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 02nd May 2003.

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

The said Committee submitted its report on or about 30th May 2003.   

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

adopted  in  a  meeting  held  on  05th 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 03rd 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 17th May 2004, a copy of the said Enquiry Report was

sent  to  the  3rd respondent.   He was  also  informed that  a  meeting  of  the

Managing Committee  would be held on 01st 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 05th 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 15th June 2004.  He submitted his reply on 23rd 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  20th

November 2005.   

8. Respondent no.1, however, passed an order on 31st December 2005

staying the operation of the order of suspension.  On or about 04th 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 1st 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 1st 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 12th 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  1st 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 1st

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

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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

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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

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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

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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

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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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