HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1777 of 2009 (M/S) Swami Rama Institution of Education … Petitioner .. Versus State of Uttarakhand & others … Respondents Mr. Ravi Babulkar, Advocate for the petitioner. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand/respondent no. 1. Mr. J.P. Joshi, Advocate for respondent nos. 2, 3 and 4. Mr. S.S. Chauhan, Standing Counsel for Union of India/respondent no.5. Ms. Sangeeta Miyan, Advocate holding brief of Mr. Sudhir Singh, Advocate for respondent no. 6. 17th December, 2009 Hon’ble Sudhanshu Dhulia, J. Heard learned counsels for the parties. The petitioner is an institute which is run by a trust. According to the petitioner, this institute runs a B.Ed. course for which recognition has been granted to it by the National Council for Teacher Education. It is the case of the petitioner that once such a recognition has been granted, it is sufficient proof of the fact that the petitioner has the eligibility and the qualifications to run such an institute and the affiliation with an university for grant of a degree is a mere formality. Learned counsel for the petitioner Sri Ravi Babulkar is relying upon clause (6) of Section 14 of the National Council for Teacher Education Act, 1993 which says that since the petitioner has already been granted recognition under Section 14 (6) and such a communication has been received by the university, it is the mandatory duty of the university to grant affiliation to the institute under Section 14 (6) (a). Section 14 of the National Council for Teacher Education Act, 1993 reads as follows : 2 “14. Recognition of Institutions Offering Course or Training in Teacher Education. – (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations : Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of sic months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee. (2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed. (3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall, - (a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that if fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or 3 (b) if it is of the opinion that such institution does not fulfill the requirements laid down in sub- clause (a), pass an order refusing recognition to such institution for reason to be recorded in writing : Provided that before passing an order under sub- clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course of training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (6) Every examining body shall, on receipt of the order under sub-section (4), - (a) grant affiliation to the institution, where recognition has been granted; or (b) cancel the affiliation of the institution, where recognition has been refused.” Learned counsel for the university Sri J.P. Joshi, on the other hand, states that on the peculiar facts and circumstances the university is not in a position to grant affiliation to the petitioner. His primary objection is that H.N.B. Garhwal University has become a central university w.e.f. 15.1.2009, vide ordinance dated 15.1.2009, which has 4 since become an Act known as the Central Universities Act, 2009 and, therefore, the Registrar of the university has rightly rejected the request of the petitioner for granting affiliation to the petitioner vide order dated 10.6.2009 (annexure no. 5 to the writ petition). This is the order which has been presently impugned in the writ petition. The impugned order says that the issue relating to affiliation of the petitioner institute with the H.N.B. Garhwal University was recommended and sent for approval of the Chancellor who is His Excellency Governor of Uttarakhand vide letter dated 17.12.2008. However, since the university has been declared a Central University vide an ordinance w.e.f. 15.1.2009, the Government vide its letter No. 90/xxiv (6)/09/ “Uttarakhand Shashan, Uchha Siksha” dated 17.4.2009 has returned the said proposal back to the university. The Registrar of the H.N.B. Garhwal University further states that in view of Section 4 (c)/ Section 4 (f)/ Section 46 (II) after 15.1.2009 only such institutes will be affiliated to the university who were already affiliated to the university prior to 15.1.2009 and there is no provision in the Central Universities Act, 2009 under which a fresh affiliation can be granted to the petitioner. Therefore, the matter cannot be forwarded to the Chancellor for affiliation. In effect, the application for affiliation to the H.N.B. Garhwal University of the petitioner institute has been rejected. The provisions of law relied upon by the university while rejecting the application of the petitioner are absolutely irrelevant for the present purpose. This is being said as in the impugned order of the university authorities, dated 10.6.2009, a reference has been made of Section 4 (c) / 4 (f) /46 (2) of the Central Universities Act,2009. Section 4 (c) of the Central Universities Act reads as follows : 5 “4. Effect of establishment of Universities. – (a) …. (b) …. (c) all rights and liabilities of Guru Ghasidas Vishwavidyalaya, Doctor Harising Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University, shall be transferred to, and be the rights and liabilities of, Guru Ghasidas Vishwavidyalaya, Doctor Harising Gour Vishwavdyalaya and Hemvati Nandan Bahuguna Garhwal University, respectively, established under this Act.” This provision has absolutely no relevance. All it says is the rights and liabilities, inter alia, of the H.N.B. Garhwal University shall be transferred and will become the rights and liabilities of the present H.N.B. Garhwal University which has now attained the status of central university. Section 4 (f) of the Central Universities Act reads as follows : “4. Effect