# Yashraj College of Professional Studies, Kanpur Nagar v. State of U.P. & Ors

- **Citation:** (2020) 8 ILRA 175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-12
- **Case number:** Writ-C No. 29169 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yashraj-college-of-professional-studies-kanpur-nagar-v-state-of-u-p-ors-46009
- **Pages:** 13

## Headnote

A. Civil Law - U.P. State Universities Act,
1973 - Section 37 - Grant of Affiliation on
temporary basis - Nature and Effect - Power
to grant affiliation vested in the Executive
Council of the University concerned with the
previous
sanction
of
the
Chancellor
-
University once admits a college to the
privileges of affiliation as per Section 37 of
the Act of 1973, after introduction of
amendment vide U.P. Act No. 14 of 2014, it
has to be treated as continuing and would not
be restricted to a limited period, unless such
privileges are withdrawn in accordance with
Section 37(8) and (9) of the Act of 1973.
(Para 30)

Held -

## Text

_Characters 0–39,814 of 42,539. This is a partial read: ask again with offset=39814 for what follows._

8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
175
account
irrelevant
considerations
to
record
a
finding
of
fraud
and
misrepresentation.

8. A Member of Parliament in our
representative form of Government holds
a very sacrosanct position and his
recommendation cannot be a matter of
administrative enquiry unless he himself
complains
of
being
misrepresented/mislead. One who holds a
responsible position after being elected
by people to parliament, is the best judge
of
development
activities
in
his
parliamentary constituency and if civil
servants and government officials are
permitted
to
question
their
recommendations in respect of development
activity
in
their
parliamentary
constituencies, it will erode faith of people
in our parliamentary system of democracy.
We
may,
therefore,
hold
that
no
recommendation qua MPLAD if made by a
member of parliament for his constituency
is subject to enquiry by administrative
authorities unless the Member of Parliament
himself asks for the same, however
monitoring
and
enquiry
regarding
consumption of
fund
released under
MPLAD is always subject to administrative
enquiry in the event of complaint. This is
however, not the case in hand.

9. The findings in our considered
opinion is completely misplaced and illfounded as has been rightly argued by
learned counsel for the petitioner.

10. The writ petition, therefore,
deserves to be allowed.

11. Accordingly, the order dated
10.5.2008 is hereby quashed and the
present petition stands allowed.
----------
(2020)08ILR A175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-C No. 29169 of 2019
connected with
Writ-C No. 31170, 25319, 26335 of 2019

Yashraj College of Professional Studies,
Kanpur Nagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya, Rajan Upadhyay

Counsel for the Respondents:
C.S.C., Sri Rohit Pandey

A. Civil Law - U.P. State Universities Act,
1973 - Section 37 - Grant of Affiliation on
temporary basis - Nature and Effect - Power
to grant affiliation vested in the Executive
Council of the University concerned with the
previous
sanction
of
the
Chancellor
-
University once admits a college to the
privileges of affiliation as per Section 37 of
the Act of 1973, after introduction of
amendment vide U.P. Act No. 14 of 2014, it
has to be treated as continuing and would not
be restricted to a limited period, unless such
privileges are withdrawn in accordance with
Section 37(8) and (9) of the Act of 1973.
(Para 30)

Held -

30. ... Clauses 10(3) and 11(2) of the
Government Order dated 27.9.2002 would
not be a relevant consideration for the
purposes of grant of affiliation to a college
after 18.7.2014 when Section 37 was
amended vide U.P. Act No. 14 of 2014.
Exercise of power by the Executive Council,
for the purposes of imposing conditions for
grant of affiliation would have to be restricted
176 INDIAN LAW REPORTS ALLAHABAD SERIES
to the conditions specified in the Statutes of
the University.

B. Civil Law - U.P. State Universities Act,
1973 - Section 2(14) of Act of 1973-
Interpretation of Statute - Word 'Prescribe' -
defines 'prescribe' to mean as prescribe by
the Statutes - The conditions as are required
to be possessed by colleges for grant of
affiliation has to be such as is prescribed in
the Statutes - When a Statute requires an act
to be done in a particular manner, it has to be
done in that manner alone and all other
modes are prohibited. (Para 26)

Writ Petition disposed of (E-1)

Cases relied on :-

1. Taylor Vs Taylor: (1875) LR (1) CH-D-426
2. Nazir Ahmad Vs King Emperor: AIR 1936
PC 253
3. Bal Krishna Agarwal Vs St. of U.P. & ors.,
(1995) 1 SCC 614

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Heard Sri Ramesh Upadhyay,
learned Senior Counsel assisted by Sri
Rajan Upadhyay for the petitioners, Sri
Rohit Pandey for the University and Sri
Ajit Kumar Singh, learned Additional
Advocate
General
assisted
by
Sri
Sudhakar
Upadhyay
for
the
State
Authorities.

