# Shri Radha Govind Mahavidyalya, Aligarh & another v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 829
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-23
- **Case number:** Civil Misc. Writ Petition No. 49968 of 2007
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-radha-govind-mahavidyalya-aligarh-another-v-state-of-u-p-and-others-41528
- **Pages:** 11

## Headnote

State Universities Act- 1972 Section
17(B) readwith National Council For
Teachers Education Act 1993- Section
14(b)- Recognition to run B.Ed. Classes
given
by
N.C.E.T.
Recognition
withdrawn-by
Registrar
without
following the procedure prescribed in
statutory
provision
on
complain
of
M.L.A.-Held-unless
recognition
withdrawn by NCET-University can not
revoke application order impugned set-a
side.

Held: Para 16 & 20

In view of aforesaid provision, it is clear
that power of withdrawal of affiliation is
only to Executive Council of University,
therefore, the authority as per direction
by this Court, Executive Council of
University has passed an order. Since
N.C.T.E is not a affiliating body and has
no power to grant affiliation, as such,
N.C.T.E has got no power to withdraw
the affiliation of the college. Under
Section 14(3)(a) of the Act, N.C.T.E is the
authority to grant recognition on certain
conditions.
The
recognition
and
affiliation are entirely different things.
For granting affiliation, recognition by
N.C.T.E is not only condition but one of
the condition. Recognition is granted
under N.C.T.E Act while affiliation is
granted under the U.P. Universities Act
by
the
State
Government
on
the
recommendation of the University after
making spot inspection by panels of
inspector
as
per
provisions
of
the
statutes, therefore, power of withdrawal
of affiliation vest only to the Executive
Council as per Section 37(8) of the State
Universities Act.

In view of aforesaid fact, I am of opinion
that order impugned cannot be sustained
as from the record it appears that
Executive Council has not taken a
decision in a proper manner as provided
and if University authority on the basis
of complaint and inspection has come to
the
conclusion
that
petitioners'
institution does not fulfil the criteria, as
required, after making inspection should
have submitted a report to the National
Council
of
Teachers
Education
for
passing the appropriate orders. Once
recognition has been given, affiliation
can be withdrawn in a proper manner
provided under the statute. If it has not
been adopted, the order passed by
respondents will not be just and proper.
Case law discussed:
(2006)9 Supreme Court Cases, 1, 1975
Supreme Court Cases, 915, 2005(3) ESC,

## Text

3 All] Shri Radha Govind Mahavidyalya, Aligarh & another V. State of U.P. and others
829
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2009

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 49968 of 2007

Shri
Radha
Govind
Mahavidyalaya
Heerapur
(Gopi)
Aligarh,
U.P.
and
another

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri R.N. Singh
Sri S.B. Singh

Counsel for the Respondents:
Sri Sanjay Kumar Singh
S.C.

State Universities Act- 1972 Section
17(B) readwith National Council For
Teachers Education Act 1993- Section
14(b)- Recognition to run B.Ed. Classes
given
by
N.C.E.T.
Recognition
withdrawn-by
Registrar
without
following the procedure prescribed in
statutory
provision
on
complain
of
M.L.A.-Held-unless
recognition
withdrawn by NCET-University can not
revoke application order impugned set-a
side.

Held: Para 16 & 20

In view of aforesaid provision, it is clear
that power of withdrawal of affiliation is
only to Executive Council of University,
therefore, the authority as per direction
by this Court, Executive Council of
University has passed an order. Since
N.C.T.E is not a affiliating body and has
no power to grant affiliation, as such,
N.C.T.E has got no power to withdraw
the affiliation of the college. Under
Section 14(3)(a) of the Act, N.C.T.E is the
authority to grant recognition on certain
conditions.
The
recognition
and
affiliation are entirely different things.
For granting affiliation, recognition by
N.C.T.E is not only condition but one of
the condition. Recognition is granted
under N.C.T.E Act while affiliation is
granted under the U.P. Universities Act
by
the
State
Government
on
the
recommendation of the University after
making spot inspection by panels of
inspector
as
per
provisions
of
the
statutes, therefore, power of withdrawal
of affiliation vest only to the Executive
Council as per Section 37(8) of the State
Universities Act.

