AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1443 OF 2007 1. Walchand College of Engineering, Vishrambag, Sangli – 416 415, P.O. Willingdon College, Sangli, Maharashtra State, India through its Director/Principal Dr. N.V. Deshpande, having his office as shown above. ) ) ) ) ) ) ) 2. Administrative Council of Petitioner No.1 above, having its office at Vishrambag, Sangli – 416 415, P.O. Willingdon College, Sangli, Maharashtra State, India through its Member Shri Ravindra P. Purohit, a qualified economist having his office as shown above. ) ) ) ) ) ) ) ) 3. Maharashtra Technical Educational Society, a Society registered under the Societies Registration Act, 1860 having office at Dhondumama Sathe Homeopathic Medical College building Erandwande, Karve Road, Pune – 411 004, through its Authorised Representative Shri Ravindra P. Purohit a qualified economist having his office as shown above. ) ) ) ) ) ) ) ) ) ) ) ) 4. Shri Ravindra P. Purohit an adult, Indian Inhabitant, residing at 302, Empress Court, Sher-E-Punjab Society, Andheri (East), Mumbai – 400 093. ) ) ) ) ) ... Petitioners Versus AJN 2 1. The Shivaji University, an Authority constituted under section 3 of the Maharashtra Universities Act, 1994, Kolhapur – 416 004. ) ) ) ) ) 2. Manikrao M. Salunkhe, the Vice Chancellor of the Shivaji University, having his office at Shivaji University, Kolhapur – 416 004. ) ) ) ) ) 3. Director, Board of College and University Development, having his office at Shivaji University, Kolhapur – 416 004. ) ) ) ) 4. The Registrar, Shivaji University, Kolhapur – 416 004. ) ) 5. University Grants Commission, an Authority, constituted under Section 4 of the University Grants Commission Act, 1956, having its office at Bahadur Shah Zafar Marg, New Delhi - 110 002. ) ) ) ) ) ) 6. The Management Council of the Respondent No.1, constituted under section 27 of the Maharashtra Universitites Act, 1994, having their office at Shivaji University, Kolhapur – 416 004. ) ) ) ) ) ) 7. The Academic Council of the Respondent No.1, constituted under section 29 of the Maharashtra Universities Act, 1994, having their office at Shivaji University, Kolhapur – 416 004. ) ) ) ) ) ) AJN 3 8. The State of Maharashtra, through the Principal Secretary, Department of Higher and Technical Education, Mantralaya, Mumbai. ) ) ) ) ) ... Respondents Mr. Y.S. Jahagirdar, senior advocate with Mr. G.S. Godbole and Smt. Surve i/b Little & Co. for the petitioners. Mr. R.G. Ketkar for the Shivaji University. Mr. Rodrigues for the University Grants Commission. Mr. A.A. Kumbhakoni, Associate Advocate General for the State. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 21ST FEBRUARY, 2008. DATE ON WHICH THE JUDGMENT PRONOUNCED : 10TH MARCH, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) Rule. Respondents waive service. By consent of the parties, taken up for hearing forthwith. 1. Petitioner 1, the Walchand College of Engineering is affiliated AJN 4 to respondent 1 i.e. Shivaji University Kolhapur (for short, “the University”). Petitioner 2 is the Administrative Council of petitioner 1, which controls the management of petitioner 1. Respondent 2 is the Vice Chancellor of the University. Respondent 3 is the Director of Board of College and University Development. Respondent 4 is the Registrar of the University. Respondent 5 is the University Grants Commission (for short, “the UGC”) constituted under section 4 of the University Grants Commission Act, 1956 (for short, “the UGC Act”). Respondents 6 and 7 are the Management Council and the Academic Council of the University. Respondent 8 is the State of Maharashtra, through its Principal Secretary, Department of Higher and Technical Education, Mantralaya, Mumbai. 2. There is no dispute about the fact that petitioner 1 is a well known and reputed College of Engineering, having different faculties like civil, mechanical, electrical, electronics, computer science and information technology. The petitioners are primarily aggrieved by the action of respondent 1 in refusing to recognize petitioner 1 as an autonomous college though, according to the petitioners, by letter dated 12/7/2006, respondent 1 had AJN 5 communicated to the petitioners that it had granted autonomy to the petitioners. It is necessary to give gist of the facts as stated by the petitioners to understand their grievance. 3. Petitioner 1 was established in 1947. It was affiliated to the Shivaji University. In 1994, the Maharashtra University Act, 1994 (for short, the University, Act”) was enacted and the Shivaji University Act, 1974 was repealed. Affiliation of petitioner 1- college, however, continued. On 19/7/2002, the Government of India decided to implement Technical Education Quality Improvement Programme (for short, “the TEQIP”). This programme is to be implemented with the help of soft loan of Rs.5,000 crores from the World Bank. This programme aims at making India a developed and confident nation by producing world class engineers through qualitative changes in technical education system. The Ministry of Human Resources Development (for short, “the MHRD”) is to select engineering colleges and polytechnics for this purpose. The MHRD has decided certain criteria and the Institutes fulfilling those criteria will get substantial financial support. At the end of this programme, the engineering colleges are expected to be on par with the Indian Institute of Technology. One AJN 6 of the important conditions for participation in this programme is that the Institute should be totally autonomous. 