2. These four writ petitions have
been filed by the colleges, which have
been admitted to privileges of affiliation
by
Chhatrapati
Sahu
Ji
Maharaj
University,
Kanpur,
questioning
the
temporary grant of affiliation to them. In
the leading Writ Petition No.29169 of
2019 the petitioner has challenged the
conditions incorporated in the affiliation
order
passed
by
the
respondent
University, dated 30.5.2018, in that
regard. In connected cases the petitioners
have challenged denial of privileges on
account of grant of temporary affiliation.
It is sought to be urged that in the
existing statutory scheme the grant of
affiliation ought to be permanent but the
authorities
are
illegally
granting
temporary affiliation, notwithstanding the
fact that the colleges fulfill all conditions
of affiliation specified in law/statutes of
the University. The petitioners have also
questioned
the
enforcement
of
Government
Order
dated
27.9.2002
insofar as it mandates that 60% students
enrolled in the affiliated college must
pass before temporary affiliation is
extended to the college concerned. It is
contended that the Government Order, to
that extent, is beyond jurisdiction and is
otherwise inconsistent with the statutory
scheme.

3. In order to appreciate the
controversy raised in this bunch of
petitions, it would be necessary to refer
to the relevant Legislation operating in
the field and also notice successive
amendments made, from time to time,
regarding grant of privileges of affiliation
to a college by the University concerned.

4. The State Legislature enacted the
Uttar Pradesh State Universities Act, 1973
(hereinafter referred to as ''Act of 1973')
after obtaining presidential assent on
2.9.1973 (vide President's Act No.10 of
1973). Its object was to amend and
consolidate the laws relating to certain
Universities. The Act of 1973 has been
amended and re-enacted by U.P. Act No.29
of 1974. It (Act of 1973) authorizes the
University to admit a degree college, which
fulfills the prescribed conditions, to the
8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
177
privileges of its affiliation. Affiliated
college is defined in Section 2(2) to mean
an institution affiliated to the University in
accordance with the provisions of the Act
of 1973 and Statutes of that University.
Chapter VII of Act of 1973 regulates grant
of such affiliation. Section 37 of the Act of
1973, falling in Chapter VII at the time of
its inception, read as under:-

"37. Affiliated Colleges. - (1)
This
section
shall
apply
to
the
Universities of Agra, Gorakhpur, Kanpur,
and Meerut and such other Universities
(not being the Universities of Lucknow
and Allahabad) as the State Government
may, by notification in the Gazette,
specify.

(2) The Executive Council may,
with the previous sanction of the
Chancellor, admit any college which
fulfils such conditions of affiliation, as
may be prescribed, to the privileges of
affiliation or enlarge the privileges of any
college already affiliated or subject to the
provisions of sub-section (8), withdraw
or curtail any such privilege:

Provided that previous sanction
of the Chancellor shall not be required
for the grant of an application of an
affiliated college for permission to start
instruction in a subject, being a subject in
which instruction is not already given in
that college, for a bachelor's degree in
respect of which the college is already
affiliated.

(3) It shall be lawful for an
affiliated college to make arrangement
with any other affiliated college situated
in the same local area, or with the
University, for co-operation in the work
of teaching or research.

(4) Except as provided by this
Act, the management of an affiliated
college shall be free to manage and
control the affairs of the college and be
responsible for its maintenance and
upkeep, and its Principal shall be
responsible for the discipline of its
students and for the superintendence and
control over its staff.

(5) Every affiliated college
shall furnish such reports, returns and
other
particulars
as
the
Executive
Council or the Vice-Chancellor may call
for.

(6) The Executive Council shall
cause every affiliated college to be
inspected from time to time at intervals
not exceeding five years by one or more
persons authorised by it in that behalf,
and a report of the inspection shall be
made to the Executive Council.

(7) The Executive Council may
direct an affiliated college so inspected to
take such action as may appear to it to be
necessary within such period as may be
specified.

(8) The privileges of affiliation
of a college which fails to comply with
any 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."

5. Proviso to sub-section (2) of
Section 37, quoted above, was omitted by
U.P. Act No.21 of 1975, and a subsection (9) was inserted by U.P. Act No.5
of 1977, after sub-section (8) in Section
37, which read as under:-

"(9) Notwithstanding anything
contained in sub-sections (2) and (8), if
the Management of an affiliated college
178 INDIAN LAW REPORTS ALLAHABAD SERIES
has failed to fulfil the conditions of
affiliation, the Chancellor may, after
obtaining a report from the Management
and the Vice-Chancellor, withdraw or
curtail the privileges of affiliation."