In view of aforesaid fact, I am of opinion
that order impugned cannot be sustained
as from the record it appears that
Executive Council has not taken a
decision in a proper manner as provided
and if University authority on the basis
of complaint and inspection has come to
the
conclusion
that
petitioners'
institution does not fulfil the criteria, as
required, after making inspection should
have submitted a report to the National
Council
of
Teachers
Education
for
passing the appropriate orders. Once
recognition has been given, affiliation
can be withdrawn in a proper manner
provided under the statute. If it has not
been adopted, the order passed by
respondents will not be just and proper.
Case law discussed:
(2006)9 Supreme Court Cases, 1, 1975
Supreme Court Cases, 915, 2005(3) ESC,
1610.

(Delivered by Hon'ble Shishir Kumar, J.

1. This writ petition as well as W.P.
No. 49973 of 2007 and W.P. No.49970 of
2007 have been filed for quashing the
decision of the Executive Council dated
11.3.2007 communicated by the Registrar
vide its letter dated 25.5.2007. Further a
writ
in
the
nature
of
mandamus
commanding the respondent-University to
permit
the
students
of
petitioners'
830 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
institution to appear in the examination of
B.Ed which are being conducted by the
University in near future.

2. The facts arising out of the writ
petition are that petitioners in Writ
Petition No.49968 of 2007, on 27.12.2002
'No Objection Certificate' was issued by
the State Government for setting up an
institution for running B.Ed course under
the Self Financing Scheme with effect
from the academic session 2003-04. No
Objection Certificate was subject to the
condition that recognition was granted by
the
National
Council
for
Teachers
Education. The National Council for
Teacher Education granted recognition to
petitioners' institution for running B.Ed
course for one year duration with effect
from academic session 2003-04. On
30.1.2004, the Chancellor passed an order
granting affiliation to the aforesaid
college with effect from 1.7.2004 for a
period of one year. An application was
made for extension of affiliation with
effect from 1.7.2005. On 5.12.2005,
Chancellor passed an order refusing to
extend the affiliation for the Session
2005-06. The said communication was
communicated to petitioners vide its letter
dated 10.1.2006. A representation to that
effect was made stating therein that
objections taken for refusing extension
does not exist and appears to be
misconceived. Before any order is passed
one Amar Singh Yadav, a member of
Legislative Assembly made a complaint
before the Vice Chancellor in respect of
grant of affiliation to the colleges run by
petitioner No.2 which was followed by
filing Public Interest Litigation as Writ
Petition No.46708 of 2006. The aforesaid
writ petition was disposed of finally to
consider the matter by an appropriate
authority.
In
compliance,
the
Vice
Chancellor directed the Registrar to
proceed with the matter and a Three
Member Committee is constituted for
inquiring into the allegations against
petitioners' college. The Three Member
Committee submitted their report on
27.10.2006, then a show cause notice was
issued by the Registrar. Petitioners have
submitted reply and an order was
communicated to petitioners by the
Registrar withdrawing the affiliation of
petitioners' college. Hence, the present
writ petition.

3. The facts of the other connected
writ petitions mentioned above are also
the same, therefore, it is not necessary to
mention it again.

4. Sri G.K. Singh, learned Advocate
appearing for petitioners has submitted
before this Court that affiliation granted to
petitioners'
college
could
not
be
withdrawn by respondent-University. The
Colleges
in
question
were
granted
affiliation
by
National
Council
for
Teachers Education as per Section 14(1)
of the National Council for Teachers
Education Act, 1993. Section 14(6) of the
aforesaid Act clearly provides that every
examining body shall on receipt of order
under Sub-Section (4) grant affiliation to
the institutions, where recognition has
been granted or cancel the affiliation of
the institution, where recognition has been
refused. From the aforesaid facts and
circumstances, it is therefore, clear that
where college is recognised by the
National Council for Teachers Education
(NCTE),
examining
body
i.e.
the
University is bound to give affiliation to
the said college. If for some reason, it is
felt by the governing body that the college
in question was not entitled to have such
recognition or affiliation it can always
3 All] Shri Radha Govind Mahavidyalya, Aligarh & another V. State of U.P. and others
831
bring the relevant facts and circumstances
to the knowledge of the NCTE for its
consideration
and
based
upon
the
aforesaid information. NCTE can always
withdraw
recognition
which
would
automatically result in withdrawal of the
recognition of the University. Section 17
of the National Council for Teachers
Education Act, 1993 clearly provides that
the Regional Committee of the aforesaid
council on its own motion or on any
representation received from any person
on being satisfied that the recognised
institution has contravened any provision
of the Act, Rules, Regulations or orders
made by it or any condition subject to
which recognition under the Act was
granted, may withdraw recognition of
such recognised institution.

