.
- The right of the syndicate to control the examinations, to scrutinise the results, to invalidate an examination for proper reasons and to order a re-examination, when necessary, was not disputed. In view of the undertaking given the only points argued were the two which the High Court decided against the University.
- Several English authorities were cited about the effect of an omission to give notice to even one member of a body entitled to receive it, in particular a decision of the Privy Council in Radha Kishan Jaikishan v. Municipal Committee, Khandwa. We do not think it necessary to examine the general principle at any length because, in our opinion, this case is governed by its own facts. It may well be that when there is a statutory requirement about notice the provisions of the statute cannot be evaded or ignored. It may also be, though we do not stop to enquire whether it is, that when the constitution of a non-statutory body requires notice to be given, then also there cannot be any relaxation of the rule.
- The reason for the stricter rule laid down in the cases cited before us is that though an incorporated body like an University is a legal entity it has neither living mind nor voice. It can only express its will in formal way by a formal resolution and. so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution. If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express his views. Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed. Hence, an omission to give proper notice even to a single member in these circumstances would invalidate the meeting and that in turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution. The position is different when, either by custom or by the nature of the body or by its constitution and rules, greater latitude and flexibility are permissible. Each case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters, can be disposed of more easily and with less formality than others. It all depends on the nature of the body and its rules.
The above paragraphs would point to the legal position that absolute compliance of every procedure need not be insisted upon in every situation and in appreciation of the nature of body and its constitution, greater latitude and flexibility are permissible. The Constitution Bench has held that in the matters of regular routine, the same can be disposed of with less formality than others. As far as the issue on hand is concerned, the revision of rates of affiliation fee is part of the regular and routine activities of the University and inflexible rigidity is not to be insisted upon, even assuming the University has not followed a particular line of procedure as contended on behalf of the petitioner.
(vi) 2008(4) Madras Law Journal 538 (Dr.M.Ponnuswamy v. University of Madras) and 2006(3) CTC 1 ( University of Madras v. Dr.Maa. Selvaraasan & Anr.)
In the above two matters, this Court, one by a single Judge and the other by a Division Bench respectively, has held that in regard to the first case, that where the appointment order empowered University to transfer faculties, amendment to statute was not required at all. In the latter case that in the absence of a specific statutory provision prescribing disciplinary proceedings, Syndicate passed a resolution adopting the Tamil Nadu Civil Service Classification(Control and Appeal) Rules and the Syndicate ordered appointment of Enquiry Officer which was held to be valid by the Division Bench of this Court. Paragraph No.8 of the Division Bench order is extracted hereunder.
- We find considerable substance in the submission of the learned senior counsel. The statutes of the University do not deal with the procedure to be followed in disciplinary proceedings. In Writ Petition No. 17282 of 1994, a learned single Judge of this Court had observed that it is high time that the procedure should be prescribed (See A.G. Venkataraman v. The University of Madras rep. by its Registrar, Madras). In view of the judgment, a resolution was passed by the Syndicate to follow the Tamil Nadu Civil Service Classification (Control and Appeal) Rules applicable to the Government servants while taking disciplinary action against the University employees. This resolution was passed on 22.8.1997. Section 17(b) of the Tamil Nadu Civil Service Classification (Control and Appeal) Rules provides for a reasonable opportunity to a charged employee to defend his case. By following the procedure under Rule 17(b), the University has provided a reasonable opportunity to the respondent. There is nothing in the statutes of the University or in the University Act which prohibits the appointment of any person or body to conduct or hold the enquiry. As there is no express prohibition, the normal rule applicable to such cases will come into play.
According to the learned Additional Advocate General, the above ruling of this Court would lay down the legal position that in the absence of statute contemplating a particular procedure, the recommendation of the Syndicate cannot be faulted with.
(vii) 1964 (77) LW 591 (University of Madras by its Registrar Vs. V.R.Nagalingam). Learned Additional Advocate General would place strong reliance on the above decision wherein it is observed as follows.
(9) What takes place at a meeting before arriving at the final decision being not one for record in the minutes, it cannot be assumed that the Syndicate did not consider the vital matter or that its act is invalid. It will be for the person aggrieved by that act who calls in aid the judicial power in this court to pronounce it has void, to show that the authority acted in excess of its powers and did not actually decide the matter.
In Vice Chancellor Utkal University v. V. S. K. Ghosh, the Supreme Court observed:
“Though an incorporated body like a University is a legal entity, it has neither a living mind nor voice. It can only express its will in a formal way by a formal resolution and so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution”.
The practice of the University appears to have been only to record its resolutions; there is nothing in its constitution or the statutes to oblige it to record even a summary of the discussion on the resolution. As pointed out by Jagadisan J. in the unreported decision in W. P. No. 922 of 1961, it is not obligatory upon the Syndicate to write a judgment giving reasons and “an unspeaking order is not ex facie bad because of its muteness”. But that does not mean that there is any irrebuttable presumption that the statutory authority which performs a quasi judicial act, has done it in the true judicial spirit. that question will always have to be decided by the superior court when it arises.
The above observations of the Division Bench of this Court would clearly demonstrate that there is no statutory requirement to record detail discussions on the resolution to be passed by the Senate. When the resolution is passed by the competent body by implication, it is deemed to have been discussed thoroughly and deliberated upon and final resolution is passed. This is more so, when the Senate consists of eminent members representing all sections connected to the whole affairs of the University and its Management.
(viii) 2011(5) CTC 421 Madras (Pooja Bagri v. The Registrar, University of Madras)
Learned Additional Advocate General would refer to paragraph No.14, as hereunder.