6. As per the scheme initially
envisaged in the Act of 1973 the power to
grant affiliation vested in the Executive
Council of the University concerned with
the previous sanction of the Chancellor.
The degree colleges were, however,
being admitted to the privileges of
affiliation largely on temporary basis and
only in some cases the affiliation was
allowed on permanent basis. An issue
was raised before this Court questioning
grant of privileges of affiliation to a
college by the University established
under the Act of 1973, on temporary
basis. This Court in Writ Petition
No.5881
(MB)/2002,
Committee
of
Management,
Paramhans
Degree
College, Baharaich Vs. Chancellor and
others, examined the relevant provisions
and held that the term ''affiliation' used in
Section 37 means permanent affiliation
and not temporary affiliation. It was held
that the concern authority may, before
granting affiliation to a degree college
enquire into such matters, as they deem
fit,
but
the
affiliation
should
be
permanent. It was also observed that the
authority, at the time of inspection of
degree college, by virtue of affiliation,
may withdraw the privileges of affiliation
on
account
of
non-fulfillment
of
conditions of affiliation by virtue of Subsections (2), (8) and (9) of Section 37 of
the Act of 1973 but the affiliation itself
had to be nevertheless permanent and not
temporary.

7. The State Legislature, in view of
the judgment delivered by this Court in
Committee of Management, Paramhans
Degree College, Baharaich (supra) found
it appropriate to amend the Act of 1973
vide The Uttar Pradesh State Universities
(Amendment) Act, 2003 (U.P. Act No.1
of 2004). Section 37 was amended vide
Section 5 of the U.P. Act No.1 of 2004,
which is reproduced hereinafter:-

"5. Amendment of Section
37.- In Section 37 of the principal Act,-

(a) In sub-section (2) the
following provisos shall be inserted at the
end, namely:-

"Provided that if in the opinion
of the Chancellor, a college substantially
fulfils the conditions of affiliation, the
Chancellor
may
sanction
grant
of
affiliation to that college or enlarge the
privileges thereof in specific subjects for
one term of a course of study on such
terms and conditions as he may deem fit:

Provided further that unless all
the prescribed conditions of affiliation
are fulfilled by a college, it shall not
admit any student in the first year of the
course of study for which affiliation is
granted under the foregoing proviso after
one year from the date of commencement
of such affiliation."

(b) after sub-section (9) the
following sub-section shall be inserted,
namely:-

"(10) Notwithstanding anything
to the contrary contained in any other
provisions of this Act, a college, which
has already been given affiliation to a
University before the commencement of
the Uttar Pradesh State Universities
(Amendment) Act, 2003 in specific
subjects for a specified period, shall be
entitled to continue the course of study
for which admissions have already taken
place but it shall not admit any student in
the first year of such course of study
8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
179
without obtaining affiliation under subsection (2)."

8. The proviso added vide U.P. Act
No.1 of 2004
permitted
grant of
affiliation for one term of a course of
study to a college (temporary affiliation)
if in the opinion of the Chancellor a
college
substantially
fulfills
the
conditions of affiliation. The proviso also
clarified that unless all the prescribed
conditions of affiliation are fulfilled by a
college it shall not admit any student in
the first year of the course of study after
one year from the date of commencement
of such affiliation. The Legislative intent
in introducing the amendment is explicit
i.e. it permitted grant of temporary
recognition even before all conditions of
affiliation were fulfilled with the rider
that
conditions
of
affiliation
are
substantially fulfilled and the remaining
conditions are fulfilled within a period of
one year or else the college was
precluded from admitting any students in
the first year of the course of study after
expiry of one year.

9. Act of 1973 was again amended
in the year 2007 vide U.P. Act No.12 of
2007. Section 2 of the amending Act is
relevant
for
our
purposes
and
is
reproduced hereinafter:-

"Amendment of Section 37
and 38 of President's Act No.10 of 1973
as amended and re-enacted by the U.P.
Act No.29 of 1974.- In the Uttar Pradesh
State Universities Act, 1973 in Section
37 and 38, for the word "Chancellor"
wherever occurring, the words "State
Government" shall be substituted."