5. In case of the respondentUniversity was of the view that college in
question was not entitled to have
recognition or affiliation it could have
referred the matter to N.C.T.E for
necessary action under Section 17(1) of
the Act. N.C.T.E Act 1993 being a
Central Act would have an over-riding
effect upon the State Universities Act,
1973. The submission to this effect relied
by respondents that order of recognition
granted by N.C.T.E, as the college in
question failed to fulfil the conditions
mentioned therein, it is always open to the
examining
body
to
withdraw
the
affiliation granted to the college. Clause 3
(f) of the order of recognition granted by
N.C.T.E provides that non-compliance of
the conditions mentioned, an action can
be initiated under Section 17(1) of the Act
to withdraw recognition. In view of
aforesaid
provision,
if
respondentUniversity was of opinion that college in
question does not fulfil the requisite
conditions for grant of recognition or
affiliation, the matter could have been
referred to N.C.T.E for appropriate action
as provided under Section 17(1) of the
Act. Further submission has been made
by learned counsel for petitioners that it is
for this reason that this Court while
disposing of the writ petition filed by Sri
Amar Singh Yadav has issued a direction
to the Vice-Chancellor to refer the matter
to appropriate authority and according to
the direction, matter would have been
placed before the appropriate authority
i.e. N.C.T.E. The Executive Council of
the University on its own has no
jurisdiction to withdraw the affiliation in
favour of petitioners because as per
Section 14 (6) of the N.C.T.E Act,
examining body is bound to grant
affiliation to a college which has been
given recognition by the N.C.T.E. In
(2006) 9 Supreme Court Cases, 1, State
of Maharashtra Vs. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya and
others, the Apex Court has held that
provision of NCTE Act will have an overriding effect upon the State Universities
Act and the State Government and the
Examining Body are bound by the orders
passed by N.C.T.E. Paragraphs 63 and 74
are relevant for the said purposes. The
same is reproduced below:-

"63. In the instant case, admittedly,
Parliament has enacted the 1993 Act,
which is in force. The preamble of the Act
provides for establishment of National
Council for Teacher Education (NCTE)
with a view of achieving planned and
coordinated development of the teachereducation system throughout the country,
the regulation and proper maintenance of
norms and standards in the teacher
education
system
and
for
matters
connected therewith. With a view of
achieving that object, the National
832 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Council for Teacher Education has been
established at four places by the Central
Government. It is thus clear that the field
is fully and completely occupied by an Act
of Parliament and covered by Entry 66 of
List I of Schedule VII. It is, therefore, not
open to the State Legislature to encroach
upon the said field. Parliament alone
could have exercised the power by making
appropriate law. In the circumstances, it
is not open to the State Government to
refuse permission relying on a State Act
or on "policy consideration'.
74. It is thus clear that the Central
Government has considered the subject of
secondary
education
and
higher
education at the national level. The Act of
1993 also requires Parliament to consider
teacher -education system "throughout
the country". NCTE, therefore, in our
opinion,
is
expected
to
deal
with
applications for establishing new Bed
colleges or allowing increase in intake
capacity, keeping in view the 1993 Act
and
planned
and
coordinated
development of teacher-education system
in the country. It is neither open to the
State Government nor to a university to
consider the local conditions or apply
"State policy" to refuse such permission.
In fact, as held by this Court in cases
referred
to
hereinabove,
the
State
Government has no power to reject the
prayer of an institution or to overrule the
decision of NCTE. The action of the State
Government, therefore, was contrary to
law and has rightly been set aside by the
High Court."

6. Further submission has been
made
by
the
learned
counsel
for
petitioners that while withdrawing the
affiliation,
provisions
of
the
State
Universities Act has not been followed, as
such, the order is liable to be quashed.
7. Section 37 of the Universities Act
deals with the affiliation. Sub-Section (7)
of the aforesaid provision provides that
Executive Council may direct an affiliated
college so inspected to take such action as
may appear to it to be necessary within a
specific period. Sub Section (8) provides
that, in case, the affiliated college fails to
comply any of the direction of the
Executive Council under Sub Section (7)
or to fulfil the conditions of affiliation
may, after obtaining a report from the
Management of the College and with the
previous sanction of the Chancellor, be
withdrawn or curtailed by the Executive
Council in accordance with the provisions
of the statutes. The Executive Council
shall get the college inspected and
thereafter it shall give a direction as may
appear to be necessary and it is only when
the college fails to comply with the said
direction given by the Executive council
or to fulfil the conditions of the affiliation,
then Executive Council will proceed to
withdraw or curtail the affiliation but it
has to be after giving an opportunity of
hearing to the management and with the
previous sanction of the Chancellor.