4. The Government of Maharashtra decided to implement the TEQIP and issued GR dated 19/7/2002. By this GR, approval was given to implement the TEQIP in the engineering colleges and polytechnics in Maharashtra State with a view to enhancing the quality of technical education in the State. The GR stated that on formation of the Board of Governors and after obtaining academic autonomy from the respective Universities, the Institutes seeking participation in the programme will function as total autonomous Institutes. Clause 12 of the said GR provided for change of designation of “Principal” to “Director”. It also provided for Selection Committee consisting of five persons viz. (1) Chairman- Director, IIT, Bombay, (2) Member-Chairman, TIFR, Bombay, (3) Member-Secretary, Higher and Technical Education, (4) Member- Chairman, Board of Governor and (5) Member-Secretary, DTE, MS, Bombay. On 9/5/2003, petitioner 1-college submitted their proposal to the Registrar of the University for grant of autonomous status. The said proposal sets out mode of selection of teachers, composition of the Selection Committee, structure of function of AJN 7 Academic Council and Board of Studies among other things. The said proposal was placed before the Management Council. The Management Council appointed Sub-Committee for scrutiny of the said proposal. The said Sub-Committee visited petitioner 1-college and submitted its report dated 19/1/2004 stating that there was a prima faice case for consideration of the proposal. Local Inquiry Committee was constituted after taking the approval of the Chancellor. The Local Inquiry Committee visited petitioner 1- college on 14/2/2005 and 25/2/2005 to consider its application for conferment of autonomous status. It appears that in the meantime, on 31/3/2004, another GR was issued by the Government of Maharashtra. A Selection Committee for the post of Director was provided by clause 2.1(5) thereof. The Selection Committee was to consist of the following persons : (1) Chairperson/Chairman of the Board of Governors (2) Co-Chairperson/Principal Secretary/ Secretary, Higher & Technical Education Department, Mantralaya, Bombay. (3) Two Members-Director, TIFR, Bombay or Director, IIT, Bombay or equivalent reputed national Institutes. AJN 8 (4) Member-Secretary-Director, DTE, MS, Bombay. 5. On 21/3/2005, the Government of Maharashtra issued GR prescribing the procedure for grant of autonomous status to non- government partly aided Technical Educational Institutions in the State since the earlier GRs dated 19/7/2002 and 31/3/2004 applied only to Government and fully aided private Institutions. Clauses 2.1 (3) and (4) provide for re-designation of the post of “Principal” to “Director”. For the selection of Director, a Selection Committee was constituted. It consisted of Chairman, President of the Board of Governing Council of the Institution, Vice-Chairman - Principal Secretary, Higher and Technical Education Department, Mantralaya, two Members-Director, TIFR, Bombay or Director, IIT, Bombay or similar reputed Institutions of national level, Member Secretary, DTE, MS, Bombay. This GR was forwarded to the University and all other Universities and to the Secretary of UGC. 6. It is the case of the petitioners that on 29/3/2005, a Memorandum of Understanding (for short, “MOU”) was executed between petitioner 1-college and the Government of Maharashtra AJN 9 pursuant to GR dated 21/3/2005 whereby it was agreed that petitioner 1-college and Government of Maharashtra should implement all academic and non-academic programmes under the TEQIP for which the Government of India has been given soft loan from the World Bank. 7. According to the petitioners, on 27/4/2005, the report of the Local Inquiry Committee was placed before the Academic Council which resolved to accept the report and confer autonomous status on petitioner 1-college from the Academic Year 2005-06. Since it was likely to take a long time for constitution of a Senate and placing the resolution of the Academic Council before the Senate, the Vice Chancellor granted approval to the resolution of the Academic Council. On 13/6/2005, the Management Council of the University granted approval to the decision of the Academic Council and of Senate (the Vice Chancellor exercising powers of Senate) and it was resolved to confer autonomous status on petitioner 1-college. On 21/6/2005 the University sent proposal to the UGC for grant of autonomous status to petitioner 1-college. 