10. The scheme for admitting a
college to the privileges of affiliation
vide U.P. Act No.1 of 2004 continued
even after introduction of U.P. Act No.12
of 2007, with the only change that power
of ''Chancellor' stood assigned to the
''State Government'. The position in law
was therefore clear that privileges of
affiliation could be extended to a college,
by
the
Executive
Council
of
the
University, with the previous approval of
the Chancellor/State Government, if the
college fulfilled conditions of affiliation,
as may be prescribed. Conditions of
affiliation was therefore required to be
specified
in
the
Statutes
of
the
University. The only exigency in which
affiliation could be granted for one term
of course (temporary affiliation) was
when
the
college
did
not
fulfill
conditions of affiliation in its entirety yet
fulfilled
it
substantially.
The
considerations for grant of permanent
affiliation vis-a-vis temporary affiliation,
therefore, stood clearly outlined in the
Act of 1973. This position in law
prevailed after introduction of amending
Act No.1 of 2004 and continued after
U.P. Act No.12 of 2007 with the
modification that previous approval of
Chancellor stood substituted by previous
approval of the State Government.

11. Section 37 of Act of 1973 came
to be amended yet again by State
Legislature in the year 2014 vide U.P.
Act No.14 of 2014. The statement of
object and reasons contained in U.P. Act
No.14
of
2014
clearly
indicates
legislative intent to omit the requirement
of previous sanction by the State
Government for grant of affiliation.
Section 3 of the Amending Act, 2014
whereby Section 37 came to be amended
is reproduced hereinafter:-

"3. Amendment of Section 37.- In
Section 37 of the principal Act,-
180 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) for sub-section (2) the
following
sub-section
shall
be
substituted, namely-

"(2) The Executive Council
may, admit any college which fulfils such
conditions of affiliation as may be
prescribed, to the privileges of affiliation
or enlarge the privileges of any college
already affiliated or subject to the
provisions of sub-section (8), withdraw
or curtail any such privilege."

(b) for sub-section (8) the
following
sub-section
shall
be
substituted, namely-

"(8)
The
privileges
of
affiliation of a college which fails to
comply with any 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 be withdrawn
or curtailed by the Executive Council in
accordance with the provisions of the
Statutes."

(c) after sub-section (10) the
following sub-section shall be inserted,
namely-

"(11) Any institution whose
application is rejected by the University
may prefer an appeal to the State
Government within 30 days from the
receipt of the order of rejection, which
may either allow the appeal or reject it.
The State Government shall also have
power to review the matter of application
of a college in cases where the
complaints received by it with respect to
the irregularities committed by the
college.""

12. The consequence of amendment
made in Section 37 of the Act of 1973 is
essentially three fold. Firstly, the power
to grant affiliation now stands vested in
the Executive Council of the University
concerned and the requirement of prior
approval
of
Chancellor/State
Government
stood
dispensed
with.
Secondly, the privilege of affiliation can
now be extended to a college only when
it fulfills conditions of affiliation, as may
be prescribed. Thirdly, the proviso which
permitted grant of temporary affiliation
even if conditions of affiliation were not
fulfilled entirely but only substantially
stood deleted. No further amendment is
made in the Act after the year 2014. The
Executive Council is thus empowered in
the Act now to grant privileges of
affiliation only if the college fulfills all
conditions of affiliation as are specified
in the Statutes of the University. The
object for which temporary affiliation
was made permissible i.e. to secure
fulfillment of all conditions of affiliation
while
granting
affiliation
even
if
conditions
of
affiliation
are
only
substantially fulfilled and not in its
entirety ceased to exist.

13. The exercise of power by the
Executive Council of University in the
matter relating to grant of affiliation or its
withdrawal
remains
subject
to
the
appellate
jurisdiction
of
the
State
Government. The Executive Council
could, thus, no longer grant privilege of
affiliation temporarily.

14. Admission of college to the
privileges of University, consequent upon
its affiliation, however, continues to
remain subject to the college fulfilling
such conditions as are prescribed by the
statutes and is otherwise subject to the
directions which may be issued by
Executive Council under sub-section (7)
of Section 37. The continuance of
privilege of affiliation are also subject to
the exercise of power under sub-section
8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
181
(8) and (9) of Section 37, and the
decision in that regard remains subject to
the appellate power of the State under
sub-section (11).

15. Before proceeding further it
would be worth noticing that the
conditions of affiliation as per Section 37
of the Act of 1973 is required to be
prescribed. Term ''prescribed' is defined
in the Act of 1973 to mean as is
prescribed by the Statute. The First
Statutes of the Universities established
under the Act of 1973 were framed on
similar lines and contained Chapter XIII
regulating
grant
of
privileges
of
affiliation to a college and also provided
the conditions to be fulfilled by a college
for the grant of affiliation. Clause 13.01
to 13.04 of the Statutes is reproduced
hereinafter:-

"13.01. The list of college
affiliated to the University as on the date
of the publication of these Statutes is
given in Appendix ''E'. [Section 37].

