IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition Nos.18 of 2001 and 1258 of 2006. Date of decision:29.05.2008. 1. CWP No.18 of 2001. Jagan Nath …Petitioner Versus Himachal Pradesh University …Respondent 2. CWP No.1258 of 2006. Jagan Nath …Petitioner Versus State of H.P. & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 CWP No.18 of 2001. For the Petitioner: M/s.Ramakant Sharma and Sanjeev Sharma, Advocates. For Respondent No.1: M/s.V.D. Khidtta & B.C. Negi, Advocates. For Respondent No.2: Mr.K.D. Shreedhar, Advocate. For Respondent No.3: Ms.Vivek Thakur, Additional Advocate General. CWP No.1258 of 2006. For the Petitioner: M/s.Ramakant Sharma and Sanjeev Sharma, Advocates. For Respondent No.2: M/s.V.D. Khidtta & B.C. Negi, Advocates. For Respondents No.1, 3: Mr.Vivek Thakur, Additional and 4: Advocate General. Dev Darshan Sud,J. This writ petition has been filed by the petitioner challenging the orders of supersession of 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 2 the Managing Committee of S.V.S.D.College, Bhatoli, in District Una. The Management was suspended by Notification dated 10th October, 1990 (Annexure-A) issued by the Himachal Pradesh University. It reads:- “NOTIFICATION” “Pursuant to the interim report submitted by Sh.B.K. Gowel, Director of Education & Sh.K.K. Bajaj, Dean-cum- Director, College Development Council regarding the situation prevailing in SVSD College, Bhatoli, the Vice- Chancellor H.P. University under powers vested in him has been pleased to decide as under:- I. that a detailed audit of the Boys fund and other relevant financial cases reported shall be got conducted by a special audit team to be detailed by the Director of Education. II. That a detailed Enquiry in all the allegations levelled against the Management and the Administration of the college shall be made by the Committee consisting of the following:- 1. Dr.Lokesh Koul, Dean of Studies- Chairman 2. Dr.Atma Ram, Jt.Director (Education) 3. S.D.M. Una 3 3 DR (Academic) shall assist the Committee. The Vice-Chancellor has further been pleased to decide that in order to facilitate the fair audit and thorough Enquiry, the present Management Committee is hereby restrained from functioning till the completion of the above enquiry and further decision taken by the Executive Council on it. Both the committees shall submit their report within 30 days.” Subsequently by Notification dated 15th December, 1991 (Annexure R-2/1) the Management was superseded. It is not disputed that these Notifications were implemented and that till date no report(s) as contemplated by the orders of supersession have been communicated to the Managing Committee of the College and that it is still being managed by the Administrator who is the Deputy Commissioner having been appointed as such. A period of more than 18 years has elapsed but the report, if any, has not seen the light of the day. There are numerous communications on the record addressed by the President of the Committee to the Vice Chancellor requesting him that the order of supersession be withdrawn and the Society be allowed to manage the college, but of no avail. 4 4 The reply of the University indicates that a prayer has been made calling upon the petitioner to provide upto date record of the Society alongwith list of valid Members of the Society to the Deputy Commissioner, Una, so as to enable him to hold elections to the offices of the President, Vice President and General Secretary under the guidelines of the University so that the Management Committee can be constituted in terms of the requirement of the Himachal Pradesh University First Ordinance Clause 38.5.B(f)(i). I am not going into the other disputes regarding the factual matrix as the statutory power invoked in this case, does not empower the University to extend the period of supersession beyond three years. The power to supersede as provided in the Ordinances is reproduced here-in-below: “(iv) in case the Executive Council is satisfied in accordance with the Statutes and these Ordinances that the affiliation of the college/institution or its recognition for any new degree or in an additional subject deserves to be suspended or withdrawn, and is further of the opinion that such suspension or withdrawal will cause undue hardship to the students of the college or an avoidable diminution in the availability of facilities for higher education in the locality, or will 5 5 prevent proper utilization of the grants received by it from the State Government, Government of India, the University Grants Commission or any other national or international organization or foundation; or in case the Management decides to close down the college or any Section thereof, and the Executive Council is of the opinion that such closure will cause any of the consequences mentioned above, the Executive Council with the prior approval of the Chancellor, may for a period not exceeding three years, supersede the Management and appoint an Administrator or an ad hoc committee, who or which shall perform, exercise and discharge all functions, powers and duties