REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7319 OF 2008

[Arising out of SLP (C) No.16716 of 2006]

Committee of Management & Anr. … Appellants

Versus

Vice Chancellor & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.Appellants run a Muslim Minority Post Graduate College, commonly

known as Mumtaz Post Graduate College (for short, ‘the college’) at

Lucknow. It is affiliated with the University of Lucknow (for short, ‘the

University’). Third respondent, viz., Dr. Mukhtar Nabi Khan was appointed

as Principal of the said college. On an allegation that a prima facie case had

been made out against the said respondent of having committed various acts

of misconduct, a preliminary enquiry was held pursuant to a resolution

adopted by the Managing Committee in a meeting held on 02

nd

May 2003.

For the said purpose a Committee of three senior members was constituted.

The said Committee submitted its report on or about 30

th

May 2003.

3.Appellants, upon consideration of the said report, by a resolution

adopted in a meeting held on 05

th

June 2003, took a decision to hold a

proper disciplinary enquiry. He was placed under suspension. Vice-

Chancellor of the University was also duly informed thereabout.

4. A charge-sheet containing eight charges was issued against the

respondent no.3. He, however, did not file any show cause/reply thereto.

5.Upon recording evidence of some witnesses, the Enquiry Committee

submitted its report on 03

rd

March 2004 opining that the respondent no.3

was prima facie guilty of gross misconduct, dereliction of duty, causing

wrongful gain to himself and causing wrongful loss to the institution.

Relevant portion of the report of the Enquiry Committee is quoted

heretobelow :

“In view of the aforesaid findings of the inquiry

committee the charged employee can be said to be guilty of

misconduct, dereliction of duty, acting with malafide intentions

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to obtain wrongful gain to himself and wrongful loss to the

college and his unbecoming conduct has resulted in great loss

of goodwill and reputation to the college and thus the college

was being continuously mismanaged by him.”

6.On or about 17

th

May 2004, a copy of the said Enquiry Report was

sent to the 3

rd

respondent. He was also informed that a meeting of the

Managing Committee would be held on 01

st

June 2004 wherein the said

report shall be considered. Respondent no.3, pursuant to the said notice,

appeared before the Managing Committee on the said date. He availed the

opportunity of being personally heard. He also filed his written

submissions.

7.By a resolution adopted by the Managing Committee of the appellant-

institution in a meeting held on 05

th

June 2004, a decision was taken to issue

a second show cause notice to respondent no.3 pursuant whereto a notice

was issued to him on 15

th

June 2004. He submitted his reply on 23

rd

June

2004, inter alia, contending that he had not got an opportunity of cross-

examining the witnesses. A fresh opportunity was, therefore, granted to

him. The Enquiry Officer was also changed. A senior advocate of

Lucknow Bench of Allahabad High Court was appointed as the Enquiry

Officer. Respondent no.3, however, made allegations of bias against him

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whereupon another Enquiry Officer, viz., Aftab Ahmad Siddiqui, Advocate

was appointed. The said Enquiry Officer submitted his report on 20

th

November 2005.

8.Respondent no.1, however, passed an order on 31

st

December 2005

staying the operation of the order of suspension. On or about 04

th

February

2006, the Managing Committee, upon hearing the respondent no.3 in

person, passed a resolution that he be removed from service. A report

thereabout, as envisaged under the proviso appended to sub-section (2) of

Section 35 of the U.P. Universities Act, 1973 (for short, ‘the Act’), was sent

to the 1

st

respondent. By reason of an order dated 07th/12th July 2006, the

Vice-chancellor refused to grant approval to the proposal of the Managing

Committee in regard to the removal of respondent no.3 stating :

“It is clear from the decision of management committee

of the College and related records/papers that removal from

service of Dr. M.N. Khan, Principal Mumtaz Post Graduate

Degree College, Lucknow is not in accordance with the

procedures established by the governing/managing

body/college. The said decision of removal from service of

managing body of the college is not in accordance to the

provisions of 35(2) of 1

st

Statute of Lucknow University and is

therefore, liable to be struck down.

Therefore, in exercising of the power conferred under

Section 35(2) of U.P. State University Act 1973, to Vice

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Chancellor in this context, the Managing Committee, college is

directed that Dr. M.N. Khan be allowed to work as Principal

with all benefits because decision of the managing body for

removal from service is ex-parte unsatisfactory and not as per

law.