- It is well settled that while interpreting a provision or regulation in a statute, the natural and ordinary meaning of the words, “first instance” should be given, unless it is shown in the legal context, in which, the words are used, require a different meaning. It should also be borne in mind that while interpreting a provision, the entire statute or regulation should be read as a whole and one provision should be construed with reference to other, so as to make both the provisions work together harmoniously. Besides, the purpose for which the Rule or Regulation is enacted, should also be the part of interpretative process to see that the construction of the said Regulation or Rule achieves the purpose, for which, it is enacted.
A learned Judge of this Court has held that while interpreting a provision, the entire statutory regulation should be read as a whole and there must be harmonious construction of the provisions in order to serve the purpose of which the regulation is enacted.
(ix) MANU/TN/2392/2008 ( Vivekanada Educatinal Society v. Pondicherry University).
This case was referred to by the learned Additional Advocate General only for emphasising the legal position that the University is empowered to charge affiliation fee and other fees under its Act.
(x) One other unreported decision of a Division of this Court is relied on by the learned Additional Advocate General in W.A.No.591 of 2009 (Senthil College of Education vs. The Vice Chancellor Pondicherry University) dated 27.02.2018, touching upon the revision of affiliation fee by the Pondicherry University. This is referred to once again in order to highlight the power of the University to change/revise affiliation fee.
- Learned Additional Advocate General would therefore submit that in the complete absence of procedure in terms of the Act and the Statute of the University, no infirmity could be found in the ultimate decision taken by the University in revising the rates of affiliation fee. When the power of the University to revise the affiliation fee is not being challenged, the manner in which the resolution was passed by the Senate cannot be successfully questioned by the petitioner.
- Moreover, from the scheme of the Act, Statute, Ordnances, it could be seen that the Syndicate has a substantial and important role in regulating the affairs of the University including the receipt of applications for grant of affiliation from the colleges, scrutiny of the applications, recommendation for withdrawal of applications etc. and in the face of such powers being conferred on the Syndicate, a proposal or recommendation from the Syndicate recommending the revision of affiliation fee to the competent body namely, the Senate, cannot be questioned as being violative of any provisions of the Act, Statute or Ordinances. As stated earlier, ultimately, the Senate, the competent body passed the resolution accepting the recommendations of the Syndicate and only thereafter, the petitioner was communicated about the decision of the University.
- In the above circumstances, the petitioner Association which has in fact, parties to similar revisions of affiliation fee on multiple occasions in the past, wherein the University had adopted the same procedure for effecting the earlier revisions, it is not open to the petitioner herein to question the present revision alone for serving its own ends.
- Finally the learned Additional Advocate General would submit that every infraction of procedure need not necessarily vitiate the decision per se taken by the competent body, even assuming if there is any procedural lapse. In any case no prejudice could be shown to have impacted on the interests of the petitioner, as the petitioner Association had been taken into confidence pursuant to the direction of this Court in the earlier Writ Petition in W.P.(MD).No.7469 of 2016 dated 18.04.2016 and only thereafter, decision of revision of affiliation fee was taken. Therefore, the present challenge by the Association has to necessarily fail as being not only without substance and merits but also lacking in bonafides.
- Heard, Mr.V.Raghavachari, learned counsel for the petitioner and Mr.Sricharan Rangarajan, learned Additional Advocate General for the respondent University. Perused the pleadings and the materials and considered the case laws cited on behalf of the rival parties.
- This Court, at the outset makes it clear that it has no quarrel with the legal proposition that University has the power to revise the rates of affiliation fee and it is not anyone’s case either that the University has no power to revise the rate of affiliation fee periodically. Needless to mention that absence of such power would lead to a preposterous situation. As a matter of fact, admittedly, several revisions had taken place in the past and had been implemented across the Board by the respondent University. However, controversy herein is whether the respondent University has followed the procedure contemplated in the Act, Statutes, Ordinances and Regulations, while revising the affiliation fee or not presently. As a corollary to the principal question is when the provisions of the Act contemplate a particular procedure, whether the procedure is mandatory or otherwise demanding strict compliance and consequently, non-adherence to the procedure contemplated in the Act and the Statute of the University whether would render the impugned decision vulnerable, calling for intervention of this Court in its exercise of its power of judicial review or not? The answers are to be found hereunder by dissecting through the anatomy of the Act and applying the correct legal principles that fit the bill.
- The Madurai Kamaraj University Act, 1965, was enacted for the purpose of establishing the University in Madurai. The Act contains various provisions clearly defining roles for every body under various Chapters in administering and managing the whole affairs of the University. In terms of the Scheme of the Act, there are three governing bodies namely, the Senate, the Syndicate and the Academic Council. As per Section 16 of the Act, the Senate shall be the Supreme Governing Body and Section 17 lays down various powers to be exercised by the Senate in managing the affairs of the University. In order to appreciate premier status of the Senate under the scheme of the University Act, Sections 16 and 17 and its sub-clauses are extracted hereunder.
- The Senate to be the supreme governing body– The Senate shall be the supreme governing body of the University and shall have power to review the action of the Syndicate and of the Academic Council save where the Syndicate and the Academic Council have acted in accordance with powers conferred on them by this Act, the statutes, the ordinances or the regulations and shall exercise all the powers of the University not otherwise provided for and all powers requisite to give effect to the provisions of this Act:
Provided that if any question arises whether the Syndicate or the Academic Council has acted in accordance with such powers as aforesaid or not, the question shall be decided by a resolution passed by not less than two-thirds of the number of members present and voting at a meeting of the Senate and the decision thereon shall be final.