13.01-A. The provisions of the
Statutes relating to the affiliated College
shall not apply to the Har Court Butler
Technological Institutes, Kanpur in so far
as
they
are
inconsistent
with
its
Memorandum of Association Rules,
Regulation and bye-laws.

13.02. Every application for
affiliation of a College shall be made so
as to reach the Registrar not less than 12
months before the commencement of the
session in respect of which the affiliation
is sought. [Sections 37 and 49 (m)].

Provided that the Chancellor
may, in special circumstances reduce the
said period in the interest of higher
education to such extent as he may deem
necessary.

13.03. Every application for
affiliation
of
a
college
shall
be
accompanied by a Bank Draft payable to
the University, for a sum of Rs.2,000
which will be non-refundable. [Sections
37 and 49 (m)].

13.04. Before an application for
affiliation is placed before the Executive
Council, the Vice-Chancellor must be
satisfied with regard to the following
particulars, namely-[Section 37 and 49
(m)]-

(a) that the provisions of
Statutes 13.05, 13.06 and 13.07 have
been complied with;

(b) that the institution satisfies
the demand for higher education in the
locality;

(c)
that
the
Management
concerned has provided or has adequate
financial resources to provide for-

(i)
suitable
and
sufficient
building;

(ii) adequate library, furniture,
stationery, equipment and laboratory
facilities;

(iii) two hectares of land
(excluding covered area);

(iv) facilities for health and
recreation of the students;

(v) payment of salary and other
allowances to the employees of the
college for at least three years."

16. The statutes of the University,
insofar as it relates to grant of privileges
of affiliation is concerned, appears to
have been framed with reference to the
provisions of the Act of 1973, as it was
originally enacted. The Court has not
been apprised of any amendment in the
Statutes of the University, insofar as it
provides the conditions for grant of
affiliation to a new college.
182 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The above noted provisions in
the Statutes of the University are
specific, inasmuch as relevant factors for
establishment and efficient running of
college have been incorporated therein.
The conditions includes availability of (i)
suitable and sufficient building; (ii)
adequate library, furniture, stationery,
equipment and laboratory facilities; (iii)
two hectares of land (excluding covered
area); (iv) facilities for health and
recreation of the students; and (v)
payment of salary and other allowances
to the employees of the college for at
least three years. In case the college can
demonstrate that it fulfills the aforesaid
conditions its application for grant of
affiliation is required to be considered by
the Executive Council. In case the
Executive Council denies the privileges
of affiliation to the college concerned its
decision would be subject to exercise of
appellate power by State Government.
Once the State Government is vested
with the appellate authority in the matter
relating to grant of affiliation to the
college concerned, the question of grant
of
temporary
affiliation
with
the
permission of State Government or the
extension of its term, as was contained in
Section 37 prior to introduction of U.P.
Act No.14 of 2014 had to be necessarily
omitted and has rightly been done so by
the State Government while introducing
U.P. Act No.14 of 2014. The involvement
or association of State Government, at
the first instance, regarding grant of
affiliation or the question of enlarging the
privileges of affiliation for one term of a
course of study now ceases to exist. The
University
nevertheless
would
have
jurisdiction to ensure that affiliated
college function under its supervision
and control in the manner provided for in
Section 37 of the Act of 1973. Every
affiliated college shall have to furnish
such reports, returns and other particulars
as the Executive Council or the ViceChancellor may call for. The Executive
Council will also have jurisdiction to
cause every affiliated college to be
inspected, from time to time, at intervals
not exceeding five years by one or more
persons authorised by it in that behalf
and the report of inspection shall be
made to Executive Council. Executive
Council is empowered by the Act of 1973
to direct an affiliated college so inspected
to take such action as may appear to it to
be necessary within such period as may
be specified. Sub-section 8 thereof
contemplates that where an affiliated
college fails to comply with any direction
of the Executive Council issued under
sub-section (7) or fails to fulfill the
conditions
of
affiliation
then
after
obtaining a report from Management of
the college the affiliation granted can be
withdrawn or curtailed by Executive
Council
in
accordance
with
the
provisions of Statutes.

18. It is in the above context that the
grievance raised by the petitioners require
consideration. Learned counsel for the
petitioner states that the University has not
been able to comprehend the true purpose
specified by the legislature for grant of
temporary recognition i.e. fulfillment of
conditions of affiliation. Submission is that
even after the amendment incorporated
vide U.P. Act No.14 of 2014 in section 37
of the Act of 1973 the University continues
to grant temporary recognition even though
all conditions for affiliation specified in the
Statutes of the University are fulfilled and
no justification exists to deny grant of
permanent affiliation. It is further urged
that new colleges are compelled to run after
the University and its authorities for
8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
183
extension of term of affiliation for no
obvious reason. According to petitioners
this practice results in limited resources of
new
colleges
being
diverted
to
unproductive activities and impedes quality
of education.