8. In the present case, upon
complaint made by one Sri Amar Singh
Yadav and in view of the order of this
Court, an inquiry was initiated by the
Vice Chancellor and a Three Member
Committee was constituted. The ViceChancellor constituted Three Member
Committee and this was not done by the
Executive Council. The report of the
enquiry
officer
was
submitted
on
27.10.2006 and based upon aforesaid
report a show cause notice was issued by
the Registrar on 28.10.2006. The said
report was also not placed before the
Executive Council before issuance of the
said show cause notice. The Executive
3 All] Shri Radha Govind Mahavidyalya, Aligarh & another V. State of U.P. and others
833
council has not given any direction to
petitioners' college after considering the
report of the Three Member Committee.
The matter was placed directly before the
Executive Committee on 11.3.2007 and it
was decided to withdraw the affiliation
and the same was communicated to
petitioners through Registrar and no
reasons have been recorded. The reasons
given
by
Executive
Council
that
Executive Council has applied its mind
has also not been brought on record.
There is no prior sanction of Chancellor
before withdrawing the affiliation of the
petitioners'
college.
The
letter
of
Chancellor dated 7th August, 2006 also
finds reference of letter of Registrar dated
25.5.2007 which is impugned in the writ
petition. The letter dated 7.8.2006 would
show that by means of the aforesaid order,
a simple direction has been given by the
Chancellor to initiate proceedings under
Section 37(8) of the Act, in respect of
affiliation of aforesaid colleges and to
take action in accordance with law. This
cannot be said to be an order of sanction
by the Vice-Chancellor. After enquiry
report of the Three Member Committee
was received by the University, a letter
was sent to the Chancellor on 14.11.2006.
By this letter, approval of the Chancellor
was sought. However, without waiting for
an order from Vice Chancellor granting or
disapproving the approval, matter was
placed before Executive Council and the
decision withdrawing the affiliation of
colleges was taken. From this it appears
that no prior approval of the Chancellor
was ever obtained by Executive Council
before
withdrawing
the
affiliation.
Therefore, there cannot be any proper
procedure adopted by respondents as
provided under Section 33(8) of the Act.

9. A submission has been made by
the learned counsel for petitioners that it
is well settled principle of law that law
requires a thing to be done in a particular
manner. Section 37 of the Act laid down
the procedure which has to be followed
by respondent- authorities. The same has
not been followed. Reliance has been
placed upon a judgement of the Apex
Court reported in 1975, Supreme Court
Cases, 915 Ramchandra Keshav Adke
(Dead) by Lrs. Appellants Vs. Govind
Joti Chavare and others. Para 25 of the
said judgement is relevant for this
purpose. The same is being quoted
below:-

"25. A century ago, in Taylor v.
Taylor, (1875) 1 Ch D 426 Jessel M. R.
adopted the rule that where a power is
given to do a certain thing in a certain
way, the thing must be done in that way or
not at all and that other methods of
performance are necessarily forbidden.
This rule has stood the test of time. It was
applied by the Privy Council, in Nazir
Ahmed v. Emperor, 63 Ind App 372 =
(AIR 1936 PC 253 (2)) and later by this
Court in several cases, Shiv Bahadur
Singh v. State of V. P., (1954) SCR 1098
= (AIR 1954 SC 322 = 1954 Cri LJ 910)';
Deep Chand v. State of Rajasthan. (l962)
SCR 662 = (AIR 1961 SC 1527 = 1961
(2) Cri LJ 705) to a Magistrate making a
record under Sections 164 and 364 of the
Code of Criminal Procedure, 1898. This
rule squarely applies "where indeed, the
whole aim and object of the legislature
would be plainly defeated if the command
to do the thing in a particular manner did
not imply a prohibition to do it in any
other.
Maxwell's
Interpretation
of
Statutes, 11th Edn.pp.362-363."The rule
will be attracted with full force in the
present case, because non-verification of
834 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the surrender in the requisite manner
would frustrate the very purpose of this
provision. Intention of the legislature to
prohibit the verification of the surrender
in a manner other than the one prescribed
is implied in these provisions. Failure to
comply with these mandatory provisions,
therefore had vitiated the surrender and
rendered it non est for the purpose of S. 5
(3) (b)."