8. On 30/6/2005, the Government of Maharashtra AJN 10 communicated its no objection to the grant of Academic Autonomy to the degree level education in petitioner 1-college to the UGC. On 28/3/2006 and 29/3/2006, the Local Inquiry Committee/Expert Committee of the UGC visited the college and submitted its report to the UGC. On 29/3/2006, in view of the fact that Academic Year 2005-2006, for which the University had resolved to grant autonomy to petitioner 1-college, had already elapsed and since the process of granting autonomy under the University Act was not completed, the Government of Maharashtra passed an order under section 8(4) of the University Act granting autonomy to petitioner 1- college for degree courses. On 7/4/2006 and 4/5/2006, the UGC after considering the report of the Expert Committee and with the concurrence of the Government of Maharashtra agreed to conferment and grant of autonomous status to petitioner 1-college for the period from Academic Year 2006-2007 to 2011-2012 subject to the condition that the college will appoint on regular basis duly qualified principal within a period of six months. On 23/6/2006, petitioner 1-college sent a letter to the University stating that the GR dated 21/3/2005 is applicable to petitioner 1-college and the present Governing Council of petitioner 1-college has a representative of the University which is in accordance with the AJN 11 guidelines prescribed by GR dated 21/3/2005. It was further stated in that letter that according to GR dated 21/3/2005, the present employees will be governed by the conditions of service prescribed by the University and the process of prescribing the conditions of service of employees selected after the grant of autonomy is in progress and such conditions would be similar to the present conditions of service. It was further stated that in accordance with GR dated 21/3/2005, the post of principal would be re-designated as Director and the Selection Committee for the post of Director would be as prescribed by the said GR. It was further stated that the Selection Committee for selecting teachers would be according to statute 457 of UGC and it will be constituted at the level of Institution and the same will have representation from all constituents approved by the University. 9. It is the case of the petitioners that on 12/7/2006, the University communicated that petitioner 1-college had been granted autonomy in accordance with GR dated 29/3/2006. This letter referred to letter dated 23/6/2006 sent by petitioner 1-college and further stated that action concerning the University was taken in accordance with statute 457 of the Shivaji University Act, 1974 AJN 12 and in case any discrepancy arises between the approval granted by the UGC and the resolution of the Government of Maharashtra, the provisions of the Shivaji University Act would prevail. The University then sent letter dated 24/8/2006 to petitioner 1-college. In this letter, a reference was made to letter dated 4/5/2005 of UGC and it was stated that petitioner 1-college had not complied with the conditions of appointing a regular qualified Principal within six months and autonomy would be granted to petitioner 1-college only after complying with the said condition as directed by the UGC and after getting approval from UGC. 10. On 19/9/2006, petitioner 1-college sent a letter to the University informing that the petitioners had already announced commencement of autonomous programme effective from 2006-07 based on order dated 12/7/2006 granting autonomy and that the classes had commenced accordingly for both undergraduate and postgraduate programmes. In respect of the compliance of UGC condition regarding appointing a qualified head of the Institute, it was informed that the Chairman had already constituted a Search Committee and that the Director would be appointed at the earliest. It is the case of the petitioners that on 29/9/2006, the Selection AJN 13 Committee held interviews. The Selection Committee unanimously selected Dr. N.V. Deshpande for the post of Director. However, on 19/9/2006, the Management Council of the University passed a resolution to the effect that petitioner 1-college should comply with the conditions of UGC letter dated 4/5/2006 before January, 2007 and, thereafter, it should be granted autonomy and till compliance of conditions i.e. for the current Academic Year 2006-2007 affiliation of the University will continue. It appears that on 29/9/2006, a letter of appointment was issued to Dr. N.V. Deshpande, who accepted the same and agreed to join on or before 10/11/2006. 