2011 ALL SCR 930
SUPREME COURT

MARKANDEY KATJU AND GYAN SUDHA MISHRA, JJ.

Bharat Ratna Indira Gandhi College Of Engineering & Ors. Vs. State Of Maharashtra & Ors.

Civil Appeal No.2704 of 2011,S.L.P.(C) No.13944 of 2009,Civil Appeal No.2705-2716 of 2011,Civil Appeal No. 2776 of 2011,Civil Appeal No. 2717-2725 of 2011,Civil Appeal No. 2727 of 2011,Civil Appeal No. 2728 of 2011,Civil Appeal No. 2731-2736 of 2011,Civil Appeal No. 2738-2744 of 2011,Civil Appeal No. 2746-2769 of 2011,S.L.P. (C) No.15363 of 2009,S.L.P. (C) No. 15353 of 2009,S.L.P. (C) No. 15367 of 2009,S.L.P. (C) No. 15360 of 2009,S.L.P. (C) No. 14976 of 2009,S.L.P. (C) No. 14844 of 2009,S.L.P. (C) No. 14845 of 2009,S.L.P. (C) No. 15358 of 2009,S.L.P. (C) No. 15364 of 2009,S.L.P. (C) No. 15310 of 2009,S.L.P. (C) No. 15333 of 2009,SLP (C) No.8960 of 2011,CC9074 of 2009,S.L.P. (C) No. 15331 of 2009,S.L.P. (C) No. 15335 of 2009,S.L.P. (C) No. 15408 of 2009,S.L.P. (C) No. 17331 of 2010,S.L.P. (C) No. 13866 of 2009,S.L.P. (C) No. 13868 of 2009,S.L.P. (C) No. 13869 of 2009,S.L.P. (C) No.20675 of 2010,S.L.P. (C) No.0674 of 2010,S.L.P. (C) No.17596 of 2010,S.L.P. (C) No.17597 of 2010,S.L.P. (C) No.17599 of 2010,S.L.P. (C) No.17600-17613 of 2010,S.L.P. (C) No.17615 of 2010,S.L.P. (C) No.17332 of 2010,S.L.P. (C) No.25735 of 2010,S.L.P. (C) No.25738 of 2010,S.L.P. (C) No.25737 of 2010,S.L.P. (C) No.25736 of 2010,S.L.P. (C) No.19018 of 2010,S.L.P. (C) No.19020 of 2010,S.L.P. (C) No.19022 of 2010,S.L.P. (C) No.19023 of 2010,S.L.P. (C) No.20529 of 2010,S.L.P. (C) No.29386 of 2010,S.L.P. (C) No.23493 of 2010,S.L.P. (C) No.23494 of 2010,S.L.P. (C) No.24033 of 2010,S.L.P. (C) No.24034 of 2010,S.L.P. (C) No.25744 of 2010,S.L.P. (C) No.24028 of 2010,S.L.P. (C) No.24029 of 2010,S.L.P. (C) No.23049 of 2010,S.L.P. (C) No.23441 of 2010,S.L.P. (C) No.29841 of 2010,S.L.P. (C) No.25560 of 2009

28th March, 2011

Petitioner Counsel: Mr. GAURAV AGRAWAL
Respondent Counsel: Ms. ASHA GOPALAN NAIR

Constitution of India, Art.226 - Suo motu action by High Court - Information on basis of which action taken not disclosed - High Court directing that if colleges fail to fill vacant posts of principals by 31.5.2009 university should issue orders prohibiting admissions in those colleges - Held High Court has indulged in judicial legislation which is not ordinarily permissible - Moreover none of the colleges were made parties before the High Court and hence direction issued was violative of principles of natural justice. (Paras 11-13)

Cases Cited:
Divisional Manager, Aravali Golf Club Vs. Chander Hass, 2008 ALL SCR 505=(2008)1 SCC 683 [Para 12]


JUDGMENT

JUDGMENT :- Delay condoned.

2. Leave granted.

3. Heard learned counsel for the parties.

4. 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.

5. 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."

6. 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.

7. To say the least, this was a strange procedure adopted by the High Court.

8. 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.

9. Moreover, we have perused the impugned order and we are of the opinion that the directions contained in paragraph 7 of 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.

10. 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.

11. 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.

12. 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 : [2008 ALL SCR 505].

13. 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.

14. Accordingly, we allow these appeals and set aside the impugned order of the High Court. No costs.

15. However, we direct that the process for filing up the posts of Principal may continue in accordance with law, and should be done expeditiously.

Appeals allowed.