In the matter under reference, since as per his

representation dated 24.4.2006 Dr. M.N. Khan Principal has

attained the age of superannuation on 3.1.2006 the Managing

Committee of College is directed to consider and take steps for

retirement of Dr. M.N. Khan in accordance with rules.”

9.Challenging the legality and/or validity of the said order, the

appellants filed writ petition before the High Court which, by reason of the

impugned order, has been dismissed, stating :

“Against the impugned order dated 7/12.7.2006 passed

by the Vice Chancellor, Lucknow University, Lucknow, the

petitioner has an alternative and efficacious remedy before the

Chancellor under Section 68 of U.P. State Universities Act,

1973. The record reveals that opposite party No.3, has already

attained the age of superannuation on 3.1.2006 and the

academic session 2005-06 has also come to an end on

30.6.2006.

We, therefore, dismiss the instant writ petition on the

ground of alternative remedy available to the petitioner. The

Vice Chancellor, Lucknow University, Lucknow, shall not

insist for reinstatement of the opposite party No.3 in service as

the opposite party No.3, has already attained the age of

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superannuation on 3.1.2006 and the academic session 2005-06

has also come to an end on 30.6.2006.”

10.Appellants are thus before us.

11.By an order dated 12

th

November 2007, in view of the contention that

the appellants intended to question the constitutionality of sub-section (2) of

Section 35 of the Act as also the applicability of the University Statute in

the light of clause (1) of Article 30 of the Constitution of India, they were

permitted to raise additional grounds pursuant whereto additional grounds

have been taken.

12.Mr. Anoop G. Choudhari, learned senior counsel appearing on behalf

of the appellants would urge :

i) Sub-section (2) of Section 35 of the Act as also the proviso thereto

is ultra vires clause (1) of Article 30 of the Constitution of India.

ii) The High Court, in a case of this nature, where the validity and/or

interpretation of different provisions of the Act vis-à-vis the validity

of the order of the 1

st

respondent dated 07th/12th July 2006 is

required to be considered and/or the manner in which the same had

been passed, must be held to have committed a serious error in

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dismissing the writ petition on the ground of existence of alternative

remedy.

iii) In a case of this nature, Section 68 of the Act cannot be said to

provide for any efficacious remedy in the hands of the Chancellor and

in that view of the matter, the impugned order should be set aside.

13.Dr. R.G. Padia, learned senior counsel appearing on behalf of the 1

st

respondent on the other hand would contend :

(i)The Statute itself having provided for review of an order

on the decision taken by the Chancellor of the University

subject of course to the law of limitation, must be held to be an

efficacious alternative remedy and in that view of the matter,

the impugned order should not be interfered with; and

(ii) In view of the proviso appended to sub-section (2) of

Section 35 of the Act as only a regulatory power has been

conferred upon the Vice Chancellor and not a power to grant

prior approval as envisaged under the main provision, the said

Statute cannot be said to be ultra vires the provisions of the

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Constitution of India as such regulatory measures are

permissible in law.

14.The U.P. State Universities Act, 1973 was enacted with a view to

toning up the academic and financial administration of higher education in

State of U.P. A comprehensive Bill applicable to all the State Universities

(except the Roorkee University and Govind Ballabh Pant Agricultural

University), was prepared in the light of the recommendations made by

various Commissions and Committees appointed by the Government of

India and the State Government and also the views of the Vice-Chancellors

and other educationists.

15.Various officers have been named in the Act to perform their

respective functions as conferred upon them either under the Act or the

Statute. Section 35 of the Act, inter alia, regulates the conditions of service

of an employee in an institution or a college affiliated to the University;

sub-section (2) whereof reads as under :

“35. Conditions of service of teachers of affiliated or

associated colleges other than those maintained by

Government or local authority.

(1)… … … …

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(2)Every decision of the Management of such college to

dismiss or remove a teacher or to reduce him in rank or

to punish him in any other manner shall before it is

communicated to him, be reported to the Vice-

Chancellor and shall not take effect unless it has been

approved by the Vice-Chancellor:

Provided that in the case of colleges established and

administered by a minority referred to in clause (1) of Article

30 of the Constitution of India, the decision of the management

dismissing removing or reducing in rank or punishing in any

other manner any teacher shall not require the approval of the

Vice-Chancellor, but, shall be reported to him and unless he is

satisfied that the procedure prescribed in this behalf has been

followed, the decision shall not be given effect to.”

