# BISHESHW AR DAY AL SINHA v. UNIVERSITY OF BlHAR & ORS

- **Citation:** [1964] 7 S.C.R. 879
- **Court:** Supreme Court of India
- **Decided:** 1963-01-13
- **Case number:** Civil Appeal No. 279' of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bisheshw-ar-day-al-sinha-v-university-of-blhar-ors-3136
- **Pages:** 13

## Headnote

r
78.C.R.
SUPREME COURT REPORTS
879
BISHESHW AR DAY AL SINHA
v.
UNIVERSITY OF BlHAR & ORS.
JP. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M. HiDAYATULLAH, K. C. DAS GUPTA AND N. RAJAGOPALA AYYAN·
GAR, JJ.)
Bihar Staie Universities (Patna, University of Bihar, Bhaga!pur and Ranchi Act). 1960 (Bihar 14 of 1960), ss. 2(d), 4(10)
~O(d) and (e), 60(a)(ii)-Amendment Act, 1961
(Bihar II of
1962), s. 35,
Statutes 2(4), 3(1)-0rder by Vice-Chancellor reconstituting Governing Bodu of alftliated college-Validity.
The Vice-Chancellor of the Bihar University by an order
dated
January 13,
1963 directed the reconstitution of the
Governing Body of the Rajendra College, Chapra, which was
a public institution founded by public charities and was affiliat<>d to the University under s. 2(d) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi)
Act, 1960, removed the appellant, who was the Secretary of
the College and nominated certain persons as members of the
Governing Body. The Act of 1960 was amended by Act II of
1962 and s. 35 of the Amending Act provided for the dissolution of the Senate Syndicate and Acadt>mic Council functioning
prior to it and for the constitution of new bodies in their place
and authorised the Vice-Chancellor pending such reconstitution to exercise their powers for a period not exceeding, nine
months. In exercise of the power conferred by this section the
Vice-Chancellor framed new statutes under which he purported to pass the impugned arders. Clause 2(4) of the new statutes
canferred an the Vice-Chancellor the power to amend or revise
the canstitutian of the affiliated calleges and cl. 3(1) empowered
the syndicate either on its own !notion or at the instance of
the Vice-Chancellor ta dissolve; and order constitutian of
Governing Badies. It further empowered the cancellation af
grants-in-aid ta the colleges concerned. The proviso to. cl. 3(1)
required that reasonable
opportunity must be given to the
Governing Body before any action was taken under the clause.
The appellant moved the Patna High Court for a writ quashing
JJie impugned order and the statutes on which it was made.
His case was that the relevant statutes were ultra vires and as
such the order was unsustainable. The High Court held that
the impugned order could not be justified under cl. 3(1) as the
proviso had not bt>en complied with but that the order was
valid under cl. 2(4). It further held that the impugned statutes
could be justified by s. 60(a)(ii) which was introduced by Act
II of 1962, empowering the Vice-Chancellor to make adaptations
or modification in the pre-existing statutes.
Held: The Bihar State University Act of 1960 made a clear
distinction between two categories of collegiate
institutions,
(1) those owned and maintained by the university and (2) others
o.dmitted or affiliated to the University, as was apparent from
ss. 4(10) and 30(d) and (e) of the Act. While the University
had undoubtedly the power to disaffiliate an institution belonging to the second category on its failure to conform to reasonable and legitimate conditions under the Act subject to which
the affiliation was granted, it had no power to dissolve and
1961
.4.prif 81
196,
BW.W.,..r Dayal
Sinlia
v.
Univeraitg o/
Bi/oar and Othera
880
SUPREME COURT REPORTS
[1964J
constitute the Governing Body of such an institution itself.
Clause 2(4) of the Statutes was inconsistent with s. 30(d) of
the Act and must be held to be invalid. The impugned order·
passed under it therefore must be invalid and inoperative.
Clause 3(1) of the statute in so far as it proceeded on the·
basis that the syndicate could itself dissolve the Governing:
Body and order its reconstitution suffered from the same in-·
firmity as cl. 2(4). That clause in so far at it gave the syndicate·
the power to dissolve and reconstitute the Governing Body
and cancel grants-in-aid to an affiliated college for non-compliance with its direction issued in that behalf must, conse-·
quently, be held to be i

