Writ Petition No.4205 of 2014

2nd June, 2014

Petitioner Counsel: Mr. SUSHIL MAHADESHWAR a/w. Ms RANJANA TODANKAR
Respondent Counsel: Mr. R.A. RODRIGUES

Cases Cited:
East Coast Railway & anr Vs. Mahadev Appa Rao & ors., 2010 ALL SCR 1873=(2010) 7 SCC 678 [Para 14,25]
S.N. Mukherjee Vs. Union of India, (1990) 4 SCC 594 [Para 14,23]
T.M.A. Pai Foundation & ors. Vs. State of Karnatka & ors, 2013 ALL SCR (O.C.C.) 177=(2002) 8 SCC 481 [Para 14]
Dipak Babaria & anr Vs. State of Gujarat & ors., 2014(3) ALL MR 446 (S.C.)=(2014) 3 SCC 502 [Para 14,28]
Institute of Chartered Accountants of India Vs. L.K. Ratna & ors., AIR 1987 SC 71 [Para 14,29]
Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh & ors., 2013 ALL SCR 337=(2013) 2 SCC 617 [Para 16,26]
Siemens Engineering & Manufacturing Co. of India Limited Vs. Union of India, (1976) 2 SCC 981 [Para 24]

JUDGMENT

M. S. SONAK, J. :- Rule. With the consent of the parties, Rule is made returnable forthwith.

2. The Supreme Court vide order dated 26.5.2014 in Petition for Special Leave to Appeal (Civil) No. 14120 of 2014 had requested this Court to take up the writ petition for hearing and decide the same before 6.6.2014. In deference to such request, this petition is being disposed of finally at this stage itself.

3. Heard Mr. Mahadeshwar, learned counsel appearing for the Petitioner and Mr. Rodrigues, learned counsel appearing for Respondent No.1. Although notice was given to Respondent No.2 by the Petitioner, none appears. No reliefs have been claimed as against Respondent No.2.

4. This petition takes an exception to the Mumbai University's letter dated 21.9.2013, Resolution of Academic Council dated 19.9.2013 and Resolution of the Board of Colleges and University Department (BCUD) dated 26.7.2013, all of which have effect withdrawal of affiliation earlier granted to the Petitioner's Arts, Commerce and Science College at Onde, Thane (said college).

5. There is no dispute that said college was granted affiliation by the Mumbai University for the first time in the academic year 2002-2003 and that said college is a government aided institution since the academic year 2005-2006. It is the case of the Petitioner that its Chairman filed a Public Interest Litigation No.92 of 2010 before this Court, questioning inter alia the appointment of the present Vice Chancellor of the Mumbai University and that the impugned decision, now withdrawing the affiliation to the said college, is therefore, result of vendetta. At the very outset, it needs to be noted that although the petition is spiced with such statements, there are neither any specific allegations of mala fides nor has any person against whom such allegations been made, impleaded as a party to the petition.

6. The Petitioner has pointed out that it made an application dated 14.6.2010 to the University seeking permanent affiliation. In pursuance, Committee comprising, inter alia Dr. G.V. Pargaonkar and two others was constituted to make a local inquiry and submit report. This Committee is referred to as "local inquiry committee" (LIC). The LIC visited the said college 17.9.2011 and submitted a report on 16.11.2011. The LIC, inter alia recommended that affiliation be discontinued from the academic year 2012-2013.

7. The Academic Council of the University, in its meeting held on 6.6.2012, accepted the recommendation of the LIC, but rather than itself recommend disaffiliation, resolved to constitute a High Power Committee (HPC) to look into the matter and submit its report. In pursuance, HPC comprising five members came to be constituted, out of which Dr. G.V. Pargaonkar was also one of the members. The HPC submitted its report on 27.2.2013, which was accepted by the BCUD in its meeting held on 17.4.2013.

8. The BCUD, thereafter initiated action under Section 91 of the Mumbai University Act, 1994 by way of issuing Show Cause Notice dated 23.5.2013 to the Petitioner, requiring it to show cause as to why the privileges conferred on the said affiliated college by affiliation should not be withdrawn in whole. The Petitioner, thereupon preferred a Writ Petition No. 6512 of 2013 before this Court, questioning the show cause notice dated 23.5.2013. This petition was not entertained by this Court, by observing that if any adverse decision is taken, the Petitioner will always have liberty to initiate appropriate legal proceedings. The contentions raised by the Petitioner in the said petition were kept open.

9. The Petitioner furnished reply dated 19.7.2013 to the show cause notice dated 23.5.2013 denying the allegations contained therein. Explanation and the documents were also furnished in regard to the charge of various deficiencies specified in the show cause notice dated 23.5.2013.