Section 68 of the Act reads as under :

“68. Reference to the Chancellor.-If any question arises

whether any person has been duly elected or appointed as, or is

entitled to be, member of any authority or other body of the

University, or whether any decision of any authority or officer

of the University (including any question as to the validity of a

Statute, Ordinance or Regulation, not being a Statute or

Ordinance made or approved by the State Government or by

the Chancellor) is in conformity with this Act or the Statutes or

the Ordinance made thereunder, the matter shall be referred to

the Chancellor and the decision of the Chancellor thereon shall

be final:

Provided that no reference under this section shall be

made-

(a)more than three months after the date when the question could

been raised for the first time;

(b)by any person other than an authority or officer of the University

or a person aggrieved :

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Provided further that the Chancellor may in exceptional

circumstances-

(a)act suo motu or entertain a reference after the expiry of the

period mentioned in the preceding proviso;

(b)where the matter referred relates to a dispute about the

election, and the eligibility of the person so elected is in doubt,

pass such orders of stay as he thinks just and expedient;

(c)* * * * *”

Statute 17.06, which is relevant for our purpose, is reproduced below :

“17.06.(1) No order dismissing, removing or terminating the

services of a teacher on any ground mentioned in clause (1) or

clause (2) of Statute 17.04 (except in the case of a conviction

for an offence involving moral turpitude or of abolition of post)

shall be passed unless a charge has been framed against the

teacher and communicated to him with a statement of the

grounds on which it is proposed to take action and he has been

given adequate opportunity:-

(i)of submitting a written statement of his defence;

(ii)of being heard in person, if he so chooses, and

(iii)of calling and examining such witness in his defence as he may

wish;

Provided that the Management or the officer authorized by it to

conduct the inquiry may, for sufficient reasons to be recorded

in writing, refuse to call any witness.

(2) The management may, at any time ordinarily within two

months from the date of the Inquiry Officer’s report pass a

resolution dismissing or removing the teacher concerned from

service, or terminating his services mentioning the grounds of

such dismissal, removal or termination.

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(3) The resolution shall forthwith be communicated to the

teacher concerned and also be reported to the Vice-Chancellor

for approval and shall not be operative unless so approved by

the Vice-Chancellor.

(4) The Management may, instead of dismissing, removing or

terminating the services of the teacher, pass a resolution

inflicting a lesser punishment by reducing the pay of the

teacher for a specified period or by stopping increments of his

salary for a specified period, not exceeding three years and/or

may deprive the teacher of his pay during the period, if any, of

his suspension. The resolution by the Management inflicting

such punishment shall be reported to the Vice-Chancellor and

shall be operative only when and to the extent approved by the

Vice-Chancellor.”

16.Chancellor of the University has been conferred a wide power.

Howsoever wide the power may be, the Chancellor, in terms of the

provisions of the Act being a creature of the statute itself cannot consider

the validity thereof. Constitutionality of a statute, keeping in view the fact

that the power of judicial review has been conferred by the Constitution of

India only in superior courts of the country, cannot be determined by any

other authority howsoever high it may be.

17.The Chancellor, in terms of the said provision, may consider a matter

relating to a decision of any authority or officer of the University as to

whether the same is in conformity with the Act or the Statute or the

ordinance made thereunder. Prima facie, the Chancellor is not supposed to

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consider an intricate question of law involving interpretation of the Statute

vis-à-vis the jurisdictional fact of an authority. The matter might have been

different if the Chancellor was required to go into only the factual aspect of

the matter. Appellants, apart from questioning the validity of the Act and/or

the Statute also allege commission of jurisdictional error on the part of the

Vice Chancellor in implementing the provisions of a Statute.