## Text

r
78.C.R.
SUPREME COURT REPORTS
879
BISHESHW AR DAY AL SINHA
v.
UNIVERSITY OF BlHAR & ORS.
JP. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M. HiDAYATULLAH, K. C. DAS GUPTA AND N. RAJAGOPALA AYYAN·
GAR, JJ.)
Bihar Staie Universities (Patna, University of Bihar, Bhaga!pur and Ranchi Act). 1960 (Bihar 14 of 1960), ss. 2(d), 4(10)
~O(d) and (e), 60(a)(ii)-Amendment Act, 1961
(Bihar II of
1962), s. 35,
Statutes 2(4), 3(1)-0rder by Vice-Chancellor reconstituting Governing Bodu of alftliated college-Validity.
The Vice-Chancellor of the Bihar University by an order
dated
January 13,
1963 directed the reconstitution of the
Governing Body of the Rajendra College, Chapra, which was
a public institution founded by public charities and was affiliat<>d to the University under s. 2(d) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi)
Act, 1960, removed the appellant, who was the Secretary of
the College and nominated certain persons as members of the
Governing Body. The Act of 1960 was amended by Act II of
1962 and s. 35 of the Amending Act provided for the dissolution of the Senate Syndicate and Acadt>mic Council functioning
prior to it and for the constitution of new bodies in their place
and authorised the Vice-Chancellor pending such reconstitution to exercise their powers for a period not exceeding, nine
months. In exercise of the power conferred by this section the
Vice-Chancellor framed new statutes under which he purported to pass the impugned arders. Clause 2(4) of the new statutes
canferred an the Vice-Chancellor the power to amend or revise
the canstitutian of the affiliated calleges and cl. 3(1) empowered
the syndicate either on its own !notion or at the instance of
the Vice-Chancellor ta dissolve; and order constitutian of
Governing Badies. It further empowered the cancellation af
grants-in-aid ta the colleges concerned. The proviso to. cl. 3(1)
required that reasonable
opportunity must be given to the
Governing Body before any action was taken under the clause.
The appellant moved the Patna High Court for a writ quashing
JJie impugned order and the statutes on which it was made.
His case was that the relevant statutes were ultra vires and as
such the order was unsustainable. The High Court held that
the impugned order could not be justified under cl. 3(1) as the
proviso had not bt>en complied with but that the order was
valid under cl. 2(4). It further held that the impugned statutes
could be justified by s. 60(a)(ii) which was introduced by Act
II of 1962, empowering the Vice-Chancellor to make adaptations
or modification in the pre-existing statutes.
Held: The Bihar State University Act of 1960 made a clear
distinction between two categories of collegiate
institutions,
(1) those owned and maintained by the university and (2) others
o.dmitted or affiliated to the University, as was apparent from
ss. 4(10) and 30(d) and (e) of the Act. While the University
had undoubtedly the power to disaffiliate an institution belonging to the second category on its failure to conform to reasonable and legitimate conditions under the Act subject to which
the affiliation was granted, it had no power to dissolve and
1961
.4.prif 81
196,
BW.W.,..r Dayal
Sinlia
v.
Univeraitg o/
Bi/oar and Othera
880
SUPREME COURT REPORTS
[1964J
constitute the Governing Body of such an institution itself.
Clause 2(4) of the Statutes was inconsistent with s. 30(d) of
the Act and must be held to be invalid. The impugned order·
passed under it therefore must be invalid and inoperative.
Clause 3(1) of the statute in so far as it proceeded on the·
basis that the syndicate could itself dissolve the Governing:
Body and order its reconstitution suffered from the same in-·
firmity as cl. 2(4). That clause in so far at it gave the syndicate·
the power to dissolve and reconstitute the Governing Body
and cancel grants-in-aid to an affiliated college for non-compliance with its direction issued in that behalf must, conse-·
quently, be held to be invalid.
The power conferred by s. 60(ii) of the Act must be rea:d'
in the Jig.ht of the provisions of s. 30(d) in regard to affiliated
colleges and since statute 2(4) was itself invalid, the section
could not justify the impugned order.
In resolving disputes between affiliated colleges and theuniversity, attempt should be made to respect the autonomy
of the colleges and reconcile the same with the supervisory
powers of the University intended to be exercised in the interest of efficiency and progress.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 279'
of 1964. Appeal by special leave from the judgment and
order dated December 23, 1963 of the Patna High Court in
M. J. C. No. 86 of 1963.
M. C. Setalvad, R. K. Garg, D. P. Singh, S. C. Agarwal
and M. K. Ramamurthy, for the appellant.
C. K. Daphtary, Attorney-General, and S. P. Varma, for
the respondent Nos. 1, 2 and 4.
S. C. Agarwal, R. K. Garg, D. P. Singh and M. K. Ramamurthy, for respondent No. 5.
Sarjoo Prasad, S. L. Chhibber and B. P. Jlia, for respondent No. 8.
D. Goburdhun, for respondent No. 16.
S. P. Varma, for intervener No. I.