- Powers of the Senate:– In particular and without prejudice to the generality of the powers conferred by section 16, the Senate shall have the following powers, namely:-
(1) to make statues and amend or repeal the same;
(2) to modify or cancel ordinances and regulations in the manner prescribed by this Act;
(3) to co-operate with other Universities, other academic authorities and colleges in such manner and for such purposes as it may determine;
(4) to provide for instruction and training in such branches of learning as it may think fit;
(5) to institute and maintain institutes of research, University colleges, University laboratories, libraries and museums;
(6) to prescribe in consultation with the Academic Council the conditions for approving colleges or institutions in which provision is made for courses of study for admission to the Pre-university examination or for the preparation of students for titles or diplomas of the University and to withdraw such approval;
(7) to provide for research and advancement and dissemination of knowledge;
(8) to institute, after consultation with the Academic Council, lecturerships, readerships, professorships and any other teaching posts required by the University;
(9) to prescribe in consultation with the Academic Council, the conditions for affiliating colleges to the University and to withdraw affiliation from colleges;
(9-A) to prescribe in consultation with the Academic Council, the manner in which and the conditions subject to which a college may be designated as an autonomous college and such designation may be cancelled.
(10) to provide after consultation with the Academic Council such lectures and instructions for students of University colleges, affiliated colleges and approved colleges as the Senate may determine and also to provide for lectures and instructions to persons not being students of colleges and to grant diplomas to them;
(11) to provide for the inspection of all colleges and hostels;
(12) to institute degrees, titles, diplomas and other academic distinctions;
(13) to confer degrees, titles, diplomas and other academic distinctions on persons who –
(a) shall have pursued an approved course of study in a University college or laboratory or in an affiliated or approved college or have been exempted therefrom in the manner prescribed and shall have passed the prescribed examinations of the University; or
(b) shall have carried on research under conditions prescribed;
(14) to confer honorary degrees or other distinctions on the recommendation of not less than two-thirds of the members of the Syndicate;
(15) to establish and maintain hostels;
(16) to institute, after consultation with the Academic Council, fellowships, travelling fellowships, scholarships, studentships, bursaries, exhibitions, medals and prizes;
(17) to prescribe the fees to be charged for the approval and affiliation of colleges, for admission to the examinations,degrees and diplomas of the University, for the registration of graduates, fir the renewal of such registration and for all or any of the purposes specified in section 4;
(18) to consider and take such action as it may deem fit on the annual report, the annual accounts and the financial estimates;
(19) to institute, after consultation with the Academic Council, a University extension Board and to maintain it;
(20) to institute after consultation with the Academic Council, a Publication Bureau, Students’ Unions, employment Bureau and University Athletic Clubs and to maintain them;
(21) to enter into any agreement with the Central or any State Government or with a private management for assuming the management of any institution and for taking over its properties and liabilities or for any other purposes not repugnant to the provisions of this Act;
(22) to make statutes regulating the method of election to the authorities of the University and the procedure at the meeting o the Senate, Syndicate and other authorities of the University and the quorum of members required for the transaction of business by the authorities of the University other than the Senate;
(23) to recommend to the Government the recognition of any area within the University area as University Centre; and
(24) to delegate such of its powers as it may deem fit to any authority or authorities of the University constituted under this Act.
Sub- clause(1) of Section 17 provides for making of Statute by the Senate and Sub-clause(17) of Section 17 provides for prescription of fee to be charged for affiliation of colleges among other related matters.
- Likewise, Section 20 of the Act lays down the Powers of the Syndicate.
- Powers of the Syndicate. — The Syndicate shall have the following powers, namely:—
(1) to make ordinances and amend or repeal the same;
(2) to hold, control and administer the properties and funds of the University;
(3) to direct the form, custody and use of the common seal of the University;
(4) to regulate and determine all matters concerning the University in accordance with this Act, the statutes, the ordinances and the regulations;
(5) to frame the financial estimates of the University and submit the same to the Senate;
(6) to administer all properties and funds placed at the disposal of the University for specific purposes; (7) to appoint the University Lecturers, University Readers, University Professors and the teachers and the servants of the University, fix their emoluments, if any, define their duties and the conditions of their services and provide for filling up of temporary vacancies;
(8) to suspend and dismiss the University Lecturers, University Readers and University Professors and the teachers and the servants of the University;
(9) to accept on behalf of the University endowments, bequests, donations, grants and transfers of any movable and immovable properties made to it provided that all such endowments, bequests, donations, grants and transfers shall be reported to the Senate at its next meeting;
(10) to raise on behalf of the University loans from the Central or any State Government or the University Grants Commission or the public or any corporation owned or controlled by the Central or any State Government required for the purposes of this Act; (11) to affiliate colleges within the University area to the University and to recognise colleges as approved colleges; 1 [(11-A) to designate any college as an autonomous college with the concurrence of the Government and to cancel such designation;],
(12) to recognise hostels not maintained by the University and to suspend or withdraw recognition of any hostel which may not be conducted in accordance with the ordinances and the conditions imposed thereunder;
(13) to arrange for and direct the inspection of all University colleges, affiliated and approved colleges and hostels;
(14) to prescribe, in consultation with the Academic Council, the qualifications of teachers in University colleges, affiliated and approved colleges and hostels;
(15) to award fellowships, travelling fellowships, scholarships, studentships, bursaries, exhibitions, medals and prizes in accordance with the statutes;
(16) to charge and collect such fees as may be prescribed;
(17) to conduct the University examinations and approve and publish the results thereof;
(18) to make ordinances regarding the admission of students to the University or prescribing examinations to be recognised as equivalent to University examinations;
(19) to appoint members to the Boards of Studies;
(20) (i) to appoint examiners after consideration of the recommendations of the Boards of Studies; and (ii) to fix their remuneration;
(21) to supervise and control the residence and discipline of the students of the University and make arrangements through the colleges for securing their health and well-being;
(22) to manage University centers, University colleges and laboratories, libraries, museums, institutes of research, and other institutions established or maintained by the University;
(23) to manage hostels instituted by the University;
(24) to regulate the working of the University Extension Board;
(25) to manage any publication bureau, students’ unions, employment bureau and University athletic clubs instituted by the University;
(26) to review the instruction and teaching of the University;
(27) to promote research within the University and to require reports from time to time of such research;
(28) to exercise such other powers and perform such other duties as may be conferred or imposed on it by this Act, or the statutes, ordinances or regulations; and
(29) to delegate any of its powers to the Vice-Chancellor, to a committee from among its own members or to a committee appointed in accordance with the statutes.