18. Dr. Padia placed strong reliance upon a decision of this Court in the

case of Management Committee, Atarra Post Graduate College v. Vice

Chancellor, Bundelkhand University, Jhansi & Anr. 1990 (Supp.) SCC 773

to contend that the power of the Chancellor is wide in nature. In that case,

the question which arose for consideration was as to whether the Vice

Chancellor had properly appreciated the circumstances of the case or

whether his decision was totally perverse and passed in ignorance of the

mass of evidence of the Committee of Management as also several

witnesses examined before him regarding the conduct of the meetings. It

was in the aforementioned situation, this Court observed :

“…. In our opinion it is not for this Court to appraise the

factual circumstances and come to a conclusion whether the

order of the Vice Chancellor is correct or not, particularly when

it is open to the aggrieved party, under Section 68 of the U.P.

State University Act, to have a reference made to the

Chancellor of the University who has ample powers to decide

whether any decision taken by any authority or officer is in

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conformity with the statutes and ordinances of the University.

In view of this provision it is open to the Committee of

Management to make a reference to the Chancellor to decide

the issue regarding the validity of the termination of the

services of Dr. Gaur and of the order of the Vice Chancellor.

….”

19.This Court, therefore, having regard to the factual matrix obtaining

therein, refused to exercise its discretionary jurisdiction.

20.Apart from the fact that a statutory authority cannot consider the

validity of a Statute, as has been urged before us by Mr. Choudhari, it is

beyond any doubt or dispute that availability of an alternative remedy by

itself may not be a ground for the High Court to refuse to exercise its

jurisdiction. It may exercise its writ jurisdiction despite the fact that an

alternative remedy is available, inter alia, in a case where the same would

not be an efficacious one.

21.Furthermore, when an order has been passed by an authority without

jurisdiction or in violation of the principles of natural justice, the superior

courts shall not refuse to exercise their jurisdiction although there exists an

alternative remedy. In this context, it is appropriate to refer to the

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observations made by this Court in the case of Whirlpool Corporation v.

Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 :

“15. …. But the alternative remedy has been consistently held by

this Court not to operate as a bar in at least three contingencies,

namely, where the writ petition has been filed for the

enforcement of any of the Fundamental Rights or where there

has been a violation of the principle of natural justice or where

the order or proceedings are wholly without jurisdiction or the

vires of an Act is challenged. ….”

[See also Guruvayoor Devaswom Managing Committee & Anr.

v. C.K. Rajan & Ors. (2003) 7 SCC 546]

In this case, albeit, before us for the first time, the vires of the proviso

appended to Section 16 of the Act is in question, besides other points

noticed by us hereinbefore.

22.Dr. Padia relied upon a Division Bench decision of the Allahabad

High Court in the case of Manvendra Misra (Dr.) v. Gorakhpur University,

Gorakhpur & Ors. (2000) 1 UPLBEC 702 wherein Hon’ble Katju, J. (as His

Lordship then was), speaking for a Division Bench of the said Court, opined

that refusal to entertain a writ application on the ground of existence of an

alternative remedy is entirely a matter of discretion though, of course, the

discretion should not be exercised arbitrarily. It was held :

“…. Since writ jurisdiction is discretionary jurisdiction hence if

there is an alternative remedy the petitioner should ordinarily

be relegated to his alternative remedy. This is specially

14

necessary now because of the heavy arrears in the High Court

and this Court can no longer afford the luxury of entertaining

writ petitions even when there is an alternative remedy in

existence. No doubt alternative remedy is not an absolute bar,

but ordinarily a writ petition should not be entertained if there

is an alternative remedy.”

[Emphasis supplied]

23.Thus, even therein no legal principle has been laid down that in all

situations, the High Court would refuse to exercise its discretionary

jurisdiction only on the ground that an alternative remedy is available. We

may notice that Dr. Padia himself, in his usual fairness, has brought to our

notice several decisions which upheld the validity of the regulatory power

on the part of the University or affiliating bodies in the matter of order of

dismissal, removal or suspension of an employee, viz., Frank Anthony

Public School Employees’ Association v. Union of India & Ors. (1986) 4

SCC 707; Mrs. Y. Theclamma v. Union of India & Ors. (1987) 2 SCC 516

and Christian Medical College Hospital Employees’ Union & Anr. etc. v.

