1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7128 of 2011 M.P.(MD).No.1 of 2011 Melvin Institute of Health Science, rep. By its Co-ordinator, S.Albert Michelin Raja 71-A Salai Street, Ramanathapuram. ... Petitioner -Vs- 1.The Director, Directorate of Distance Education, Mother Teresa Women's University, Kodaikanal, Dindigul District. 2.The Registrar, Mother Teresa Women's University, Kodaikanal, Dindigul District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned communication issued by the first respondent in letter No.GC01/MTWU/DDE/2011, dated 30.05.2011, quash the same and consequently, direct the respondents to strictly adhere to the terms and conditions of the Memorandum of Understanding, dated 26.08.2009. For Petitioner : Mr.D.Sasikumar For Respondents 1 and 2 : Mr.Udayakumar for M/s.D.Geetha O R D E R Challenge in this writ petition is to an order, dated 30.05.2011, of the Director, Directorate of Distance Education, Mother Teresa Women's University, Kodaikanal, addressed to the Co-ordinator, Melvin Institute of Health Science, Ramanathapuram, petitioner herein, informing him, not to give any new admission for the first year under Graduate degree and Diploma Courses under Extension Learning Programme for the academic year 2011-12, until further intimation is issued from the University. Consequently, the Institute has sought for a direction to the respondents to strictly adhere to the terms and conditions of the Memorandum of Understanding, dated 26.08.2009. 2. Melvin Institute of Hotel Management and Catering Technologies, has been running an Industrial School with the approval of the Commissioner of Employment and Training Department. The Institute has applied for opening, an Off Campus Study Centre, referred to as "Study Center of Extension Learning Program" to the Mother Teresa women's University. After inspecting the institute, the respondent University has agreed to have a study center in the petitioner's Institute, in order to offer a Diploma course in Health Assistance. The petitioner has spent https://hcservices.ecourts.gov.in/hcservices/ 2 considerable expenses for putting up all equipments. After receiving necessary recognition fee and security deposit, by order, dated 19.08.2009, the University has informed that the petitioner's Institute has been identified as Off Campus center of the University. A Memorandum of Understanding was also signed on 26.08.2009, between the parties and at the time of execution of the said Memorandum of Understanding, the petitioner has paid Rs.50,000/- as security deposit (refundable) and Rs.25,000/- as recognition fees (Non-refundable), by way of demand drafts. 3. The petitioner has further submitted that the as per terms and conditions of the Memorandum of Understanding, dated 26.08.2009, the University shall have the exclusive right to prescribe the qualification eligible for admission of the candidates, fix fees for the course conduct examination, evaluate, declare results and award diploma in Health Assistance. Theory and practical classes were allowed in the Institute. The Memorandum of Understanding shall be in force for three academic years, normally from June 2009 to May 2012 (three batches) and it may be renewed thereafter by mutual consent. The agreement was entered into between the parties in the month of August' 2009 and therefore, the Institute was not in position to admit any student for that academic year. However, the Institute admitted students in the Diploma course for the academic year 2010-2011 and the students have completed the one year course successfully. In the academic year 2011-2012, when the Institute was taking efforts to admit the students, to its shock, the University has issued the impugned communication, dated 30.05.2011, not to admit the students. 4. On the abovesaid pleadings, Mr.D.Sasikumar, learned counsel for the petitioner, who assailed the correctness of the communication, submitted that due to the arbitrary action of the University, the petitioner was prevented from admitting any students in the academic year 2011-12. No show cause notice or opportunity was given to the Institute before passing the impugned order and therefore, there is a violation of principles of natural justice. 5. Learned counsel for the petitioner further submitted that though a Memorandum of Understanding has been entered into between the parties, wherein, the University can terminate the agreement only on the expiry of the academic year and that too, after affording a reasonable opportunity to the Institute, the unilateral decision of the University reflects arbitrariness. He also submitted that the University has no exclusive right to suspend the course, without assailing any reasons. 6. In addition to the above, placing reliance on a decision of this Court in D.A.V.Educational Trust v. RD, Nat. Council for TESR Committee, reported in 2010 (2) MLJ 1015, learned counsel for the petitioner submitted that the impugned communication, withdrawing permission to admit the students, without giving any personal hearing, is contrary to the judgment and therefore liable to be set aside. 