Sub-Clause(1) of Section 20 provides for making of ordinances by the Syndicate and sub-clause(4) of Section 20 clarifies that the Syndicate can determine all matters concerning the University in accordance with the Act, statutes, ordinances and regulations. The Syndicate is empowered with several functions like administering the properties, appointment of University lecturers, conduct of examination, affiliation and recognition of colleges etc.
- As far as the Academic Council is concerned, section 23 of the Act defines what is Academic Council and Section 24 provides for constitution of the Academic Council. The various functions of the Academic Council as provided under Chapter V of the Act which included Section 23 and 24 and the powers of the Academic Council defined under Section 25 would take within its sweep all matters touching upon the academic matters of the University. The powers of the Academic Council as defined under Section 25 is not extracted for the reason since the decision to be taken in the matter does not touch upon the role of the Academic Council.
- In terms of Section 17 of the Act, under Chapter-VI, Section 30, provides for all matters, inter alia, the conditions of recognition of approved colleges and of affiliation to the University of affiliated colleges. Section 30 sub-clause (c) reads as under:
- Statutes.— Subject to the provisions of this Act, the statutes may provide for all or any of the following matters, namely—
(c) the conditions of recognition of approved colleges and of affiliation to the University of affiliated colleges;
- Further, section 31 defines how statues are made. This section is the most pivotal provision, since the fulcrum of rival arguments was principally premised on this provision. Section 31 is extracted hereunder.
- Statutes, how made.—
(1) The Senate may of its own motion take into consideration the draft of any statute:
Provided that in any such case before a statute is passed affecting the powers or duties of any officer or authority, the opinion of the Syndicate and a report from the person or authority concerned shall have been taken into consideration by the Senate.
(2) The Syndicate may propose to the Senate the draft of any statute. Such draft may be considered by the Senate at its next succeeding meeting. The Senate may approve such draft and pass the statute or may reject it or return it to the Syndicate for reconsideration either in whole or in part, together with any amendments which the Senate may suggest. After any draft so returned has been further considered by the Syndicate, together with any amendments suggested by the Senate, it shall be again presented to the Senate with the report of the Syndicate thereon, and the Senate may then deal with the draft in any manner it thinks fit.
(3) Where any statute has been passed by the Senate or a draft of a statute recommended by the Syndicate has been rejected by the Senate, it shall be submitted to the Chancellor who may refer the statute or draft back to the Senate for further consideration or in the case of a statute passed by the Senate assent thereto or withhold his assent. A statute passed by the Senate shall have no validity until it has been assented to by the Chancellor.
(4)The Syndicate shall not propose the draft of any statute or of amendment to a statute—
(a) affecting the status, powers or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal; any opinion so expressed shall be in writing and shall be considered by the Senate and shall be submitted to the Chancellor; or
(b) affecting the conditions of affiliation or approval of affiliated or approved colleges with the University or by the University; as the case may be; [or]
(c) affecting the conditions of designation of any college as an autonomous college]; except after consultation with the Academic Council;
- As far as making of ordinances is concerned, Sections 32 and 33 cover the subject which are also extracted hereunder.
- Ordinances.— Subject to the provisions of this Act and the statutes, the ordinances may provide for all or any of the following matters, namely:—
(a) the admission of students to the University and the levy of fees in University colleges and laboratories;
(b) the conditions of residence of the students of the University and the levy of fees for residence in hostels maintained by the University;
(c) the conditions of recognition of hostels not maintained by the University;
(d) the qualifications and emoluments of teachers of the University;
(e) the fees to be charged for courses of teaching given by teachers of the University and for tutorial and supplementary instruction given by the University; (f) the conditions subject to which persons who may hereafter be permanently employed may be recognised as qualified to give instruction in affiliated and approved colleges and hostels;
(g) the appointment and duties of examiners; (h) the conduct of examinations;
(i) the extension of University teaching in the town limits of Madurai and elsewhere in the University area; and (j) all other matters which by this Act or by the statutes may be provided for by the ordinances.
- Ordinances, how made.— (1) In making ordinance the Syndicate shall consult—
(i) the Boards of Studies when such ordinances affect the appointment and duties of examiners; and (ii) the Academic Council when they affect the conduct or standard of examinations, or the conditions of residence of students.
(2) All ordinances made by the Syndicate shall have effect from such date as it may direct, but every ordinance so made shall be submitted as soon as may be to the Chancellor and the Senate and shall be considered by the Senate at its next succeeding meeting. The Senate shall have power by a resolution passed by a majority of not less than two-thirds of the members present at such meeting to cancel or modify any such ordinance.
(3) The Chancellor may direct that the operation of any ordinance shall be suspended until such time as the Senate has had an opportunity of considering the same.
- Likewise, the Academic Council is empowered to frame regulations to be in consistent with the Act, the Statutes and the Ordinances. However, the powers of the Academic Council or the regulations of the Council may not have any bearing on the issues to be decided in this writ petition.