10. It is the case of the Petitioner that the University by its letter dated 21.9.2013, informed the Petitioner that in accordance with the Resolution of the Academic Council dated 19.9.2013, the affiliation conferred upon the said college stands withdrawn from the Academic Year 2014-2015.

11. It is further the case of the Petitioner that since, apart from the letter dated 21.9.2013, which merely intimated the decision of this affiliation, no reasons were furnished to the Petitioner, the Petitioner by its letter dated 10.10.2013 requested the University to furnish copy of Resolution dated 19.9.2013 alongwith minutes of meeting, from which at least, reasons for the decision might be discernible. As there was no response, the Petitioner by application dated 24.10.2013 invoked the provisions of Right to Information Act to seek aforesaid information. Again as there was no response, the Petitioner preferred an appeal to the appellate authority on 4.12.2013 and thereafter to the State Information Commission on 10.1.2014 to seek aforesaid information.

12. Ultimately, on 21.2.2014, the Public Information Officer (PIO) University furnished the Petitioner a copy of Academic Council's Resolution dated 19.9.2013, however, no minutes were furnished. Thereafter, on 18.3.2014 the Petitioner received from the PIO, a copy of letter dated 15.3.2014 and Resolution dated 26.7.2013 of BCUD containing recommendation for disaffiliation of the Petitioner' college. Finally, on 21.3.2014, the Petitioner received a letter 19.3.2014 from the PIO, informing the Petitioner that the proceedings of Academic Council are not 'minuted' and that only Resolutions are recorded.

13. On basis of aforesaid correspondence, it is the case of the Petitioner that although the factum of disaffiliation was communicated to the Petitioner way back on 21.9.2013 for almost a period of six months, the Petitioner was denied information /documents, on basis of which, the Petitioner might be in a position to discern the reasons for the drastic action of disaffiliation. It is the case of the Petitioner that even after furnishing the information/document, the reasons for the drastic action of disaffiliation are still not discernible.

14. In the aforesaid circumstances, learned counsel appearing for the Petitioner impugns the action of disaffiliation, primarily on the following grounds which have been urged in the alternate and without prejudice to one another:

(a) That the impugned letters/Resolutions, which visit the Petitioner with very serious civil consequences, contain no reasons whatsoever, as to the basis on which they have been made. This is clearly arbitrary and consequently antithetic to the rights guaranteed by Article 14 of the Constitution of India. Based upon such arbitrary action the fundamental right of the Petitioner to establish and operate a college, as guaranteed by Article 19(1)(g) of the Constitution of India has been infringed. In support, learned counsel placed reliance upon the decisions of the Supreme Court in the cases of East Coast Railway & anr vs. Mahadev Appa Rao & ors - (2010) 7 SCC 678 : [2010 ALL SCR 1873], S.N. Mukherjee vs. Union of India - (1990) 4 SCC 594 and T.M.A. Pai Foundation & ors. vs. State of Karnatka & ors (2002) 8 SCC 481 : [2013 ALL SCR (O.C.C.) 177];

(b) In arriving at the impugned decision, the University has placed reliance upon reports of LIC and HPC. Section 91 of the Maharashtra Universities Act, 1994(said Act) which is a complete code in matters of withdrawal of affiliation or recognition does not contemplate any involvement of either LIC or HPC in matters of withdrawal of affiliation or recognition. Relying upon the decision of the Supreme Court in the case of Dipak Babaria & anr vs. State of Gujarat & ors. (2014) 3 SCC 502 : [2014(3) ALL MR 446 (S.C.)], it was submitted that if law requires that a particular thing should be done in a particular manner it must be done in that way and none other. Accordingly, it was submitted that the impugned decisions are vitiated on account of involvement of LIC and HPC and the same ought to be struck down;

(c) Without prejudice, it was submitted that Dr. Pargaonkar was a member of the LIC, which had submitted an adverse report to the Academic Council in the matter of grant of permanent affiliation to the said college. The Academic Council, on basis thereof constituted HPC, in which again Mr. Pargaonkar was made a member. This, according to the Petitioner constitutes serious violation of principles of natural justice. In this regard, reliance was placed upon the decision of the Supreme Court in the case of Institute of Chartered Accountants of India v. L.K. Ratna & ors - AIR 1987 SC 71 .

(d) Finally, it was submitted that entire impugned action is fraught with mala fides emanating from the circumstance that the Chairman of the Petitioner has preferred a Public Interest Litigation questioning very appointment of the Vice Chancellor of the Mumbai University. Reference was made to various reports indicating that certain other colleges despite having serious deficiencies, had not been disaffiliated by the Mumbai University.