11. On 30/9/2006, the University sent a letter to the petitioners and informed the petitioners that the post of Principal as indicated in the letter of UGC dated 4/5/2006 should be filled up through Selection Committee prescribed by the University. Petitioner 1- college responded by letter dated 4/10/2006. It informed the University that Dr. N.V. Deshpande had already been appointed as Director and condition imposed by UGC in its letter dated 4/5/2006 is complied with. On 6/10/2006, the petitioners sent a letter to the Government of Maharashtra informing about AJN 14 compliance of UGC condition regarding appointment of qualified person to the post of Principal re-designated as Director. By their letter dated 9/10/2006, the petitioners also informed the UGC about the fulfillment of the condition imposed in the letter dated 4/5/2006. On 11/10/2006, a representation was sent by the petitioners to the Government of Maharashtra alleging change of stand by the University and consequent prejudice caused to the petitioners. On 20/10/2006, the University sent a letter to the petitioners stating that advertisement for the post of Principal and other posts was approved on 16/9/2006 but since necessary compliance has not been made and since the post of Principal was not filled up and autonomy was not granted, the designation of Director cannot be accepted. It appears that on 20/11/2006, the UGC informed petitioner 1-college that petitioner 1-college had fulfilled the condition imposed by UGC for filling up of regular post by a duly qualified Principal / re-designated as Director and, hence, the UGC had granted approval for grant of fresh autonomy status to petitioner 1-college from the Academic Years 2007-2008 to 2011- 2012. On 9/1/2007, the Government of Maharashtra issued a fresh directive to the University stating that a Director having been selected by the Selection Committee constituted according to the AJN 15 Government Resolution, the conditions imposed by UGC have been fully complied with and academic autonomy already granted to the Institution should be held valid. Thereafter, correspondence was exchanged between the petitioners and the University regarding compliance or otherwise of the condition imposed by the UGC in its letter dated 4/5/2006. Being aggrieved by the refusal of the University to acknowledge the autonomous status of petitioner 1-college, the petitioners have filed the present petition. The petitioners have sought quashing of several letters sent by the University to them and to the Government which according to the petitioners reflect the University's adamant, unreasonable and legally incorrect stand. 12. We have heard at some length Mr. Jahagirdar, learned senior counsel who appears for the petitioners. Mr. Jahagirdar pointed out that petitioner 1-college was established in the year 1974. It was affiliated to the Shivaji University. The University Act came into force on 22/7/1994. By reason of section 115 thereof, the Shivaji University Act to which petitioner 1-college was affiliated to, stood repealed. However, under section 115(2)(ii) thereof, petitioner 1-college is deemed to be affiliated to the University. AJN 16 13. Under section 115(2)(xii) of the University Act, all statutes and ordinances made under the repealed Acts which included Bombay University Act, 1974 and the Shivaji University Act, 1974 in respect of any existing University shall, insofar as they are not inconsistent with the provisions of the University Act shall be deemed to have been made under the University Act in respect of the corresponding University by the Senate or the Management Council, as the case may be, of that University, until they are superceded and modified by the statutes made under this Act. 14. Mr. Jahagirdar pointed out that new statutes under section 51 read with section 52 of the University Act have not been made. Statute 457 is no longer applicable because it is inconsistent with the provisions of the University Act. It is pointed out that under the Shivaji University Act, 1974 section 20(1) provided for a Senate. Under statute 457, a college has to apply for autonomous status to the Registrar of the University in the prescribed format. The Registrar has to place it before the Executive Council. The Executive Council, if it finds that there is a prima facie case, shall with the approval of the Chancellor, direct a local inquiry to be AJN 17 made by the Local Inquiry Committee. The Local Inquiry Committee shall submit a report to the Registrar who shall place it before the Academic Council. The Academic Council may recommend the autonomous status. If it does, the Registrar has to place the application, the report of the Local Inquiry Committee and the recommendations of the Academic Council before the Senate and the Senate shall make its recommendations as required under section 22(1) of the Shivaji University, Act, 1974. The Registrar has to then place the application, the report of the Local Inquiry Committee and the recommendations of the Academic Council and the Senate thereon before the Executive Council for consideration. Under statute 457 (15), if the Executive Council proposes to recommend the conferment of the autonomous status, the Executive Council shall record a resolution to that effect. The Registrar has to then send the report of the Local Inquiry Committee, recommendations of the Academic Council, Senate and the Executive Council to the State Government and the UGC for their approval. 