FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Jankalyan Bahuuddeshiya Sevabhavi Sanstha's Global B.C.A. College, Kingaon, Taluka Ahmedpur, District Latur, Through its Secretary, Hemant S/o. Ambadas Gulave, Age 33 years, Occ. Service. R/o. Kingaon, Taluka Ahmedpur, District Latur. .. PETITIONER VERSUS 1] The State of Maharashtra through its Secretary Higher and Technical Education Department, Mantralaya, Mumbai. 2] The Director of Higher and Technical Education, Maharashtra State, Pune, 3] The Swami Ramanand Tirth Marathwada University Vishnupuri, Nanded, District Nanded, Through its Registrar. .. RESPONDENTS. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 Mr. S.S. Thombre, Advocate for petitioner. Mr. K.M. Suryawanshi, Assistant Govt. Pleader for respondent No.1 and 2. Mr. R.V. Ghuge, Advocate for respondent No.3. CORAM :- D.B. BHOSALE & S.B. DESHMUKH, JJ. DATE :- 3rd AUGUST, 2011. ORAL JUDGMENT [ PER D.B. BHOSALE, J.] :- 1] Heard learned counsel for the parties. 2] Rule. Rule made returnable forthwith. By consent of parties, heard finally at the stage of admission. 3] The petitioner institution in this writ petition under Article 226 of the Constitution of India, is seeking direction to respondent No.3, to allow them to admit students in B.C.A. Course for the academic year 2011-12. Further, they have challenged the letter dated 27/5/2011 issued by respondent No.3, stating that the petitioner shall not start admission process if they do not appoint a full time/qualified principal. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 4] The petitioner - institution claims that they had approached this court by way of Writ Petition No. 8592/2010, seeking the relief, as prayed for, in the present writ petition. That writ petition was disposed of and the petitioners were allowed to admit students, subject to giving an undertaking that they will fill up the post of permanent/full time principal before the end of academic session 2010-2011. In view of this undertaking, respondent No.3 – University, issued a letter dated 27/5/2011. As a matter of fact, by this letter, the University has simply reminded the petitioner of the undertaking given by them, in pursuance of the order dated 18/10/2010 passed in W.P. No. 8592/2010, with further rider that if they do not comply with the undertaking, the University will not allow the petitioners to admit students. 5] The petitioners claim that this order ( dated 18/10/2010) was passed in view of the judgment delivered by the Division Bench of this at Nagpur, in W.P. No. 2216/2006. That order was challenged before the Supreme Court by different colleges. In all the SLPs filed by different colleges, leave was granted and the appeals were allowed by the Supreme Court vide its judgment and order dated 28/3/2011. It would be relevant to reproduce the order passed by the Supreme Court, which reads thus :- FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 “Leave granted. Heard learned counsel for the parties. These Appeals have been filed against the impugned judgment and order dated 03rd December, 2008 passed by the High Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No.2216 of 2006. At the very outset we may note that in fact there was no petition before the High Court on which the impugned order was passed. The High Court took suo motu action on the basis of some information which has not been disclosed in the impugned order. The cause title in the impugned judgment reads: "Court on its own motion vs. State of Maharashtra through its Secretary, Education Department." None of the colleges in respect of which the impugned order was passed were made respondents, nor was notice issued to them, nor were they heard by the High Court. To say the least, this was a strange procedure adopted by the High Court. In our opinion, such suo motu orders, without even a petition on which they are passed, are ordinarily not justified nor sustainable. Ordinarily, there must be a petition on which the Court can pass an order. In our opinion, the High Court was not justified in taking suo motu action in this case. Judges must exercise restraint in such matters. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 Moreover, we have perused the impugned order and we are of the opinion that the directions contained in paragraph 7 of the impugned judgment were wholly unwarranted as they amount to judicial legislation. It appears that many private unaided Degree Colleges in Maharashtra did not have permanent Principals, and this is what motivated the High Court to pass the impugned order. By the impugned order, the High Court has directed that if the colleges fail to fill in the post of Principal by 31st May, 2009, the University will issue orders in the first week of June, 2009 prohibiting admissions in the Colleges concerned. In our opinion, no such direction could have been validly given by the High Court. If there is no permanent Principal, obviously the Acting Principal shall officiate as Principal, but that does not mean that in the absence of the permanent Principal, admissions to the college should be prohibited. There is no statutory rule that in the absence of a permanent Principal admissions in the Colleges cannot be made. Thus, the High Court has indulged in judicial legislation, which is not ordinarily permissible to the Courts vide Divisional Manager, Aravali Golf Club & Another vs. Chander Hass & Another (2008) 1 SCC 683. Also, none of these Colleges were made parties before the High Court, and hence the aforesaid direction is violative of the principles of natural justice. Accordingly, we allow these appeals and FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 set aside the impugned order of the High Court. No costs. However, we direct that the process for filling up the posts of Principal may continue in accordance with law, and should be done expeditiously. 6] From bare perusal of the order passed by the Supreme Court, we are satisfied that this petition deserves to be allowed in terms of prayer clause (B), which reads thus :- “By issuing writ of mandamus or any other writ, order or direction in the like nature, the respondent No.3 may kindly be directed to allow the petitioner to admit the students for the BCA Course for the academic year 2011-2012 and for that purpose issue necessary orders.” [ii] In so far as the undertaking given by the petitioners is concerned, in the facts and circumstances of the case, we are inclined to extend the time granted to appoint a full time/permanent/qualified principal upto 31st of December, 2011. It is needless to observe that it is mandatory for every institution to have a full time/qualified principal. [iii] If the petitioners do not appoint full FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5682 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 time/permanent/qualified principal within the extended time, it will be open to the University to take appropriate action against the petitioners/institution, in accordance with law, after following the due procedure. Rule is made absolute in aforesaid terms. No costs. An authenticated copy of this judgment and order be given to the parties, to act upon. [S.B. DESHMUKH,J.] [D.B. BHOSALE, J.] grt/-