19. Per contra, on behalf of the
respondents it is urged that the power to
grant permanent affiliation includes the
power to grant temporary affiliation also.
Contention is that the University is in a
better position to regularly monitor the
affairs of the college, and therefore, the
petitioners are not entitled to any relief.

20. It has already been noticed that
this Court in Committee of Management
Paramhans Degree College, Bahraich
(supra)
has
held
that
affiliation
contemplated in section 37, per se,
denotes permanent affiliation. It was for
such reasons that the Act was amended
vide U.P. Act No.1 of 2004 and a proviso
was added to sub-section (2) of section
37
permitting
grant
of
temporary
affiliation even before all conditions of
affiliation are met by the college.
However, after the proviso to sub-section
(2) of section 37 came to be deleted vide
U.P. Act No.14 of 2014 the enabling
provision
for
issuing
temporary
affiliation ceases to exist. Moreover, the
Act now requires all conditions of
affiliation to be met before the Executive
Council could admit college to the
privilege of affiliation, and therefore, no
justification otherwise exists for grant of
temporary affiliation to a college seeking
affiliation.

21. It appears that on account of
amendments introduced in Section 37,
from
time
to
time,
a
state
of
uncertainty/confusion
has
prevailed
regarding grant of privileges of affiliation
by the University. The import of
amending Act No.14 of 2014 has not
been
correctly
understood.
The
University appears to be continuing
under the statutory scheme which existed
prior to introduction of amendming Act
No.14 of 2014.

22. Additional conditions regarding
grant of affiliation are being introduced
from time to time, vide different
Government Orders, on account of which
a state of uncertainty has been created in
the affiliated colleges and they are forced
to run after the authorities of the
Universities upon expiry of each term.
The grant of affiliation temporarily or for
a limited term, therefore, is not found to
be in consonance with the legislative
mandate and is otherwise opposed to the
cause of education, inasmuch as the
institutions are all the time concerned
about grant of extension of term of
affiliation, which is often resulting in
uncalled for litigation also before this
Court.
Such
unwarranted
stage
of
uncertainty has already been remedied by
the legislature vide amending Act No.14
of 2014 and it is high time that the
universities established under the Act of
1973 take note of it and obviate the
menace.

23. It is at this juncture that the
Court would like to refer to the
Government Order issued by the State
Government on 27th September, 2002.
This Government Order lays down the
norms to be made applicable for opening
of
new
colleges
for
graduate/postgraduate
level
or
for
introducing new subject in the college
concerned. Clause 1 of the Government
Order lays down general procedure to be
184 INDIAN LAW REPORTS ALLAHABAD SERIES
adopted for opening of colleges by
getting the society registered under the
provisions of the Societies Registration
Act, 1860. Various conditions with regard
to existence of land and other teaching
facilities etc. have also been specified.
Clause 2 deals with justification for
opening of a new college, inasmuch as it
would have to be ascertained as to how
many colleges are already in existence
within a radius of 15 Kms. from such
college. Clause 3 lays down the amount
of security to be deposited by the college
concerned. The existence of library and
requisite
furniture
have
also
been
specified. Both in respect of colleges
upto graduate and postgraduate levels,
Clause 9 lays down the criteria for
sanctioning additional seats in the college
concerned. Clause 10 lays down the
norms for extension of affiliation to a
college concerned. Clause 10 and 11 of
this Government Order separately deals
with norms for grant of temporary
affiliation
and
also
in
respect
of
permanent affiliation. Clause 10 and 11
of
the
Government
Order
dated
27.9.2002, which are relevant for the
controversy at hand are reproduced
herein under:-

"1⁄4101⁄2 lEc)rk foLrkj.k gsrq ekud

1⁄411⁄2 egkfo|ky; dh LFkkiuk ls
lEcfU/kr voLFkkiuk lEcU/kh ekud rFkk iwoZ esa
fuxZr lEc)rk iznku djus lEcU/kh vkns'k esa
mfYyf[kr ckrsa iw.kZ dj yh x;h gSA

1⁄421⁄2
f'k{kdksa
dh
fu;qfDr
;w0th0lh0@'kklu }kjk fu/kkZfjr vgZrkvksa ds
vuq:i dh xbZ gksA

1⁄431⁄2 foxr o"kksZ 1⁄4vf/kdre rhu o"kZ1⁄2
dk ijh{kkQy 60 izfr'kr ls de u jgk gksA