- It is pertinent to mention here that under sub-clause (2) of Section 33, it is clearly mentioned that the Senate shall have the power to cancel or modify any ordinances made by the Syndicate. Likewise, the Senate is also given power to cancel or modify any regulation made by the Academic Council as well, under sub-clause(2) of Section 34. These provisions would clearly demonstrate that the Senate enjoys the supreme position as defined under Section 16 of the Act in matters of overall administration of the affairs of the University.
- Chapter X of the Act elaborately deals with the procedure to be followed in the conduct of the meeting of the Senate and the matters that come under its purview. It also refers to various statues governing the functioning of the Senate while administering the affairs of the University. Likewise, Chapter XI deals with the procedure to be followed by the Syndicate in matter of its concern and Chapter XII deals with the functioning of the Academic Council on the above lines.
- Chapter XVII deals with the statutes of the Senate. Statute 1 defines “The Laws of the University” shall consist of the Act, Statutes, Ordinances and Regulations. Here again, sections 30 and 31 are replicated as to how Statutes are made by the Senate. Likewise, Sections 32 to 34 are found expressed again in this Chapter in regard to Ordinances and Regulations by the Syndicate and the Academic Council respectively .
- As far as the nucleus of the issue on hand is concerned, as to whether the present revision of the affiliation fee by the University has been effected by following the provisions of the Act, this Court has to necessarily rely on the cardinal provisions i.e., Section 31 of the Act. In terms of sub-clause(4) and (b) of Section 31, there is a clear embargo placed upon the Syndicate among others that it shall not propose the draft of any statute or of amendment of the statute affecting the conditions of affiliation or approval of affiliated or approved colleges with the University or by the University as the case may be. Thus, sub-clause (4) is an exception carved out from sub- clause (1) of section 31 which provided for proposal by the Syndicate of any draft Statutes for consideration of the Senate. Thus, the Scheme of the Act clearly envisaged the procedure to be followed in regard to a decision to be taken on certain matters. Although general power of proposal of any draft statutes is enjoined upon the Syndicate in Section 31 under sub-clause(1), however, under the same section sub clause (4) the Syndicate is denuded of the right to propose any draft statute inter alia as to affecting the conditions of affiliation etc.
- The frontal contention of the learned counsel for the petitioner is that from proposal of the Syndicate regarding the revision of the affiliation fee in their minutes of the meeting held on 06.03.2006 and the Senate, in the subsequent meeting held on 31.03.2006, accepting the proposal/approval mooted by the Syndicate, it did not appear that there was any discussion at all on this Agenda. This submission of the learned counsel has considerable force giving rise to a genuine misgiving as to whether the Senate has really applied its mind in terms of the exclusive power conferred on them, as being the Supreme Governing Body by the provisions of the Act and the Statutes or it has simply abdicated its power/ role in favour of to the subaltern body, namely the Syndicate of the respondent University or not? The following discussion would dispel the doubts raised as to the role played by the Senate in the matter of the present revision of the affiliation fee.
- With reference to Section 31 and its sub-clause(2), important submissions have been made by Mr.V.Raghavachari, learned counsel on behalf of the petitioner. The first submission is relating to power of the Syndicate to propose any draft statute in regard to revision of affiliation fee. Sub-Clause (b) of Clause 4 of section 31 clearly prohibits the Syndicate from proposing any draft statute on the subject of affiliation fee which does not require any interpretation at all. The expressions used in the relevant provisions are plain, simple and forthright.
- No doubt on behalf of the University, the learned Additional Advocate General has laboured much to point out that no specific procedure is explicitly contemplated in bringing about the amendment in the matter of revision of affiliation fee as in the case of other matters in terms of various provisions of the Act and Statutes. He has drawn reference to statute 1 to 20 under the caption “Conditions to be satisfied by the Affiliated and Approved Colleges”. He contended that the recommendation by the Syndicate cannot therefore, construed to be in violation of section 31 of the Act. The submission is apparently made out of desperation for the simple reason that when there is a clear bar that the Syndicate shall not propose draft of any statute or amendment to a statute, the plea that there was no proper or specific procedure contemplated in the Scheme of the Act is without any merits and substance. When the relevant provision of the Act deny a particular power to the Syndicate and if such power is to be exercised even on a marginal scale as contended on behalf of the University that would only amount to over reaching the defined contours of the functional limitation imposed by the provisions of the Act.
- In this connection, the relevant minutes of the meeting of the Senate dated 31.03.2006 need to be reproduced.
XVIII. 9-A. The Syndicate at its meeting held on 6.3.2006, considered the minutes of the meeting of the Affiliation Fee Review Committee held on 3.3.2006, regarding the revision of affiliation fee structure and resolved that the minutes of the meeting of the Affiliation Fee Review Committee held on 3.3.2006 be approved.
This was reported to the Senate.
- i) That the revised Affiliation fee structure (Vide Appendix-AC) be approved.
- ii) That this will come into immediate effect.
Neither the petitioner nor the University has chosen to file the minutes of the Syndicate meeting held on 06.03.2006. However, from the above resolution passed by the Senate, it could be seen that it is the Syndicate which has first approved the recommendation of the Affiliation Fee Review Committee held on 03.03.2006. Thereupon, the approval of the Syndicate was reported to the Senate and the Senate simply adopted the approval. Therefore, the submission made on behalf of the University mere making recommendation or proposing the revision would not amount to violation of the Act or any Statute is to be rejected as being contrary to the records.
- Further, this Court has gone through the relevant materials in regard to the revision of affiliation fee that took place in the year 2004. The then Affiliation Fee Review Committee in its meeting dated 24.03.2004 resolved to recommend to the Syndicate towards revision of affiliation fee with effect from 2004-2005. Pursuant to the recommendation, the Syndicate in the meeting dated 02.03.2004 passed a resolution as under.