of establishment of Universities. – (a)…. (b)… (c)… (d) … (e) … (f) all Colleges, Institutions, Schools or Faculties, and Departments affiliated to, or admitted to the privileges of, or maintained by, Guru Ghasidas Vishwavidyalaya, Doctor Harising Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University shall stand affiliated to, or admitted to the privileges of, or maintained by, Guru Ghasidas Vishwavidyalaya, Doctor Harising Gour 6 Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University, respectively, established under this Act.” This provision is also not relevant for the present purposes, as all the provision says is that those institute who have already been affiliated to erstwhile H.N.B. Garhwal University will also stand affiliated to the new H.N.B. Garhwal University which has now attained the status of central university. Nothing more but nothing less. Section 46 (2) of the Central Universities Act, 2009 reads as follows : “46. Amendment of President’s Act 10 of 1973. (1) …. (2) Notwithstanding the omission and substitution referred to in sub-section (1), - (a) all appointments made, orders issued, degrees and other academic distinctions conferred, diplomas and certificates awarded, privileges granted, or other things done under the Uttar Pradesh state Universities Act, 1973 (President’s Act 10 of 1973), shall be deemed to have been respectively made, issued, conferred, awarded, granted or done under the corresponding provisions of this Act and, except as otherwise provided by this Act or the Statutes, continue in force unless and until they are superseded by any order made under this Act or the Statutes; and (b) all proceedings of Selection Committees for the appointment or promotion of teachers that took place before the commencement of this Act and all actions of the Executive Council in respect of the recommendations of such Selection Committees where no orders of appointment on the basis thereof 7 were passed before the commencement of this Act shall, notwithstanding that the procedure for selection has been modified by this Act, be deemed to have been valid but further proceeding in connection with such pending selections shall be taken in accordance with the provisions of this Act and be continued from the stage where they stood immediately before such commencement, except if the concerned authorities take, with the approval of the Visitor, a decision to the contrary.” This is also not a provision which directly deals with affiliation. All it says is that all acts done under the Uttar Pradesh State Universities Act, 1973 shall be deemed to have been done under the present Act, etc. There is indeed no provision in the Central Universities Act, 2009 or the statute which is given in form of Schedule 2 of the Act which prescribes any method for granting affiliation to such colleges or institutes, as the petitioner under the new Act. Section 28 of the Central Universities Act would, however, be relevant which reads as under: “28. Power to make Ordinances. – (1) 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 their enrolment as such; (b)… (c)… (d) … (e) … (f) … (g) .. (h) … 8 (i) … (j)… (k)… (l) … (m) … (n) … (o) all other matters which by this Act, or, the Statutes, are to be, or, may be, provided for by the Ordinances. (2) The first Ordinances shall be made by the Vice- Chancellor with the previous approval of the Executive Council and the Ordinances so made may also be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes : Provided that in the case of Guru Ghasidas Vishwavidyalaya and Doctor Harising Gour Vishwavidyalaya, and Hemvati Nandan Bahuguna Garhwal University, till such time as the first Ordinances are not so made, in respect of the matters that are to be provided for by the Ordinances under this Act and the Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Madhya Pradesh Vishwavidyala Adhiniyam, 1973 (Madhya Pradesh Act 22 of 1973), and the Uttar Pradesh State Universities Act, 1973 (President’s Act 10 of 1973), respectively, shall be applicable in so far as they are not inconsistent with the provisions of this Act and the Statutes.” Therefore, how and under what conditions and under what procedure can an affiliation be granted to a college or 9 institute by a university will depend upon the ordinance which was made by the Vice Chancellor of the University under Section 28 (2) of the Central Universities Act, 2009. The ordinance can be made on the subject as already narrated above. Therefore, the matter relating affiliation of universities may either be covered under Section 28 (1) (a) the “admission” of students to the university and the enrollment, or under the residuary powers given under sub-clause (1)(o) to Section 28. The proviso to this section, however, has an important bearing as it visualizes such difficulties as are raised in the present matter and provides that till such time as the first ordinances are not made in respect of the matters that are to be provided for by the ordinance in this Act and the statutes, the relevant provisions of the statutes and the ordinances made immediately before the commencement of this Act, inter alia, of the Uttar Pradesh State Universities Act, 1973 which shall be applicable in so far as they are not inconsistent with the provisions of this Act and the Statutes. Learned counsel for the petitioner Sri Ravi Babulkar states that prior to 15.1.2009 the H.N.B. Garhwal University was a State University and the matter regarding affiliation of colleges to the university was given under Section 37 of the Uttar Pradesh State Universities Act, 1973, which reads as follows : “37. Affiliated Colleges. – (1) This section shall apply to the Universities of Agra, Gorakhpur, Kanpur