10.

Another
Division
Bench
judgement has been reported in 2005(3)
ESC, 1610 M/s Ram Ashrey Lal
Rajendra Kumar Vs. State of U.P. and
others. Paragraph 5 of the said judgement
is being reproduced below:-

"5. When the statute provides for a
particular procedure, the authority has to
follow the same and cannot be permitted
to act in contravention of the same. It has
been
hitherto
uncontroverted
legal
position that where a statute requires to
do a certain thing in a certain way, the
thing must be done in that way or not at
all.
Other
methods
or
mode
of
performance
are
impliedly
and
necessarily forbidden. (Vide Taylor v.
Taylor, (1876) 1 Ch.D.426; Nazir Ahmad
v. King Emperor, AIR 1936 PC 253;
Deep Chand v. State of Rajasthan, AIR
1961 SC 1527; Patna Improvement Trust
v. Shrimati Lakshmi Devi and others, AIR
1963 SC 1077; State of Uttar Pradesh v.
Singhara Singh and others, AIR 1964 SC
358; Nika Ram v. State of Himachal
Pradesh,
AIR
1972
SC
2077;
Ramchandra Keshav Adke (Dead) by Lrs.
V. Govind Joti Chavare and others, AIR
1975 SC 915; Chettiam Veettil Ammad
and another v. Taluk Land Board and
others, AIR 1979 SC 1573; State of Bihar
and another v. J.A.C. Saldanha and
others, AIR 1980 SC 326; A.K. Roy and
another V. State of Punjab and others,
(1986) 4 SCC 326; State of Mizoram v.
Biakchhawana (1995) 1 SCC 156;
J.N.Ganatra v. Morvi Municipality Morvi,
AIR 1996 SC 2520; and Babu Verghese
and others v. Bar Council of Kerala and
others, AIR 1999 SC 1281)."

11. Further submission has been
made that resolution of Executive Council
does not disclose any reason. The
decision
dated
11.3.2007
has
been
communicated by the Registrar vide its
letter dated 25.5.2007. The said letter
does not contain any reason based upon
which
respondent-University
has
proceeded to withdraw the affiliation of
three colleges run by petitioners. Further a
copy of the resolution passed by the
Executive Council dated 11.3.2007 has
also not been appended along with the
reply submitted by the respondents.
However, no document has been filed by
respondents or University has produced
any document to show therein that
application of mind by Executive Council
in the matter. Further the reply submitted
by petitioners have not been taken into
consideration by respondents. The case of
respondents is that no reply has ever been
submitted by petitioners' college. The fact
mentioned herein is totally incorrect. As it
is apparent that the complete proceeding
against
petitioners
were
politically
motivated, therefore, reply submitted by
petitioners has been ignored and order has
been passed without considering the reply
filed by petitioners.

12. In view of aforesaid fact, learned
counsel for petitioners submits that order
impugned is liable to be quashed.

13. On the other hand, counter
affidavit has been filed on behalf of
3 All] Shri Radha Govind Mahavidyalya, Aligarh & another V. State of U.P. and others
835
respondents Nos. 2 and 3 and learned
Standing Counsel has put an appearance
on behalf of respondent No.1.

14. Learned counsel for respondentUniversity submits that as withdrawal of
affiliation proceeding under Section 37
(8) of the U.P. State Universities Act,
1973 was initiated against all three
institutions on the basis of complaint of
one Amar Singh Yadav, the State
Government
on
this
complaint
has
constituted high level Committee of three
officers to inquire the allegations of the
complaint. A spot inspection of the
institutions was made by Committee and a
report was submitted separately for three
institutions mentioning that rooms are not
constructed as per norms and on the spot,
basic required infrastructure as per norms
are not available. On the basis of the
aforesaid report, Chancellor sent a letter
to
Registrar
directing
to
ensure
proceeding in accordance with Section
37(8) of the U.P. Universities Act for
withdrawal
of
the
affiliation.
The
Registrar submitted a detailed report
before the Vice-Chancellor. The Registrar
of the University has issued an order
dated 22.8.2006 to Three Members
Committee of the Executive Council
nominated by the Vice Chancellor to
examine and to study the relevant record
of the institution. The Secretary Higher
Education has also sent a letter dated
17.10.2006
to
the
Vice
Chancellor
enclosing the enquiry report of the
Committee. A joint report was submitted
to the Vice-Chancellor and various short
comings and irregularities were found and
recommended to ask explanation from
institutions. A permission was sought for
sending of show cause notice/explanation
to institutions. Show cause notice was
given
to
institutions
and
various
informations
were
sought
for
on
28.10.2006. After expiry of seven days of
the aforesaid show cause notice dated
28.10.2006, a reminder was also sent for
asking explanation within three days.
Then the matter was placed before
Executive Council for its meeting dated
11.3.2007 and after discussing the entire
aspect of the matter and report it was
decided to withdraw the affiliation of
institution with effect from 11.3.2007.
The decision was communicated by
Registrar to the institutions.