Considered the minutes of the meeting of the Affiliation Fee Review Committee held on 24.02.2004.
Resolve that the minutes of the meeting of the Affiliation Fee Review Committee held on 24.02.2004 be approved with the following modification.
Existing Revised with effect from 2004-2005 1. Consideration Fee: U.G. Course Rs.20,000/- Rs.10,000/- P.G.Course Rs.20,000/- Rs.10,000/- Certificate Course Rs.2,000/- Rs.1,000/- Diploma Course Rs.3,000/- Rs.1,500/- P.G.Diploma Course Rs.5,000/- Rs.2,500/- 2. Affiliation Fee: U.G.Course Rs.1,00,000/- Rs.50,000/- P.G.Course Rs.2,00,000/- Rs.1,00,000/- M.Phil. Rs.5,000/- Rs.5,000/- Certificate Course Rs.5,000/- Rs.4,000/- Diploma Course Rs.10,000/- Rs.5,000/- P.G.Diploma Course Rs.25,000/- Rs.10,000/- 4. Confirmation, Affiliation (Permanent Affiliation) Fee: U.G.Course Rs.2,00,000/- Rs.10,000/- P.G.Course Rs.4,00,000/- Rs.10,000/-
Thereafter, the Senate in its meeting dated 30.03.2004 approved the revision from the Academic year 2004-2005, after discussion inter alia with the subject matter. But in the present Senate meeting held on 31.03.2006, not a semblance of discussion on the subject is reflected in the minutes as made available in the typed set of documents.
- From the above material facts, it could be seen that the Syndicate has arrogated to itself the primary role towards revision of affiliation fee structure. As borne out by the records in 2004 revision, the Syndicate has approved the revision of affiliation fee recommended by the Affiliation Fee Review Committee by effecting modification in the revision, consequently, the modified affiliation fee was approved by the Senate. Therefore, the Court has to come to an inevitable conclusion that the revision of affiliation fee either in the past or in the present was not in terms of the scheme of the Act.
- When there is a specific prohibition in the Act, prohibiting the Syndicate from proposing any statute or amendment to a statute affecting the conditions of affiliation, the assumption of jurisdiction on such matter by the Syndicate runs afoul of the separation of powers delineated in the Act. The minutes of the Syndicate meeting dated 06.03.2006, unequivocally disclosed that it is the Syndicate which called the shots in the matter of revision of affiliation fee contrary to the overall stand of the University in this proceedings. Although no copy of the minutes of the Syndicate meeting dated 06.03.2006 has been enclosed, but the minutes of the Senate dated 31.03.2006 vouch for the fact that it was the Syndicate which had affixed its stamp of approval of the revision of affiliation fee as recommended by the Affiliation Fee Review Committee. In the said circumstances, construing the decision taken by the Syndicate on 06.03.2006 as mere recommendation or proposal as contented on behalf of the University is not supported by the records. On the other hand, the Syndicate wittingly or unwittingly has been adopting a lead role on the subject matter, despite it being relegated to a secondary status to the Senate in terms of the scheme of the Act.
- The past action of the University over the years having remained uncontested for whatever reasons, cannot perforce validate the present revision that has been effected in complete contravention of the provisions of the Act. However, it is pertinent herein for this Court to make it clear that the legal finding herein cannot be seized as an opportunity windfall by the affiliated colleges to reopen the issue of revisions that had taken place in the past. The revisions having been acted upon by all the stakeholders without demur, it would be imprudent to open a can of worms at this stage, in this regard. Let the past revisions be the past.
- In the above said circumstances, this Court finds that the procedure followed by the University before effecting the impugned revision is not in terms of the statutory mandate. The Courts have repeatedly and consistently held, particularly, the Hon’ble Supreme Court of India that if a particular procedure is provided in a statutory scheme, the same need to be followed in the manner in which it is provided under the statute or not at all. This Court, in order to support the said statement of law would rely on (i) 2007(5) SCC 85 (Kunwar Pal Singh v. State of U.P.) and (ii) 2015 (4) SC 544 (Mackinnon Mackenzie & Co.Ltd. vs. Mackinnon Employees Union).
(i) In 2007(5) SCC 85 (Kunwar Pal Singh v. State of U.P.), the relevant paragraph No.16 is extracted hereunder.
“16. Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefore in the Act.”
- ii) In 2015 (4) SC 544 (Mackinnon Mackenzie & Co.Ltd. vs. Mackinnon Employees Union), the relevant paragraph No.42 is extracted hereunder:
“42. Apart from the said decisions, this Court has followed the Privy Council of 1939 and Chancellor’s decisions right from the year 1875 which legal principle has been approved by this Court in the case of Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh and the same has been followed until now, holding that if a statutory provision prescribes a particular procedure to be followed by the authority to do an act, it should be done in that particular manner only. If such procedure is not followed in the prescribed manner as provided under the statutory provision, then such act of the authority is held to be null and void ab initio in law. In the present case, undisputedly, the statutory provisions of Section 25FFA of the I.D. Act have not been complied with and therefore, consequent action of the appellant-Company will be in violation of the statutory provisions of Section 25FFA of the I.D. Act and therefore, the action of the Company in retrenching the concerned workmen will amounts to void ab initio in law as the same is inchoate and invalid in law.”
- Although, on behalf of the University it was strongly argued further that in the matters concerning subordinate legislation, rigid application of the rules may not be insisted upon, this Court is once again unable to countenance such arguments that when the statutory provisions clearly place an embargo on a body from making any draft proposal, if any proposal even in the nature of recommendation emanates from the body and on the basis of such recommendation, the competent body namely the Senate passed a resolution, this Court has to necessarily hold that such resolution is in contravention of the statutory provisions of the Act. As stated above, presence or absence of explicit procedure is immaterial, when the provision clearly bars the Syndicate from proposing any draft statute in the first place.