7. On the basis of the counter affidavit filed by the University and the supporting documents thereto, Ms.D.Geetha, learned counsel for the respondents-University made a preliminary objection to the maintainability of the Writ Petition, contending inter alia that even assuming that there is a violation of any terms and conditions of the Memorandum of Understanding, dated 26.08.2009, without admitting for argument sake, a Writ for enforcement of contractual terms would not lie and therefore, the same is liable to be dismissed in limini. https://hcservices.ecourts.gov.in/hcservices/ 3 8. Without prejudice to the above, she submitted that Mother Teresa Women's University is a statutory Body created by Mother Teresa University Act 1984. As per the said Act, the Executive Council is the Supreme Body, which takes the ultimate decision with regard to the functions and programs of the University. All education related programs, Courses including Extension Learning Programs have to be approved by the Executive Council. 9. Learned counsel for the University has further submitted that the petitioner-Institute has approached the 2nd Respondent to open an off- campus study Centre to offer Diploma Course in Health Assistance, subject to the terms and conditions. The University has entered into a Memorandum of Understanding, with the Petitioner on 26.08.2009 to open an off campus centre at the Petitioner's Institute, offering Diploma Course in Health Assistance only to women students. The opening of the Centre in the Petitioner's Institute was reported to the Executive Council in its meeting held on 14.12.2009. In the said meeting, the Executive Council has approved the same, but same was to be converted into Distance Learning Program. Later, in the Executive Council Meeting, dated 02.03.2010, it was resolved to continue the Off Campus Diploma Courses through Part-time mode as Study Centre of Extension Learning Program. 10. Learned counsel for the University further submitted that by letter No.l84/H2/2010T, dated 05.01.2010, the Department of Higher Education, though informed the Registrars of all the Universities that the Universities should stop conducting regular UG/PG Program in the name of Collaborative Institutions of the Universities, outside the jurisdiction of the respective Universities and demanded an action taken report on or before 31.01.2010. Along with the said Letter, a Letter of the University Grants Commission, dated 17.04.2009 was also enclosed. In the said letter, the UGC had stated that in the light of the decision of the Supreme Court in Prof. Yashpal v. State of Chattisgarh reported in 2005 (5) SCC 420, the State Universities shall not operate beyond the territorial jurisdiction of the concerned State in the form of Off- Campus/Study Centres, affiliated Colleges and Centres, operating through branches, etc. The said letter further requested the Secretary, Department of Higher Education to stop all the State/State Private Universities in the State from operating beyond the territorial jurisdiction of the State in any manner, either in the form of Off Campus/Study Centres, affiliated Colleges and the Centres operating through Franchises. 11. She further submitted that in view of the said Letter, the Executive Council, in its meeting held on 08.12.2010, decided to withdraw the permission to renew the Study Centres through Distant Learning Program and Extension Learning Program. In view of the said resolution, the University is not in a position to continue the Extension Learning Program or permit any new admissions under Extension Learning Program. Therefore, in the abovesaid circumstances, by letter, dated 20.05.2011, it was directed that all the Extension Learning Program Study Centres shall not give any new admission for the 1st year Undergraduate and Diploma Courses under Extension Learning Program for the forth-coming academic year 2011-2012, until further information is received from the University. 12. Learned counsel for the University further submitted that the University has also sought for an advice from the Department of Higher https://hcservices.ecourts.gov.in/hcservices/ 4 Education, Government of Tamil Nadu, whether permission may be given to continue the 2nd and 3rd year Programs, conducted by the University, within its Jurisdiction, as done by Manonmaniam Sundaranar University and Tamilnadu Open University. 13. Inviting the attention of this Court to Section 4 of the Amended Act 30 of 2002, introducing Sub-Section (gg) to Section 2 of the Act, learned counsel for the University further submitted that the University Area, means the area comprising the revenue Districts of Dindigul and Theni. Since the Petitioner's Institute is falling outside the territorial jurisdiction of the University, it has been resolved to discontinue the Extension Learning Programs initiated in collaboration with the Petitioner's Institute. 14. She also drew the attention of this Court to Clause 10 of the Memorandum of Understanding and contended that even during the tenure of the agreement, the University has got every right to terminate the course and if at all, any dispute arises between the parties, in respect of the matters covered by the agreement, then as per Clause 11 of the said agreement, it has to be decided only by the Committee constituted by the Executive Council of Mother Teresa Women's University and the decision of the Committee shall be final. According to learned cousnel, having agreed to the said clauses, it is not open to the Petitioner to challenge the impugned communication, by way of Writ Petition under Article 226 of the Constitution. 15. According to the learned counsel, the decision not to permit the petitioner's Institute to admit new students for the academic year 2011-12, has been taken in the abovesaid circumstances, following the decision of the Apex in Prof. Yashpal's case and the instructions of the Department of Higher Education, Government of Tamil Nadu and therefore, there is no arbitrariness and violation of the principles of natural justice. 16.Heard the learned counsel for the parties and perused the materials available on record. 