15. Learned counsel for respondents
submits that there are two different
procedure and provisions for granting
affiliation and for withdrawal of granting
affiliation. The affiliation is granted under
Section 37(2) of the Universities Act,
while affiliation can be withdrawn under
section 37(8) of the Act. If the college
fails to comply any direction of Executive
Council under Section 37(7) of the Act,
the provisions of withdrawal of affiliation
can be initiated by competent authority.
The
provisions
and
procedure
of
withdrawal of affiliation has also been
specifically been mentioned in the statute
from para 12.28 to 12.33 which is fully in
consonance of the provisions of Section
49 (m) of the U.P. State Universities Act.
The same is being quoted below:-

"12.28 - Continuance of affiliation shall
depend
on
continued
fulfilment
of
conditions laid down by the University.
12.29 - An affiliated college shall be
deemed to have been dis-affiliated if it
fails to send up any candidate for an
examination conducted by the University
for three successive years.
12.30 - The Executive Council may direct
a college not to admit students to a
particular class if the conditions laid
836 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
down for starting the class have, in the
opinion of the Executive Council, been
disregarded by the college concerned.
The classes may, however, be restarted
with the prior permission of the Executive
Council when the conditions are fulfilled
to its satisfaction.
12.31 - If a college disregards the
requirements of the University regarding
the fulfilment of the conditions of
affiliation and fails to fulfil the conditions
in spite of notice issued by the University,
the Executive Council may, with the
previous sanction of the Chancellor,
suspend the affiliation till the conditions
are fulfilled to the satisfaction of the
Executive Council.
12.32 - (1) The Executive Council may,
with the prior sanction of the Chancellor,
deprive an affiliated college of the
privileges of affiliation either wholly or
for any degree or subject, if it fails to
comply with the directions of the
Executive Council or to fulfil the
conditions of affiliation or for gross
mismanagement, or if for any reason the
Executive Council is opinion that the
college should be deprived of such
affiliation.
(2) If the salaries of the staff are not
paid regularly, or if the teachers are not
paid their salaries to which they were
entitled under the Statutes or the
Ordinances, the college concerned would
be liable to withdrawal of affiliation
within the meaning of this Statute.
12.33 - The Executive Council shall,
before taking any action under the
preceding Statutes, call upon a college to
take, within a specified period, such
action as may appear to be necessary in
respect of any of the matters referred to in
the conditions of affiliation."

16. In view of aforesaid provision, it
is clear that power of withdrawal of
affiliation is only to Executive Council of
University, therefore, the authority as per
direction by this Court, Executive Council
of University has passed an order. Since
N.C.T.E is not a affiliating body and has
no power to grant affiliation, as such,
N.C.T.E has got no power to withdraw the
affiliation of the college. Under Section
14(3)(a) of the Act, N.C.T.E is the
authority to grant recognition on certain
conditions. The recognition and affiliation
are entirely different things. For granting
affiliation, recognition by N.C.T.E is not
only condition but one of the condition.
Recognition is granted under N.C.T.E Act
while affiliation is granted under the U.P.
Universities Act by the State Government
on the recommendation of the University
after making spot inspection by panels of
inspector as per provisions of the statutes,
therefore,
power
of
withdrawal
of
affiliation vest only to the Executive
Council as per Section 37(8) of the State
Universities Act.