and Meerut and such other Universities (not being the University of Lucknow as the State Government may, by notification in the Gazette, specify. (2) The Executive Council may, with the previous sanction of the Chancellor, admit any college which fulfils such conditions of affiliation, as may be prescribed, to the privileges of affiliation or enlarge the privileges of any college already affiliated or 10 subject to the provisions of sub-section (8), withdraw or curtail any such privilege : [Provided that if in the opinion of the Chancellor, a college substantially fulfils the conditions of affiliation, the Chancellor may sanction grant of affiliation to that college or enlarge the privileges thereof in specific subjects for one term of a course of study on such terms and conditions as he may deem fit : Provided further that unless all the prescribed conditions of affiliation are fulfilled by a college, it shall not admit any student in the first year of the course of study for which affiliation is granted under the foregoing proviso after one year from the date of commencement of such affiliation.] (3) It shall be lawful for an affiliated college to make arrangement with any other affiliated college situated in the same local area, or with the University, for cooperation in the work of teaching or research. (4) Except as provided by this Act, the management of an affiliated college shall be free to manage and control the affairs of the college and be responsible for its maintenance and upkeep, and its Principal shall be responsible for the discipline of its students and for the superintendence and control over its staff. (5) Every affiliated college shall furnish such reports, returns and other particulars as the Executive Council or the Vice-Chancellor may call for. (6) The Executive Council shall cause every affiliated college to be inspected from time to time at intervals not exceeding five years by one or more persons authorised by it in that behalf, and a report 11 of the inspection shall be made to the Executive Council. (7) The Executive Council may direct an affiliated college so inspected to take such action as may appear to it to be necessary within such period as may be specified. (8) The privileges of affiliation of a college which fails to comply with any direction of the Executive Council under sub-section (7) or to fulfil the conditions of affiliation may, after obtaining a report from the Management of the college and with the previous sanction of the Chancellor, be withdrawn or curtailed by the Executive Council in accordance with the provisions of the Statutes. [(9) Notwithstanding anything contained in sub- sections (2) and (8), if the Management of an affiliated college has failed to fulfil the conditions of affiliation, the Chancellor may, after obtaining a report from the Management and the Vice-Chancellor, withdraw or curtail the privileges of affiliation.] [(10) Notwithstanding anything to the contrary contained in any other provisions of this Act, a college, which has already been given affiliation to a University before the commencement of the Uttar Pradesh State Universities (Amendment) Act, 2003 in specific subjects for a specified period shall be entitled to continue the course of study for which admissions have already taken place but it shall not admit any student in the first year of such course of study without obtaining affiliation under sub-sections (2).]” Therefore, in this given contingency a situation was visualized by the legislature where these transitory powers 12 would be applicable and, therefore, it appears that even though there is no specific provision for affiliation under the Central Universities Act, 2009 the law which will be followed would be as it existed prior to 15.1.2009, meaning thereby that the present affiliation of the petitioner with the H.N.B. Garhwal University shall be governed under Section 37 of the Uttar Pradesh State Universities Act, 1973 or the ordinances passed under the said statute till such time that relevant statutes and ordinances are framed and the proceeding as regarding the H.N.B. Garhwal University under the new Act. Therefore, the present matter of the petitioner regarding affiliation to the H.N.B. Garhwal University is liable to be considered under the provisions of the Uttar Pradesh State Universities Act, 1973 and the first statute or the ordinance framed under the said Act. Learned counsel for the H.N.B. Garhwal University Sri J.P. Joshi has pointed out actual difficulty with the university in as much as there is no specific provision even under Section 28 (1) which gives powers to the university to grant affiliation. He further says that since these powers are not with the university and the Act is silent about it, the university cannot grant affiliation. Even if, there is no specific powers under Section 28 of the Central Universities Act, it will come under residuary clause under Section 28 (1) (o) of the Central Universities Act, 2009. According to the petitioner, since the process is already started and since the matter has already been sent by the executive council of the university to the Chancellor for necessary approval, it is liable to be examined by the concerned authority under the provisions of the Uttar Pradesh State Universities Act, 1973 with the relevant statutes and the ordinances framed therein and the fact that the H.N.B. 13 Garhwal University has presently become a central university shall not come in its way. As soon as the petitioner gets the affiliation, he may immediately make a request for allotment of B.Ed. seats to it, for which he may be entitled. With these observations, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 17.12.2009 Avneet