17. Mother Teresa Women's University is a statutory Body created by Mother Teresa University Act 1984. As per Amended Act 30 of 2002, Sub- Section (gg) has been inserted to Section 2 of the Principal Act, which defines "University Area" means the area comprising the Revenue Districts of Dindigul and Theni. Section 5 of the Principal Act has been amended as follows: "5. College not to be affiliated to any other University:- No college within the University area shall be affiliated to any University other than the Mother Teresa Women's University." 18. Material on record shows that pursuant to the judgment in Prof. Yashpal's case, the University Grants Commission, New Delhi, has addressed a letter, dated 17.04.2009, to the Secretary, Department of Higher Education, Government of Tamil Nadu, Chennai, stating that several State Universities/State Private Universities, established by the State Governments, have opened off-campuses, study centres and have also created franchise in the name of distance education programmes, outside the State. This action on the part of the State Universities or Private Universities established by the State Governments, beyond the territorial jurisdiction of the respective State Governments is not https://hcservices.ecourts.gov.in/hcservices/ 5 permissible in the light of observations made by the Supreme Court in Prof. Yashpal's case. Quoting the abovesaid judgment of the Supreme Court, the Secretary, University Grants Commission, New Delhi, has further observed that establishing off-campus/study centres, affiliated colleges and the centres operating through franchises, beyond the territorial jurisdiction of the concerned State, has resulted in an anomalous situation, causing hardship to the community at large and in such circumstances, directed the Secretary, Department of Higher Education, Government of Tamil Nadu, Chennai, to take immediate action on the following: "(i) To take suitable steps for amending the existing Acts made so us to bring the same in conformity with the observations made by the Hon'ble Supreme Court of India in the case of Prof.Yash Pal and State of Chattisgarh. This should be adhered in all future cases. (ii) To stop all the State/State Private Universities in the State from operating beyond the territorial jurisdiction of your State in any manner, either in the form of off-campus/study centre/affiliated college and the centres operating through frachises." 19. The judgment of the Supreme Court in Prof. Yashpal's case has been delivered on 11.02.2005. Memorandum of Understanding has been entered into between the Registrar, Mother Teresa Women's University, Kodaikanal and the Co-ordinator, Melvin Institute of Health Science, Ramanathapuram, petitioner herein on 26.08.2009, to open an off campus centre at the Petitioner's Institute, offering Diploma Course in Health Assistance only to women students, subject to the terms and conditions. As per the terms and conditions, the period of academic year is from 1st June' 2009 to 31st May' 2012. The agreement shall be in force from June' 2009 to May 2012 (3 batches) and may periodically be renewed by mutual consent, considering the overall performance of the second party, the petitioner-Institute. As per the terms and conditions of the Memorandum of University, during the tenure of this agreement, the University has got every right to terminate, on the expiry of that academic year, if the action of the Institute is found not satisfactory. Prior to such decision, a reasonable opportunity shall be given to the Institute to explain and the explanation shall be considered by the University. Both the parties have agreed that dispute, if any, arising between the parties, in respect of matters covered by this agreement, the same shall be decided only by the Committee constituted by the Executive Council of Mother Teresa Women's University and the decision of the Committee shall be the final. 20. Material on record further disclose that the Principal Secretary to the Government, Higher Education (H2) Department, in his letter No.184/H2/2010-1, dated 05.10.2010, has instructed the Registers of all Universities (under the aegis of Higher Education Department), to take necessary action to stop conducting regular UG/PG programme in the name of collaborative institutions of the Universities outside the jurisdiction of the respective Universities. An action taken report has been directed to be sent to the Government on or before 31.01.2010. 21. The petitioner's Institution, which was initially granted permission to take have an off-campus programmes in the institution, by resolution, dated 02.03.2010, has been converted into the study center of https://hcservices.ecourts.gov.in/hcservices/ 6 Extension Learning Programmes. Despite the instructions contained in the letter of the Principal Secretary to the Government, Department of Higher Education, Chennai, to stop conducting regular UG/PG programme in the name of collaborative institutions of the Universities outside the jurisdiction of the respective Universities, the second respondent- University, has resolved to permit off-campus programme, viz., Diploma course through part-time mode, conducted in the petitioner's Institution under the study centre of Extension Learning Programme in May' 2010. 