17. In N.C.T.E Act there is no
provision of withdrawal of the affiliation.
There is a proviso for withdrawal of
recognition only. In the present case,
controversy is relating to withdrawal of
affiliation
not
withdrawal
of
recognition. Under the present facts and
circumstances of the case, it is for
withdrawal
of
affiliation
under
the
provisions of Section 37(8) of the State
Universities Act. If the recognition has
been granted by N.C.T.E, it does not
mean that University or State Government
has got no power to inspect the institution
regarding
fulfilment
of
terms
and
conditions and norms of the affiliation by
the State Government in addition to the
N.C.T.E. This cannot be accepted that in
3 All] Shri Radha Govind Mahavidyalya, Aligarh & another V. State of U.P. and others
837
case after granting recognition by the
NCTE, the State Government is bound to
grant
affiliation
to
the
petitioners'
institution. Before granting affiliation by
the State Government, recognition of the
institution by the NCTE is one of the
conditions. The object of Section 14 (6) of
NCTE Act does not mean that after
granting recognition to any institution,
State Government cannot refuse to grant
affiliation if it is found that required
norms laid down by the State Government
for affiliation are not fulfilled by the
institution.
The
Supreme
Court
Judgement relied upon by the learned
counsel for petitioner is not applicable to
the present case. In the aforesaid case, the
issue was to grant affiliation after
recognition while the present writ petition
is relating to withdrawal of affiliation
after granting recognition and affiliation.

18. It is also incorrect to state that
petitioners
were
not
afforded
full
opportunity of hearing by issuance of
show cause notice and reminders before
passing the order impugned. All relevant
provisions have been followed, therefore,
writ petition is liable to be dismissed.

19. After hearing learned counsel for
the parties and after perusal of the
relevant record, it appears that on scrutiny
of applications, N.C.T.E has granted
recognition to the institution. On the said
basis, Chancellor of the University vide
its order dated 30.1.2003 has granted
affiliation for B.Ed course for the session
2004. It appears that somebody was
having enmity with petitioners and made
certain complaints as well as filed a
Public Interest Litigation before the
Court. The said writ petition was disposed
of by this Court with a direction to the
State Government and other relevant
authorities to make proper inspection
regarding complaint and to make an
enquiry in accordance with law and to
pass appropriate orders. It also appears
from the record that Vice Chancellor of
the University directed the Registrar to
proceed with the matter and Three
Member
Committee
was
constituted
inquiring into the allegation made against
petitioner's college. The Three Member
Committee submitted a report and a show
cause notice was issued to petitioners.
Petitioners submitted a reply and the order
was passed for withdrawal of affiliation
and the same was communicated by Vice
Chancellor vide its order dated 25.5.2007.
Section 14 (1) of the National Council for
Teachers Education Act 1993 provides
regarding the recognition on the basis of
certain norms provided under the Act.
From perusal of the aforesaid provision it
appears that where the college is
recognised by N.C.T.E, unless and until
something
is
found
otherwise,
as
affiliation is to be granted by the
examining body. While considering the
claim after recognition given by N.C.T.E,
if the University is of the opinion that
particular institution is not fulfilling the
norms, as provided, then Section 17
provides
that
on
the
basis
of
representation or suo-moto, recognition
can be withdrawn. Under the State
Universities Act, Sub Section 7 of Section
37 provides that Executive Council may
direct affiliated college to inspect or to
take action, if necessary, within a specific
period and to give a notice to that effect
and if direction of the Executive Council
under Sub Section 7 is not fulfilled then
action can be taken under Sub Section 8
of Section 37 of the Act. Section 37 itself
provides regarding the procedure which is
to be adopted by respondent-University
while withdrawing affiliation of the
838 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
college. Sub-Section 7 of Section 37
provides
that
after
inspection,
if
something is found lacking, Executive
Council may direct an affiliated college to
take necessary steps accordingly. SubSection 8 provides that if the college fails
to comply the direction of Executive
Council, after obtaining the report from
the management and with the prior
sanction
of
the
State
Government,
affiliation can be withdrawn. But from the
record
it
appears
that
procedure
prescribed has not been followed by
respondents. The order impugned has
been communicated by the Registrar only
stating the fact that the decision has been
taken by Executive Council to withdraw
the affiliation. Further it has to be noted
that the Division Bench of this Court
while disposing of the writ petition has
directed that the matter be enquired and a
final decision in the matter in pursuance
of the report of the Enquiry Committee
dated 24.4.2006 and 19.5.2006 be taken
expeditiously and to refer the matter for
further action to the appropriate statutory
authority. The contention of petitioners to
this effect appears to be correct that
intention of the Court was regarding
reference to the authority under Section
17 of the National Council for Teachers
Education Act, 1973 but it has not been
done so and decision has been taken by
respondent No.1. From the record, it does
not appear that matter was referred to
Executive Council for taking a decision in
an appropriate manner. It also appears
that from the office of the Governor, a
letter was sent on 7th August, 2006 to the
Registrar of the University to take action
against
petitioners'
institution
under
section 17(8) of the Universities Act after
making an enquiry. On that basis it
appears that Registrar of the University
sent a letter dated 28.10.2006 to the
institution for submitting a reply. Reply
was submitted by petitioners but in the
meantime, on 14.11.2006, Registrar of the
University has requested the Chancellor
to cancel the affiliation of petitioners'
institution and it appears that on the basis
of
that
recommendation,
the
order
impugned
has
been
passed
and
communicated to petitioners. There is
nothing on record to show that decision
on the basis of relevant report submitted
by
the
Enquiry
Committee
was
considered by Executive Council who is
the relevant authority to pass the
appropriate orders. From the perusal of
Clause-8, it also appears that order can be
passed withdrawing or curtailment with
the previous sanction of Chancellor by the
Executive Council in accordance with
provisions of the statute. From the perusal
of the order impugned it does not appear
that proper procedure has been followed.
Further the Apex Court judgement relied
upon
by
petitioners
in
State
of
Maharashtra (Supra) held that in case,
recognition has been granted by N.C.T.E.,
the University was bound to grant
affiliation
whenever
permission
was
granted under Section 14. the University
authorities are bound to grant affiliation.
The Apex Court has further held that once
the recognition has been granted by
N.C.T.E. Under Section 14(6) of the Act,
every University (examining body) is
obliged to grant affiliation to such
institution.