of the Management in relation to the college and the funds properties and assets standing to its credit or vested in it or endowed for its benefit; Such Administrator or ad hoc committee shall have no power to sell, mortgage or otherwise transfer any of lease property vested in or endowed for the benefit of the college except by way of lease not operating beyond the period of operation of the order of the Executive Council; but save as aforesaid, the college including its buildings, premises and equipment as well as any property vested in or held by it or endowed for its benefit shall, for purposes of Management of the college and for utilization of the 6 6 income from such property for the said purpose, vest in the Administrator or an ad hoc committee, who or which shall be a corporation sole, or as the case may be, a body corporate having perpetual succession and may sue, and be sued in his or its name; Notwithstanding anything else contained in this chapter, the Executive Council if it is satisfied that it is necessary for it to act on account of mismanagement, or closure or threatened or likely closure of a college/institution or for any other reason, may for reasons to be reduced in writing, supersede the management of a college/institution appoint as ad hoc committee or Administrator to manage the college/institution; Provided that such a resolution shall be effective only after it has received the approval of the Chancellor. Provided further that maximum period of 3 years as provided herein above for the supersession of the Managing Committees of the Non- Govt.Colleges affiliated to the University shall not apply in the cases of those Colleges which have not constituted its Managing committees as required under Ordinances prior to their supersession. It shall also not be applicable for those Management Committees which are not functioning in accordance with the provisions of the Act/Statutes/Ordinances of the 7 7 University and where membership of office bearership of the Society registered under Societies Registration Act XXI of 1860 is in dispute and has been challenged in the Court of Law or where the Management Committee has failed to raise funds as required under rules and regulations, or misappropriate funds, or wherever the management Committee itself has expressed its inability to run the College” The provision has been reproduced in extenso as the power for supersession is contained herein. The Ordinance cannot be read or interpreted to mean that the power of keeping the management under suspension can be exercised in a manner so as to keep the management of the Society managing the College out for an indefinite period. It is undisputed before me that the case of the petitioner is not covered by the proviso which would make outer limit of three years inapplicable to the petitioner. The powers under the Ordinance cannot be read in a manner which deprives the petitioner of his basic and fundamental right(s) to property and to manage its Educational Institution. It is true that no Educational Institution can function outside the statutory conditions imposed upon it but dictatorial powers cannot be vested in any authority to keep the management of the Society out of its right to manage an Educational Institution. The 8 8 reply of the University itself suggests that no case seems to have been made out against the management and that is why a prayer is made in the following terms: “In view of the submission made above it is prayed that this Hon’ble Court may pass direction to the Petitioner to provide the upto date record of the society alongwith list of valid members of the society to the Deputy Commissioner, Una enabling him to hold the election to the offices of President, Vice-President and General Secretary under the observership of the University so that the Managing Committee of S.V.S.D. college Bhatoli could be constituted as per requirement of H.P. University First Ordinances 38.5.B(f)(i) copy of which has been annexed as per Annexure R-xiv/-. This would be in consonance with the orders passed by this Hon’ble High Court in CWP No.1026 of 1993 dated 27.9.93, copy of which is annexed as Annexure R-XV.” Learned counsel appearing for the respondents have urged that the Notifications have been passed in accordance with law and as the petitioner has failed to disclose that there is no existing Society or they have rectified all the shortcomings as have been noticed in the two Notifications, the petitioner cannot ask for restoration of the management of the Educational 9 9 Institution to the Society. This argument deserves to be rejected out right. From 1990 the management has been restrained from functioning. The respondents cannot claim a vested right to continue with the control of the Educational Institution. Of-course, if it is found that the conditions of the affiliation or other mandatory requirement of law including the statutes and ordinances of the Himachal Pradesh University have been violated, the respondents are entitled to take such action as they are entitled to in law. But, surely such determination