15. Mr. Jahagirdar pointed out that the Senate constituted under section 35 of the University Act and exercising various function AJN 18 under section 26 thereof, has been completely eliminated from the process of conferment of autonomous status. Under section 28(z) of the University Act, the Management Council has to confer autonomous status on a college on the recommendation of the Academic Council subject to the predetermined norms approved by the State Government having regard to the guidelines of the UGC. Under section 89(1) of the University Act, the Management Council on recommendations of the Academic Council confers autonomous status on a college. Therefore, statute 457 is inconsistent with the provisions of the University Act and, hence, deeming provision of section 115(2)(xii) will not apply. Statute 457 being inconsistent cannot continue to be in force and cannot be deemed to have been made under the University Act. 16. Mr. Jahagirdar submitted that in fact, section 51(11) of the University Act requires that while making statute regarding autonomy, it shall be subject to the approval of the State Government. Section 51(11) provides that subject to the provisions of the University Act, the statutes may provide for the norms for grant of autonomy to University, Departments or Institutions, affiliated Colleges and recognized Institutions subject AJN 19 to the approval of the State Government. Statute 457 and the relevant provisions of sections 2(ii), 2(1)(vi), 22(1) and 24(v) of the Shivaji University Act, 1974 do not confer any powers, duties or functions on the State Government in the matter of grant of autonomous status. Under statute 457, clause 5, only the concurrence of the State Government and UGC is required. On the other hand, University Act by virtue of section 28(z) read with section 89, the State Government has a major role to play i.e. to frame norms for grant of autonomous status having regard to the guidelines of the UGC. Mr. Jahagirdar submitted that, therefore, statute 457 can have no application and in the absence of any statute made under the University Act regarding grant of autonomy, the autonomy granted to petitioner 1-college must be construed to be one under section 28(z) read with section 30 (2)(p) read with section 89 of the University Act. 17. We must note that during arguments, this court pointed out that the stand of the petitioners that statute 457 is inconsistent with the University Act and, therefore, does not hold the field cannot be sustained because petitioner 1-college has submitted the proposal for autonomy under format prescribed as per statute 457 and has AJN 20 accepted the procedure provided therein. Faced with this situation, on behalf of the petitioners on 21/2/2009, further written submissions were filed. It is now contended that procedural part of statute 457 would be inconsistent with the provisions of the University Act and only to that extent it will not be saved by section 115(12) of the University Act. We are not happy with this wavering stand of the University. We shall advert to it a little later. 18. Mr. Jahagirdar submitted that autonomy has already been granted on 12/7/2006 subject to compliance of the condition regarding appointment of the Director in terms of UGC order dated 4/5/2006 within six months and the same has been complied with within six months by appointing Dr. Deshpande as accepted by UGC letter dated 20/11/2006. Mr. Jahagirdar submitted that though Dr. Deshpande was appointed in accordance with the procedure prescribed by the State Government, in its resolution dated 21/3/2006 respondent 2 i.e. the Vice Chancellor has unnecessarily raised the objection that the appointment of Dr. Deshpande is not in accordance with the prescribed procedure. This led to Dr. Deshpande tendering his resignation. The University has persisted in its adamant approach and has not AJN 21 accepted forms of eligible students. He submitted that this approach of the University has affected the careers of several students, who have joined the college on the basis that it is an autonomous college, adversely. 19. Mr. Jahagirdar submitted that the fact that autonomous status is conferred on petitioner 1-college is established by three core documents. They are; (a) GR dated 29/3/2006 issued by the Government of Maharashtra granting autonomy to petitioner 1- college under section 8(4) of the University Act, (b) letter dated 4/5/2006 issued by respondent 5 - the UGC wherein autonomy is granted to petitioner 1-college subject to the condition that duly qualified Principal will be appointed within a period of six months for Academic Year 2006-2007 to 2011-2012 and (c) letter dated 12/7/2006 sent by the University granting autonomy to petitioner 1- college where no conditions are laid down with regard to the appointment of the Principal. Mr. Jahagirdar submitted that in the circumstances, the impugned letters be set aside and a direction be given to the respondent University to accept the autonomous status of petitioner 1-college. AJN 22 20. Before we advert to the submissions of Mr. Ketkar, who appears for the contesting