Christian Medical College Vellore Association & Ors. etc. (1987) 4 SCC

691, on the one hand, and the decisions opining that such a wide power

cannot be conferred on a university, institution and minority institution

being Yunus Ali Sha v. Mohamed Abdul Kalam & Ors. (1999) 3 SCC 676

15

and Committee of Management, St. John Inter College v. Girdhari Singh &

Ors. (2001) 4 SCC 296. Our attention has also been drawn to a recent

decision of this Court in the case of Secy., Malankara Syrian Catholic

College v. T. Jose & Ors. (2007) 1 SCC 386 wherein it was held :

“19. The general principles relating to establishment and

administration of educational institution by minorities may be

summarized thus :

(i)… … …

(ii)… … …

(iii)The right to establish and administer educational institutions is

not absolute. Nor does it include the right to maladminister.

There can be regulatory measures for ensuring educational

character and standards and maintaining academic excellence.

There can be checks on administration as are necessary to

ensure that the administration is efficient and sound, so as to

serve the academic needs of the institution. Regulations made

by the State concerning generally the welfare of students and

teachers, regulations laying down eligibility criteria and

qualifications for appointment, as also conditions of service of

employees (both teaching and non-teaching), regulations to

prevent exploitation or oppression of employees, and

regulations prescribing syllabus and curriculum of study fall

under this category. Such regulations do not in any manner

interfere with the right under Article 30(1).

(iv)… … …

(v)… … …

20.Aided institutions give instruction either in secular

education or professional education. Religious education is

barred in educational institutions maintained out of the State

funds. These aided educational minority institutions providing

secular education or professional education should necessarily

16

have standards comparable with non-minority educational

institutions. Such standards can be attained and maintained

only by having well-qualified professional teachers. An

institution can have the services of good qualified professional

teachers only if the conditions of service ensure security,

contentment and decent living standards. That is why the State

can regulate the service conditions of the employees of the

minority educational institutions to ensure quality of education.

Consequently, any law intended to regulate the service

conditions of employees of educational institutions will apply

to minority institutions also, provided that such law does not

interfere with the overall administrative control of the

management over the staff.

21.We may also recapitulate the extent of regulation by the

State, permissible in respect of employees of minority

educational institutions receiving aid from the State, as

clarified and crystallized in T.M.A. Pai Foundation v. State of

Karnataka (2002) 8 SCC 481. The State can prescribe :

(i)… … …

(ii)the service conditions of employees without interfering

with the overall administrative control by the management over

the staff,

(iii)… … …

(iv)… … …”

24.Whether in a case of this nature such a power has properly been

exercised or not, in our opinion, being an intricate question should

ordinarily fall for determination by the High Court itself. Our attention has

also been drawn to a decision of a Seven-Judge Bench of this court in the

17

case of P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC

537 wherein it has been held :

“126. The observations in para 68 of the majority

opinion in T.M.A. Pai Foundation v. State of Karnataka (2002)

8 SCC 481 on which the learned counsel for the parties have

been much at variance in their submissions, according to us, are

not to be read disjointly from other parts of the main judgment.

A few observations contained in certain paragraphs of the

judgment in Pai Foundation if read in isolation, appear

conflicting or inconsistent with each other. But if the

observations made and the conclusions derived are read as a

whole, the judgment nowhere lays down that unaided private

educational institutions of minorities and non-minorities can be

forced to submit to seat-sharing and reservation policy of the

State. Reading relevant parts of the judgment on which learned

counsel have made comments and counter-comments and

reading the whole judgment (in the light of previous judgments

of this Court, which have been approved in Pai Foundation) in

our considered opinion, observations in para 68 merely permit

unaided private institutions to maintain merit as the criterion of

admission by voluntarily agreeing for seat-sharing with the

State or adopting selection based on common entrance test of

the State. There are also observations saying that they may

frame their own policy to give freeships and scholarships to the

needy and poor students or adopt a policy in line with the

reservation policy of the State to cater to the educational needs

of the weaker and poorer sections of the society.”

25.Keeping in view the legal questions arising in the matter, we are of

the opinion that it was not a fit case where the High Court should have

18

refused to exercise its discretionary jurisdiction to entertain the writ

application.

26.For the aforementioned reasons, the impugned order cannot be

sustained and is set aside accordingly. The appeal is allowed accordingly.

The High Court is requested to consider the matter on merits. No costs.

……………………………….J.

[S.B. Sinha]

..…………………………..…J.

[Cyriac Joseph]

New Delhi.

December 16, 2008

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