20. In view of aforesaid fact, I am of
opinion that order impugned cannot be
sustained as from the record it appears
that Executive Council has not taken a
decision in a proper manner as provided
and if University authority on the basis of
complaint and inspection has come to the
conclusion that petitioners' institution
3 All] Roshan Lal V. State of U.P. and others
839
does not fulfil the criteria, as required,
after making inspection should have
submitted a report to the National Council
of Teachers Education for passing the
appropriate orders. Once recognition has
been given, affiliation can be withdrawn
in a proper manner provided under the
statute. If it has not been adopted, the
order passed by respondents will not be
just and proper.

21. In view of aforesaid fact, writ
petition is allowed. The order dated
11.3.2007 is hereby quashed and the
matter is remanded back to appropriate
respondent to pass the appropriate orders
in accordance with law after affording full
opportunity to petitioners by a speaking
and reasoned order, if possible, within a
period of three months from the date of
production of certified copy of this order.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No. 1519 of 2009

Roshan Lal

...Appellant
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Appellant:
Sri Kripa Shanker Singh

Counsel for the Respondents:
Sri M.S. Pipersenia
S.C.

Constitution
of
India,
Act-226
Alternative Remedy-After exchange of
Counter and Rejoinder affidavits-after
long time of interval-dismissal on ground
of alternative remedy-held-not proper.

Held: Para 14&15

Bearing in mind the aforesaid principle,
when we consider the facts of the case,
we are of the opinion that the learned
Judge, after having entertained the writ
petition, directed the parties to file
counter and rejoinder affidavits and that
having already been done, at such a
distance of time, ought not to have
dismissed the writ petition on the
ground of alternative remedy.

We hasten to add that after exchange of
pleadings, the Court may not be in a
position to decide the disputed question
of fact, for the reason that for deciding
the same, evidence may be required to
be laid, and in such circumstance the
writ petition cannot be dismissed on the
ground of alternative remedy but on the
ground that the issue of fact cannot be
decided in a writ petition.
Case law discussed:
AIR 2002 SC 2225, AIR 1971 SC 33, (2004) 13
SCC 665, (1998)2 UPLBEC 1154, (2006) 1
UPLBEC 1012, 2006(8) ADJ 646.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. This intra-Court appeal, at the
instance of the writ petitioner-appellant,
under Rule 5 Chapter VIII of the
Allahabad High Court Rules, 1952, arises
out of an order dated 24.07.2009 passed
by a learned Judge in Civil Misc. Writ
Petition No. 39776 of 2001.

2. Shorn of unnecessary details,
facts giving rise to the present appeal are
that
the
writ
petitioner-appellant,
hereinafter referred to as the 'petitioner',
filed the writ petition, inter alia, praying
for quashing the order dated 19.06.2000