has to be made by a rudimentary compliance of the principles of Natural Justice that is to say an opportunity having been given to the offending/petitioner Society to show cause as to why action should not be taken. Merely stating that there is some non-compliance by the College is not sufficient compliance of a statute or principles of Natural Justice. As noticed, no report has been given to the petitioner to show as to why action in law be not initiated against them. In the circumstances, I do not find any justification in the respondents continuing with the management of the College. The writ petition is, therefore, accepted. Annexures-A and R-2/1 are quashed and set aside. A direction is issued to the respondents to hand back the management to the Society which was managing the College prior to its being taken over by the respondents. 10 10 Having passed this direction, I must now also consider the second writ petition being CWP No.1258 of 2006 challenging the Notification (Annexure P-17) filed therein whereby the College has been taken over by the State of Himachal Pradesh. The Notification reads:- “Government of Himachal Pradesh Department of Higher Education No.EDN-A-Ja(2)-2/2006 Dated Shimla-2, the 14th September, 2006. “NOTIFICATION” “The Governor, Himachal Pradesh is pleased to order the taking over of Shri Vishnu Sanatan Dharam College, Bhatoli, Distt.Una with immediate effect. This take over is subject to final decision of the CWP 18/2001 pending in the Hon’ble High Court, Himachal Pradesh and any other matter pending before any court/tribunal Further, the terms and conditions regarding taking over the services of the personnel and the assets, liabilities etc. will be notified separately.” Having allowed the writ petition No.18 of 2001, this writ petition must also be allowed and the Notification (Annexure P-17) is quashed and set aside. Necessary consequence of the order would be to restore the management immediately to the Society 11 11 which is managing the College prior to its having been taken over by the respondents. However, because of the intervening circumstances immediate restoration of the management cannot be granted. Learned counsel appearing for the respondents submit that after the issuance of the Notification (Annexure P-17), the staffing pattern, pay scales and other benefits granted to the employees are at par with the Government scales etc. and in case the order is implemented it would result hardship to them. It has also been submitted that it is paramount in the interest of the students that the State should continue to control and manage the College as it has improved the academic excellence and working of the College. It would be trite for me to observe that the respondents are also responsible for the state of affairs which has been precipitated in the year 1990. What stopped the respondents from furnishing its report and taking further action against the petitioner-Society, is not clear from the record. It is, of-course, true that the interest of the students should not be allowed to suffer. The following directions are, therefore, issued:- (a) That the petitioner shall immediately supply the particulars as asked for by the University in its reply and as reproduced hereinabove to the University. 12 12 (b) The petitioner will further supply such other particulars as required by the Ordinances of the University necessary for affiliation etc. considering that a period of more than 18 years has elapsed since the management was taken over. (c) The management of the present college shall be handed back to the Society at the end of the current academic session 2008- 2009 so that the interest of the students do not suffer. This, of-course, will be subject to the petitioner Society satisfying all the mandatory requirement of the Statutes, Ordinances and Law. (d) The Notification taking over management of the College having been quashed will not stand in the way of the Government in acquiring the college etc. or taking over its management in accordance with law, if so required. (e) The pay scale and conditions of the service of the staff of the college as registered shall be protected and the respondents shall ensure that the staff is not put to any disadvantage or material/ financial loss. (f) In the interregnum, before the college is handed back to the management of the 13 13 Society, an eminent educationist not below the rank of Professor or Retired Professor who has performed active academic duty in the University and a person with administrative capability not being below the rank of the Registrar or Controller of Exams having such experience in the University, shall oversee the management of the college and ensure the smooth functioning of the Educational and Administrative functioning of the college. The entire staff of the college shall be answerable to these two persons who shall exercise administrative and financial control and maintain a detailed report of the same. Both these writ petitions are disposed of in the light of the directions issued above. May 29, 2008. (Dev Darshan Sud) (aks) Judge.