22. Though the learned counsel for the petitioner contended that in Prof. Yashpal's case, there is no direction to close down off- campus/study centres, situated within the State and in such circumstances, the decision of the Department of Higher Education, Government of Tamil Nadu, is not in confirmity with Prof. Yashpal's case, and consequently, the action of the University in issuing the impugned communication, is also arbitrary, this Court is not inclined to adjudicate the correctness of the same, in view of the letter, dated 06.01.2010 of the Principal Secretary to the Government, Department of Higher Education, Chennai, addressed to the Registers of all Universities (under the aegis of Higher Education Department), which has not been challenged. The letter reads as follows:- "It is brought to the notice of the Government that some Institutions, in the name of collaborative institution of Universities are conducting regular degree courses outside the jurisdiction of the Universities in the State. In this connection, I am to state that conducting classes for regular UG/PG courses through collaborate institutes outside the jurisdiction of Universities are against the respective University Act. 2. I am therefore to request you to take necessary action to stop conducting regular UG/PG Program in the name of Collaborative Institutions of the Universities, outside the jurisdiction of the Respective Universities. The action taken report in this matter may be sent to the Government on or before 31.01.2010." 23. There is a clear direction from the Principal Secretary to the Government, Department of Higher Education, Chennai, to stop conducting regular UG/PG Program in the name of Collaborative Institutions of the Universities, outside the jurisdiction of the Respective Universities and then, action taken report in this matter, should be sent to the Government on which the specified date. 24. As stated supra, as per Section 2(gg) of the Mother Teresa University Act, 1984, as amended by Act 30 of 2002, "University Area" means, the area comprising the Revenue Districts of Dindigul and Theni and therefore, only colleges and institutions situated within the territorial jurisdiction of the University alone can get affiliated to the said University. Melvin Institute of Health Science is admittedly located in Ramanathapurm District, which is outside the territorial jurisdiction of the Mother Teresa Women's University and therefore, the decision taken by the University to discontinue the Extension Learning Programme, conducted in collaboration with the petitioner's institution cannot be said to be without jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 7 25. Where there is a patent error in entering into a Memorandum of Understanding with the petitioner's Institution, which is located outside the University area, as stated supra, the action of the University in instructing the petitioner's Institute, not to admit any students for the academic year 2011-12, following the directions given by the Principal Secretary to the Government, Department of Higher Education, Chennai, cannot be said to have been issued, without any basis. 26. No doubt, the petitioner's Institution has not been given any show cause notice or opportunity, before sending the impugned communication, but even assuming that any notice is given, that would not improve the case of the petitioner, for the reason that admittedly, it is located outside the territorial jurisdiction of the Mother Teresa Women's University. In such circumstances, this Court is of the view that the principles of useless formality theory can be applied. 'Useless formality theory' has received consideration of the Apex Court in M.C.Mehta Vs. Union of India reported in [1999] 3 SCR 1173, wherein, it was observed as under: "Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch v. Aberdeen Corporation: (1971) 2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn v. Keele University: (1971) 2 All ER 89; Cinnamons v. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Ealing Magistrates' Court, ex p. Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be 'demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMohan (1987 (1) All ER 1118, CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is 'real likelihood-not certainty- of prejudice'. On the other hand, Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin, Megarry, J. in John v. Rees (1969 (2) All ER 274) stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the 'useless formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed https://hcservices.ecourts.gov.in/hcservices/ 8 that 'convenience and justice are often not on speaking terms'. More recently, Lord Bingham has deprecated the 'useless formality theory' in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article 'Should Public Law Remedies be Discretionary?" 1991 PL. p.64). A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foukes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K.Sharma [(1996) II LLJ 296 SC], Rajendra Singh v. State of M.P. [AIR 1996 SC 2736] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. We do not propose to express any opinion on the correctness or otherwise of the 'useless formality theory' and leave the matter for decision in an appropriate case, inasmuch as the case before us, 'admitted and indisputable' facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J." 27. Though the learned counsel for the petitioner contended that in Prof. Yashpal's case, there was no such direction by the Supreme Court to close down off-campus/study centers, of the University, within the State of Tamil Nadu, it is the case of the Mother Teresa Women's University that their decision has been taken pursuant to the letter of the Principal Secretary to the Government, Department of Higher Education, Chennai. In the absence of any challenge to the said letter, dated 06.01.2010, this Court cannot adjdudicate