15. Mr. Rodrigues learned counsel appearing for Respondent No.1, at the outset submitted that the allegations of bias and mala fides made in the petition are vague and in any case not borne from the material on record. He pointed out that whenever any issue pertaining to the Petitioner's college was concerned, the Vice Chancellor has recused himself. This is clearly reflected in the Resolutions on record. Further, Mr. Rodrigues submitted that at the stage when the said college was granted affiliation for the academic year 2002-2003, the Petitioner was required to furnish an undertaking to comply with the prescribed requirements. It is now revealed that the Petitioner, apart from not complying with the prescribed requirements, has failed even furnish the prescribed undertaking. Further, Mr. Rodrigues took us to the reports of the LIC and HPC and pointed out that there are gross deficiencies in matters of providing infrastructure and staff which would adversely affect the well being and academic growth of the students. Mr.Rodrigues also pointed out that several financial irregularities were also detected and for all these reasons the impugned decision to disaffiliate the said college is legal and proper.

16. Mr. Rodrigues placed reliance upon the decision of the Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh & ors. ( 2013) 2 SCC 617 : [2013 ALL SCR 337], wherein the Supreme Court has laid down that it is not for the Courts exercising powers of judicial review to examine the compliances or breach of conditions and their extent particularly in matters of grant or rejection of affiliation by academic institutions. Such issues would involve adjudication into disputed questions of fact and consequently they would squarely fall beyond the ambit of writ jurisdiction. It is for specialized bodies to examine matters upon physical verification and to proceed in accordance with law.

17. Mr. Rodrigues, finally submitted that the impugned Resolution dated 26.7.2013 passed by the BCUD clearly notes that the Petitioner's response dated 23.5.2013 was considered, but found to be unsatisfactory. The Academic Council in its Resolution dated 19.9.2013 has accepted the recommendation of the BCUD, which is quite consistent with the scheme of Section 91 of the said Act. Accordingly, it cannot be said that the impugned action/Resolutions are arbitrary or unreasonable. Further, Mr. Rodrigues submitted that the provisions of Section 91 of the said Act have been scrupulously followed and there is no question of any breach of procedures. Insofar as the involvement of Dr. Pargaonkar is concerned, Mr. Rodrigues submitted that the HPC is not some kind of an appellate authority over and above the LIC. Further the material in form of reports from LIC and HPC merely constitute inputs, which are taken into consideration by the prescribed authorities. However, ultimately the decision is arrived by the prescribed authorities themselves. Consequently, Mr. Rodrigues submitted that there is no merit in any of the grounds urged by and on behalf of the Petitioner.

18. The rival contentions now fall for our determination.

19. In order to consider the first contention advanced by the learned counsel appearing for the Petitioner, it is necessary to make reference to the letter dated 21.9.2013, Resolution of the BCUD dated 26.7.2013 and Resolution of the Academic Council dated 19.9.2103. The letter dated 21.9.2013 is a mere intimation to the Petitioner that the affiliation conferred upon the said college withdrawn in the whole from the academic year 2014-2015. This letter contains no reasons whatsoever, but the same makes reference to the Resolution of the Academic Council dated 19.9.2013.

20. The Resolution of the Academic Council dated 19.9.2013, reads thus:

"It was resolved to recommend to the ViceChancellor that the recommendation made by the BCUD at its meeting held on 26.7.2013 (Vide Item No.7) be accepted and in accordance therewith the privileges conferred by affiliation on the Sanjivan Gramin Vaidyakiya and Samajik Sahayta Pratishthan College of Arts, Science and Commerce, Onde, Taluka Vikramgad, DistrictThane be withdrawn in whole from academic year 2014-15.

Further, BCUD will prepare the plan to protect the interest of students and place it before the Academic Council immediately."

21. As the aforesaid Resolution of the Academic Council makes reference to the Resolution/recommendation of the BCUD dated 26.7.2013, it is necessary to make reference to the same. The BCUD Resolution dated 26.7.2013 reads thus:

"It was resolved that the written explanation dated 19.7.2013 submitted by Sanjivani Gramin Shikshan Sanstha in response to the notice dated 23.5.2013 is found to be unsatisfactory and therefore it is recommended that the notice and the Written Statement be placed before the Academic Council. Accordingly, by a Motion which is unanimously accepted, it is hereby proposed to further recommend to the Academic Council to withdraw the privileges conferred on the College by affiliation in whole"