- The analogy drawn by the University in regard to the procedure being provided for, in other sections, particularly, in regard to the power of the Senate to modify or cancel the ordinances and regulations in terms of sections 34 and 35, such analogy is thoroughly misplaced and legally unacceptable. The analogy drawn is ex facie specious as the so called procedure namely, that a resolution of the Senate to be passed by a majority of not less than two third of the members present to cancel or modify Ordinances or Regulations has absolutely no nexus to the operation of section 31 of the Act and its import.
- Apart from the above procedural violation, the most important infraction pointed out on behalf of the petitioner is that the impugned amendment is unenforceable in law, as clause 3 of Section 31 states that a Statute passed by the Senate shall have no validity until it has been assented to by the Chancellor, as admittedly, the amendment has not received the assent of the Chancellor. This submission cuts at the root of the issue. Although countering the contention, the learned Additional Advocate General argued that in the past several revisions had taken place and the same petitioner is also a party to such revisions in the deliberations preceded such revisions, and in interference with the exercise of power within the frame work of subordinate legislation, flexible approach to be adopted, this Court is unable to countenance such reasoning of the respondent University. In fact, in this regard, learned counsel for the petitioner has brought to the notice of this Court that in the year 1988, when the affiliation fee was revised by the University, the revision has received the assent of the Chancellor on 03.06.1988 and incorporated in the Statute. Admittedly, the present revision of the affiliation fee has not received the assent of the Chancellor, who is none other than His Excellency The Governor of the State of Tamil Nadu.
- In regard to the above, reference to Statute 24 of the Act need to be drawn. It provides for payment of affiliation fee for various courses offered by the colleges affiliated to the University. The details of the affiliation fee for various courses payable by the Colleges could be found in Statute 24 and 24(a)(b) which were made applicable from the academic year 1988-89. The prescription of the affiliation fee as it stood and applicable from the academic year 1988-89, though appears to have been revised subsequently, over a period of time periodically but this Court finds that the revision, have not been reflected in the statute. In any event, unless the revised statute receives the assent from the Chancellor in terms of clause 3 of section 31, the Statute becomes unenforceable in law. As contended by the learned counsel for the petitioner merely because the affiliation colleges or the petitioner herein did not protest in respect of the earlier revisions, it cannot be gainsaid that such acquiescence would confer legal sanctity to the revisions, which were otherwise liable to be declared as illegal in terms of the Scheme of the Act.
- Be that as it may, no plausible explanation has been given by the University for not obtaining the consent from the Chancellor for the subject revision or for that matter, no possible reason could make the impugned revision legal and valid. Unless or until the decision/ resolution of the Senate is assented to by the Chancellor of the University only then the amendment become legally enforceable. Assent by the Chancellor of the University is not to be regarded as an empty formality for the University to adopt a stand that in the past, revisions of affiliation fee were implemented and accepted by the colleges. The audacious stand taken by the University in this regard is apathetic reflection of its understanding of the scheme of the Act. It only showed that the University has been lulled into complacency having not faced any challenges in the past on this vital legal aspect. In the said circumstances, the impugned communication which seeks to enforce the unassented resolution of the Senate has to be necessarily discountenanced in law.
- As far as the decisions relied on by the learned Additional Advocate General in support of his various contentions touching different aspects of the matter are of no aid to advance the cause of the University for the following reasons.
(i) MANU/UP/0625/2004 (Vijay Singh & Ors v. State of Uttar Pradesh & Ors.)
The relevant paragraphs have been extracted supra which laid emphasis on the practical construction of a statute by interpreting the document by reference to the exposition it has received from the competent authority. The observation of the High Court are generic in nature and the same cannot taken to be a binding legal precedent to be followed universally when particular statutory provisions being relied upon by this Court and the contextual provisions do not suffer from any ambiguity calling for judicial interpretation nor the provisions suffer from the vice of vagueness providing scope for judicial construct of meaning of expression by embarking upon semantic exploration.
(ii) AIR 1966 SC 707 (Principal, Patna College, Patna and Ors. v. Kalyan Srinivas Raman)
The above decision also is in regard to the exercise of power by this Court, when two constructions are possible, while interpreting the regulation of the University. Such is not the case here and therefore, this decision is also not supportive of the sustainability of the action of the respondent University.
(iii) 2021 (2) SCC 564 A.P.J. Abdul Kalam Technological University and Anr. vs. Jai Bharathi College of Management and Engineering Technology and Ors.)
The above decision was relied on for the University stating that the power of the Syndicate is inherent and therefore, the revision of affiliation fee on the basis of its recommendation cannot be construed to be suffering from any legal infirmity. This Court is unable to be persuaded by the contention as the above decision was rendered in consideration of the legal context of that case. The power to lay down standards/norms for affiliation was specifically conferred on the Syndicate in the University Act therein. On the other hand, the power to propose any statute is specifically denied to the Syndicate in the present case. Therefore, citing the said case law, is misconceived.
- iv) 1977 (2) MLJ 403 (Sathya Rao and Ors. The University of Madras and Ors.)
The above decision was cited to emphasize the legal position that exercise of power under the subordinate legislation only if unreasonable and foreign to the purpose for which it was conferred, judicial intervention is called for. The power exercised towards recommendation of the revision of affiliation fee is reasonable and well within the framework of the Act. The contention and the case law may appear to be attractive, but the very legislation itself spelt out prohibition of exercise of the power by the Syndicate in the subject matter of the ‘list’, the said case law relied upon is to be rejected as being unhelpful to the cause of the University.