1⁄441⁄2 laLFkk dk iathdj.k v|kof/kd
fof/k ekU; gksA

1⁄451⁄2 egkfo|ky; }kjk 'kklu ,oa
fo'ofo|ky; ds funsZ'kksa dk ikyu fd;k tk
jgk gksA

1⁄461⁄2 fo'ofo|ky; dh ijh{kkvksa dh
vof/k esa lkewfgd udy dk vkjksi u gksA

1⁄471⁄2 lEc)rk foLrkj.k dk izLrko
fo'ofo|ky; dh laLrqfr lfgr lEc)rk lekIr
gksus dh vof/k ls rhu ekg iwoZ 'kklu rFkk
egkefge dqyf/kifr dk;kZy; dks izkIr gksuk
pkfg,A

1⁄4111⁄2 LFkk;h lEc)rk gsrq ekud

1⁄411⁄2 egkfo|ky; dh LFkkiuk ls
lEcfU/kr leLr voLFkkiuk ,oa 'kSf{kd ekudksa
dh iwfrZ dj ysus dk leqfpr izek.k gksA

1⁄421⁄2 foxr rhu o"kksZ dk ijh{kkQy
60 izfr'kr ls U;wu u jgk gksA

1⁄431⁄2 fu/kkZfjr ;ksX;rk /kkjd izkpk;Z
rFkk leLr f'k{kdksa dh fu;qfDr fu/kkZfjr
izfdz;k ds vuqlkj dj nh xbZ gks rFkk ;Fkk
vko';d fu;qfDr ij dqyifr dk vuqeksnu
izkIr dj fy;k x;k gksA

1⁄441⁄2 v/;kidksa dks fu;fer :i ls
osru Hkqxrku fd;k tk jgk gksA

1⁄451⁄2 LFkk;h lEc)rk dk izLrko
fo'ofo|ky; ds ek/;e ls fujh{k.k e.My dh
vk[;k ,oa laLrqfr lfgr vLFkk;h lEc)rk
lekIr gksus dh vof/k ds rhu ekg iwoZ
'kklu@dqykf/kifr dks izkIr gks tk;sA

1⁄461⁄2 laLFkk dk iathdj.k v|kof/kd
fof/k ekU; gksA

1⁄471⁄2 izcU/k ra= esa fdlh izdkj dk
fookn u gks rFkk izca/kra= ds fo'ofo|ky; ls
vuqeksfnr gksus dk izek.k gksA

1⁄481⁄2 lkewfgd udy dk dksbZ vkjksi
u gksA"

24. Clause 10(3) contains a specific
requirement that the result of the
affiliated college has to be above 60%
during the last three years for extending
the term of affiliation. Similarly, clause
11(2) of the Govt. Order contemplates
that the result for the last three years has
8 All. Yashraj College of Professional Studies, Kanpur Nagar Vs. State of U.P. & Ors.
185
to be above 60% for the grant of
permanent affiliation.

25. The aforesaid Government
Order appears to have been issued when
the power to grant affiliation was to be
exercised with the approval of the State
Government and included the power to
grant affiliation for a limited term. It was
in that context that conditions were
imposed
for
grant
of
temporary
recognition or for grant of permanent
recognition to a college already admitted
to the privileges of affiliation on
temporary basis. This Government Order
has completely lost its relevance in the
existing
statutory
scheme
where
temporary recognition itself is not
envisaged. Prior approval of the State
Government for grant of affiliation is
also dispensed with. In the Act of 1973 or
the Statutes of the University concerned
there exists no condition of the like
nature as are contained in clause 10(2)
and 11(3) of the Government Order dated
27.9.2002, for grant of affiliation. This
Government Order, therefore, has lost its
efficacy and cannot be relied upon for
denying grant of affiliation.

26. At this juncture it would be
worth referring to Section 2(14) of Act of
1973, which defines ''prescribe' to mean
as prescribe by the Statutes. The
conditions as are required to be possessed
by colleges for grant of affiliation has to
be such as is prescribed in the Statutes.
Law is otherwise settled that when a
Statute requires an act to be done in a
particular manner, it has to be done in
that manner alone and all other modes
are prohibited (see:- Taylor vs. Taylor:
(1875) LR (1) CH-D-426, and Nazir
Ahmad vs. King Emperor: AIR 1936 PC
253).