22. Perusal of the Resolutions dated 26.7.2013 and 19.9.2013 would indicate there are absolutely no reasons recorded for the impugned decision to disaffiliate the said college. The statement that the written explanation dated 19.7.2013 furnished by the Petitioner "is found to be unsatisfactory" hardly constitutes any reason, but is more in the realm of conclusion. Accordingly, we are constrained to note that neither the letter dated 21.9.2013, nor the two Resolutions dated 26.7.2013 and 19.9.2013 disclose any reasons for the impugned decision to disaffiliate the said college from the Academic year 2014-15. In arriving at such a decision, which no doubt visits the Petitioner with serious civil consequences, the Respondents were duty bound to record reasons. The Petitioner had submitted a written explanation alongwith documents. In the circumstances, the Respondents were duty bound to record at least briefly the reasons which prompted them to come to the conclusion that such a reply or the explanation submitted therein was unsatisfactory. From the perusal of the impugned decisions, it is impossible to discern any precise reasons which weighed with the authorities in disaffiliating the said college. In absence of record of any reasons, the Petitioner right to seek judicial review is also, to a great extent, frustrated.

23. In the case of S.N. Mukherjee (supra), the Supreme Court has ruled that except in cases where the requirement has been dispensed with expressly or by necessary implication, even an administrative authority exercising judicial or quasi judicial functions is required to record the reasons for its decision. Upon reasons being recorded, the Supreme Court or the High Courts would be able to effectively exercise appellate or supervisory power. But this is not the sole consideration. The other considerations, inter alia include guaranteed consideration by the authority; introduction of clarity in decision; and minimizing the chances of arbitrariness in decision making. Record of reasons serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the procedure of decision making. Such purpose would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. The reasons to be recorded need not always be elaborate as in the decisions of a court of law. The extent and nature of reasons would depend on the particular facts and circumstances. However, what is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording reasons is greater in case where the order is passed at the original stage.

24. In the case of Siemens Engineering & Manufacturing Co. of India Limited vs. Union of India - (1976) 2 SCC 981, the Supreme Court has held that the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasijudicial process.

25. In the case of East Coast Railway, [2010 ALL SCR 1873] (supra), the Supreme Court has held that there is no precise statutory or other definition of term "arbitrary". Arbitrariness in the making of an order by an authority can manifest itself in different forms. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. Such disclosure is best done by recording reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly suggestive of the order being arbitrary and legally unsustainable.

26. Applying the aforesaid principles to the fact situation as presented, we are satisfied that the impugned decision to disaffiliate the said college is required to be interfered with on the short ground that such decision discloses "no reasons". Mr. Rodrigues, no doubt attempted to take us through the material on record, inter alia in the form of reports from LIC and HPC. However, as submitted by Mr.Mahadeshwar, learned counsel for the Petitioner, in exercise of powers of judicial review, we are more concerned with the decision making process rather than the decision itself. Accordingly, there is no question of this Court applying its mind to the issue of compliances and noncompliances of the prescribed conditions in the context of affiliation. As has been held by the Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya, [2013 ALL SCR 337] (supra), upon which reliance was placed by Mr. Rodrigues himself, such issues squarely fall beyond the ambit of writ jurisdiction of this Court. The only reason which prompts us to interfere with the impugned decision is because the decision discloses no reasons, which in the facts and circumstances of the present case, it was imperative for the Respondents to disclose.

27. The second submission based upon the principle that if law requires a particular thing to be done in a particular manner, it must be done in that manner and none other, does not in the fact situation of the present case, appeal to us. Section 91 of the said Act contemplates issuance of show cause notice by BCUD mentioning therein the grounds upon which it proposes to recommend withdrawal of affiliation or recognition. The show cause notice is required to afford a period of not less than 30 days to the management to file its written statement in reply to the notice. Upon receipt of such written statement, the BCUD is required to place before the Academic Council, the notice and written statement with or without motion for withdrawal or modification of privileges of affiliation or recognition. The Academic Council thereafter, having regard to the interest of the students studying in the college has to recommend the Vice Chancellor the action should be taken in this behalf and thereafter, it is for the Vice Chancellor to proceed to implement the recommendations.