(v) AIR 1954 Calcutta 141 (Tapendra Nath Roy v. University of Calcutta)
The above case was cited for demonstrating that absolute compliance of procedure need not be insisted upon in every situation and there should be latitude and flexibility, particularly, in the matters of regular routine. This Court is also conscious that needless and purposeless rigidity need not be insisted upon in the realm of decision taken in the routine administrative matters. The controversy herein is not with regard to condonation of any minor infraction of any routine compliance, but with regard to the mandatory assent by the Chancellor ratifying the resolution of the Senate. The said contention of the University amounts to trivializing the sacrosanct requirement of the assent of the Chancellor in terms of Section 31(3) of the Act. Therefore, the reliance placed upon the Constitution Bench decision is to be rejected as being inappropriate legal precedent.
(vi) 2008(4) Madras Law Journal 538 (Dr.M.Ponnuswamy v. University of Madras) and
The above decision relied on was relating to service matter wherein it was held when the power of transfer of faculty provided for in the appointment order, no amendment of the Statute required at all. When a specific procedure has been provided in the statute for amendment, for revision of affiliation fee, there cannot be any argument that no amendment is required at all. This Court is unable to appreciate that such arguments are being advanced by drawing strength from the above citation which contention in the opinion of this Court should be rejected outright as without having modicum of application as to the core consideration of this Court.
(vii) 2006(3) CTC 1 ( University of Madras v. Dr.Maa. Selvaraasan & Anr.)
The above decision was relied upon to demonstrate that even in the absence of a statute, the Syndicate can always pass a resolution where no prohibition is contemplated in the University Act therein. This Court is once again not able to appreciate how the above case law could be taken into account, when there is a specific prohibition in the Act as regards the role of the Syndicate in the matter of revision of affiliation fee.
(viii) 1964 (77) LW 591 (University of Madras by its Registrar Vs. V.R.Nagalingam).
In the above case, it was held that when a competent body of the University passed a resolution as per its practise only to record resolution, no legal obligation is imposed on the body in that case, the Syndicate to record even a summary of the discussion on the resolution. But the Division Bench of this Court while observing as above, has also held that an unspeaking order may not be ex facie bad, but the presumption is rebuttable that a particular act has been done in the judicial spirit, that question will always have to be decided by the Courts.
(ix) 2011(5) CTC 421 Madras (Pooja Bagri v. The Registrar, University of Madras)
In regard to the above, this Court has no quarrel that every statute must be read as a whole harmoniously to serve the purpose of the Act. When the object of the Act is disclosed clearly in the statutory provisions, defining a particular role of the Syndicate on the subject matter in issue before this Court, the over stepping by the Syndicate would only make the ultimate decision by the University vulnerable to judicial intervention, as such transgression undermines the scheme of the very Act itself.
(ix) MANU/TN/2392/2008 ( Vivekanada Educatinal Society v. Pondicherry University) and (x) W.A.No.591 of 2009 (Senthil College of Education vs. The Vice Chancellor Pondicherry University) dated 27.02.2018.
The above two decisions have been cited for the purpose of highlighting that the University has power to revise the affiliation fee. As stated above in the beginning of the order, the issue in this case is not about the power of the University to revise the rates of affiliation fee to the affiliated colleges, the issue herein is the manner in which the power has been exercised and therefore, the reliance placed in the above two decisions is completely misplaced.
- To sum up that all the above decisions relied on by the learned Additional Advocate General for the University would have no legal impact on consideration of this Court with reference to the explicit provisions of the Act, the powers of the Senate, the Syndicate and various procedures delineated therein. In this case from the minutes of the meeting of the Senate dated 31.03.2006, it could be deduced that the resolution was passed apparently approving the revision of affiliation fee but in effect and in actuality, the Senate has perfunctorily adopted the approval of the Syndicate. Whether there was any discussion on the subject matter or not, is immaterial in the face of the dismal surrender of the authority of the Senate in favour of the Syndicate as demonstrated by the minutes of the meeting of the Senate dated 31.03.2006.
- Learned Additional Advocate General, during the course of his submission, also contended that the petitioner has not challenged the resolution of the Senate dated 31.03.2006 and what is challenged is only the consequential communication. This Court finds that such arguments have lost its legal significance for the simple reason that in the earlier round of litigation in W.P.(MD).No.7469 of 2016, the matter was considered and vide order dated 18.04.2016, the University was directed to consult the petitioner Association before taking a decision on the subject matter. In such circumstances, the cause of action for the petitioner to agitate their rights could only be from the part of action taken subsequent to the orders passed by this Court in the earlier litigation. In any event, when this Court holds that the resolution of the Senate is ex-facie illegal and non-est, such objections of the University may not merit serious consideration at this point of time.
- There is another contention raised on behalf of the petitioner as to the grant of temporary and permanent affiliation not contemplated in the Act or in the Statute. In fact, in their reply, the University has pointed out that Statute 28 provides for provisional recognition/affiliation. This Court is however, not inclined to give any legal finding on that aspect as the impugned action is being discountenanced on a mere substantive legal consideration, namely, that the source of the action which is impugned in the writ petition was non-est and unenforceable in law. In the said circumstances, whether there is any provision for grant of temporary or permanent affiliation is left open for future consideration.
- For all the above said reasons, the impugned order passed by the respondent University in Ref.No.CDC-1/Re.Affil.Fees/2016 dated 01.07.2016 is hereby set aside and the Writ Petition is accordingly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
- Government of Puducherry,
rep. By the Secretary,
Puducherry – 605 001
- Reserve Bank of India,
Fort Glacis, No.16,
Chennai – 600 001.
Pre-delivery order made in
W.P.(MD)No.16129 of 2016