27. The exercise of power by the
Executive Council for grant of recognition
by virtue of Section 37(2) and the
conditions to be imposed in that regard has
therefore to be with reference to the
Statutes alone and a condition, which has
not been specified in the Statutes,
ordinarily cannot be introduced by the
Executive Council. This Court finds
support in its view from the observation of
the Apex Court in Bal Krishna Agarwal Vs.
State of U.P. and others, (1995) 1 SCC 614.
The Supreme Court while examining a
claim of personal promotion interpreted the
term ''prescribed' in para 13 of the aforesaid
judgment,
which
is
reproduced
hereinafter:-

"13. Shri Sanyal, the learned
Senior Counsel appearing for Respondent
5, has, however, urged that since the
validity of appointment of Respondents 4
and 5 with effect from 9-11- 1984 has not
been assailed by the appellant, he should
not be permitted to raise this question at
this stage. It is no doubt true that the
validity of promotion of Respondents 4
and 5 has not been assailed by the
appellant but all that he is pointing out is
that in view of the provisions contained
in Section 31-A of the Act the promotion
of Respondents 4 and 5 under the
Personal Promotion Scheme could be
made only after the length of service and
qualifications were prescribed by the
Statutes and provisions in this regard
were made in the Statutes only on 21-21985. In other words, what the appellant
is saying is that the promotion of
Respondents 4 and 5 to the grade of
Professor can be regarded to have been
made legally only with effect from 21- 21985. This does not involve a challenge
to the validity of their promotion but only
raises the question about the date from
186 INDIAN LAW REPORTS ALLAHABAD SERIES
which it can be given effect to in law. We
are of the opinion that in view of the
provisions contained in Section 3 1 -A
and Section 2(14) of the Act there is no
escape
from
the
conclusion
that
Respondents 4 and 5 could not be given
promotion under the Personal Promotion
Scheme till the necessary provisions
prescribing the length of service and the
qualifications for such promotion were
made in the Statutes and since this was
done by Notification dated 21-2-1985,
promotion under the Personal Promotion
Scheme could not be made prior to 21-21985. The Executive Council in its
Resolution No. 198 dated 8-11-1984 had
accepted the recommendations of the
Selection Committee for promotion of
Respondents 4 and 5 on the basis of
Government Orders dated 12-12-1983
and 25-2-1984. At that time Section 31 of
the Act provided for appointment of
teachers by direct recruitment and did not
envisage
promotion
from
a
lower
teaching post to a higher teaching post.
The
orders
of
the
Government
aforementioned could not be given effect
till necessary amendment was made in
the Act making provision for personal
promotion. This was done by introducing
Section 3 1 -A by U.P. Act No. 9 of 1985
with effect from 10- 10- 1984. But
Section 3 1 -A could be given effect only
after the necessary provision was made in
the Statutes prescribing the length of
service
and
the
qualifications
for
personal promotion. This was done by
the notification dated 21-2- 1985. The
promotion of Respondents 4 and 5 to the
grade of Professor under the Personal
Promotion Scheme could, therefore, not
be made prior to 21-2-1985 and it has to
be treated to have been made with effect
from 21-2-1985. The inter se seniority of
the appellant and Respondents 4 and 5
has to be determined on that basis."

28. Respondents, for justifying the
issuance of Government Order have also
referred to Section 66-A of the Act of
1973, which reads as under:-

"66A. The State Government
may issue such directions from time to
time to a University on policy matters,
not inconsistent with the provisions of
this Act as it may deem necessary such
direction shall be complied with by the
University."

29. The abovenoted provision is an
enabling provision which permits the
State
Government
to
issue
such
directions, from time to time, to a
University on policy matter, which are
not inconsistent with the provisions of
the Act and is otherwise deemed
necessary. Such directions are required to
be complied with by the University. The
power to issue direction by the State
Government has to be on matters of
policy
which
are
otherwise
not
inconsistent with the provisions of the
Act. In the matter of grant of affiliation to
a college concerned the Act of 1973
specifically provides for the course to be
followed in Section 37. Affiliation has to
be granted by the Executive Council of
the University to a college which fulfills
such conditions of affiliation, as may be
prescribed in the Statutes. In such
circumstances, the Executive Council is
required to exercise its jurisdiction in the
matter of grant of affiliation as per the
conditions prescribed in the Statutes and
not otherwise. Even otherwise, once it is
held that the power to grant affiliation is
not for a limited term and would continue
so long as the affiliation is not withdrawn
8 All. Sursati Vs. State of U.P. & Ors.
187
by exercising power in the manner as
contemplated under Section 37 of Act of
1973, clauses 10(3) and 11(2) of
Government
Order
dated
27.9.2002
would have no application. These clauses
otherwise have no role to play in the
current statutory scheme, as already
discussed above.

30. From the deliberations and
discussions aforesaid, this Court is of the
considered view that the University
established under the Act of 1973 once
admits a college to the privileges of
affiliation as per Section 37 of the Act of
1973, after introduction of amendment
vide U.P.