28. In the present case, admittedly, the BCUD has issued show cause notice to the Petitioner as contemplated by Section 91(1). Further upon considerations of the reply/response has furnished by the Petitioner, the BCUD has forwarded notice, the reply and its motion for withdrawal of privileges to the Academic Council. Procedurally therefore, that does not appear to be any breach of the provisions of Section 91 of the said Act. The circumstance that LIC and HPC came to be constituted for the purposes of physically verifying compliances and making report, cannot lead to the inference that some procedure, not at all contemplated by Section 91 of the said Act was followed in the present case. It is to be noted that the constitution of LIC and HPC was prior to the issuance of the show cause notice by the BCUD. It is always open for the BCUD to require committees or subcommittees to physically verify the compliances and submit report for its consideration. In doing this, it cannot be said that any procedure not contemplated by the provisions of Section 91 of the said Act has been followed. This is also not a case of abdication or surrender of discretion to some extraneous authority. Accordingly, we are of the opinion that the principle set out in the case of Dipak Babaria (supra) is not at all attracted to the facts and circumstances of the present case.

29. The third contention concerning the involvement of Dr. Pargaonkar, in both LIC and HPC, also does not appeal to us, inter alia for the same reason. The very constitutions of LIC and HPC have been prior to issue of show cause notice by the BCUD under Section 91 of the said Act. This is not a case where any decision as such has been arrived at either by the LIC or HPC. This is not a case where the HPC was some kind of an appellate authority as against any decisions of the LIC. The factual matrix in the case of Institute of Chartered Accountants of India (supra) was entirely different. That was a case where one of the members of the disciplinary committee, participated in deliberation of the council, which was the primary authority for taking a decision in the matter of professional misconduct of a Chartered Accountant. In the present case, consistent with the provisions of Section 91 of the said Act, the matter has to be first considered by the BCUD and BCUD thereafter has to place the notice, written statement with or without motion for withdrawal of privileges before the Academic Council. Thereafter, it is for the Academic Council based upon such material to recommend action, which ultimately the Vice Chancellor is required to implement. In such circumstances, we see no merit whatsoever in the third contention of Mr. Mahadeshwar concerning the involvement of Dr. Pargaonkar.

30. Insofar as the contention based upon mala fides is concerned, as noted above, the allegations indeed appear to be vague and lacking in material particulars. Further, the person/persons against whom such allegations have been made have not even been impleaded as parties to this petition. Records disclose that the Vice Chancellor has recused himself from the decision making process. The circumstance that there are illegalities or deficiencies in functioning of some other institution and action has not been initiated against them is irrelevant. Obviously, the Petitioner cannot claim any equality in matters of alleged illegalities. In the circumstances, we are unable to entertain the plea of mala fides.

31. In the result, the impugned decision to disaffiliate the said college from academic year 2014-2015 is hereby quashed and set aside. However, taking into consideration the material on record, we grant liberty to the Respondent no.1 to decide this issue afresh, on the basis of existing material on record. In the event, the Petitioner desires to place any additional material on record to demonstrate that no deficiencies exist or that the same have been attended to, the Petitioner may do so within a period of two weeks from today. The Respondent no.1 shall take a fresh decision in the matter within a period of six weeks from today. Needless to observe, that the Respondent no.1 shall take care to disclose reasons for their decision. We make it clear that we have not adverted to the merits of the matter, i.e., the issues of compliances or otherwise, as we accept that these are basically matters for specialized bodies to examine.

32. As a result of setting aside the order of disaffiliation, in case the Petitioner desires to admit students to the said college for the academic year 2014-2015, the Petitioner may admit students only on a provisional basis. Further, it shall be incumbent upon the Petitioner to make it clear to the students that such provisional admission is subject to continuance of affiliation by the Respondent No.1 and that in the event affiliation is declined, such provisionally admitted students shall have to make alternate arrangements for pursuing the course to which they have been so admitted.

33. Accordingly, we pass the following order:

(a) The impugned decision disaffiliating the said college from the academic year 2014-2015 is hereby quashed and set aside;

(b) Notwithstanding aforesaid, the Respondent no.1 is at liberty to take a fresh decision on the issue of disaffiliation within a period of six weeks from today, either on basis of the material already existing on record and/or such further material as may be placed on record by the Petitioner within a period of two weeks from today;

(c) In case the Petitioner desires to admit students to the said college for the academic year 2014-2015, the Petitioner may admit students only on a provisional basis. Further, it shall be incumbent upon the Petitioner to make it clear to the students in writing that such provisional admission is subject to continuance of affiliation by the Respondent No.1 and that in the event affiliation is declined, such provisionally admitted students shall have to make alternate arrangements for pursuing the course to which they have been so admitted.

34. Since the admissions are given on line, we direct Respondent Nos.1 and 2 to make it clear to the students seeking admission to the Petitioner's college that the admission granted would be provisional and subject to continuance of affiliation as directed by us above.

35. Rule is made absolute to the aforesaid extent.

36. There shall be no order as to costs.

Ordered accordingly.