Dipak Datta Choudhri and A. K. Nag, for intervener
No. 2.
April 24, 1964. The judgment of the Court was delivered
by
'
G•}•nd""JQ<lkar, C.J.
GAJENDRAGADKAR, C. J.- The writ petition from which
this appeal by special leave arises had been filed by the appellant Bisheshwar Dayal Sinha by which he challenged the
validity of the order issued by the Vice-Chancellor of the
Bihar University directing the recbnstitution of the Governing Body of the Rajendra College, Chapra, and of the rele-
,
vam new statutes framed by him under which the said order is
purported to have been issued. His case was that the relevant
7 S.C.R.
SUPREME COURT REPORTS
881
· new statutes are ultra vires the authority of the Vice-Chan19G4
cellor and the impugned order passed by him in pursuance Bislieshwar Dayal
of. the said relevant statutes is, therefore, illegal, inoperative
Sinha
-
Vand void. Along with the petition filed by the appellant, four
University of
other petitions had been filed by other persons seeking to Biluir a1ui Otliera
obtain similar relief. The Patna High Court ha.s, in subs~nce,Gaj•ndragadkar,C.J,
rejected the appellant's case and has accordmgly d1sm1ssed
the appellant's writ petition as well as the other petitions
filed by other persons. On behalf of the appellant, Mr. Setalvad has contended that the view taken by the Patna High
Court about the validity of the relevant statutes is not sustainable and that the said statutes are ultra vires with the
inevitable consequence that the impugned order directing
the reconstitution of the Governing Body of the Rajendra
College must also be held to be invalid.
The Rajendra College is an educational institution which
has been admitted by the Bihar University as a College, as
defined in section 2(d) of the Bihar State Universities (Patna,
University of Bihar, Bhagalpur and Ranchi) Aet (Bihar Act
XIV of 1960) (hereinafter called 'the Act') read with Article
I of Chapter XII of the Statutes framed under the Act. The
said college is a public institution founded by public charities
and is conducted under the management of a Governing
Body. The first Governing Body of the College was formed
by the citizens of Chapra who had assembled for that purpose in a meeting on the 31st July 1938. The Governing
Body thus constituted consisted of 18 members; it continued
to function until the 24th July, 1940, with additions in the
personnel made from time to time by co-option. Later. in
1941, the Governing Body adopted a constitution framed by
the Principal of the College at its request and that constitution governed the administration of the colle~e. In due
course, some further amendments were made in !950. After
the passing of the University of Bihar Act, 1951 (Bihar Act
XXVII of 1951) and. the framing of Chapter XIII of the
Statutes. under the said. Act: the University suggested to the
Gover!'mg Body to bnng its constitution in line witil the
prov!~1on~ of Chapter XI~! of said Statutes.
Accordingly,
m0.d1ticatlons w~re made 111 the constitution, and the constitution .thus modified and amended from time to time was in
operation at the relevant time.
.
The appellant had been elected Secretary to the Governing Body on the 3rd of June, 1961, and under the relevant
rvles of the constitution, his term of office wa$ to be three
academic sesst?ns, and as such, it was to last until 31st May,
1964. Meanwhile, by the impugned order passed by the ViceChancellor on th~ 13t~ !anuary, 1963, the appellant has been
removed _from. his P?Stlt?n as Secretary and another person
has been appomted m his place. That is the reason why the
882
SUPREME COURT REPORTS
[196i]
196.J
appellant moved the Patna High Court for appropriate writ
BishMha·ar Dayal or order quashing the impugned order and the relevant s~aSinlia
tutes on which it purports to be based. To his writ petition,
Unive~;ity of
the appellant impleaded 18 persons amongst them being
!lihar and Othu" respondent No. I, the University of Bihar, respondent No. 2
Ga'e1ulra--:11car C.J. Mr. Srivastava, Vice-Chancellor of the University. of !3ihar,
~
ya
'
and respondent No. 3 the Chancellor of the Umvers1ty of
Bihar.
Before dealing with the contentions raised by the a ppellant in the present appeal, it is necessary to refer briefly to
the relevant statutory provisions governing the affairs of the
University of Bihar and its constituent colleges. The first Act
to which reference must be made is the Universitv of Bihar
Act (Bihar Act _XXVII of 1951). This Act was· passed in
August, 1951, and the provisions enacted by it were intended
to furnish a comprehensive code to establish and incorporate
an affiliating-cum-teaching University in the State of Bihar at
Patna. In 1960, Bihar Act XIV of 1960, which we are describing as the Act in the course of this judgment, came to be
passed. This Act was intended to help the establishment aud
incorporation of affiliating-cum-teaching Universities at 7atna,
Muzaffarpur, Bhagalpur and Ranchi in the State of Bihar.
This Act was later amended by Acts II of 1962. XIII of
1962, and XVII of 1962. The first of these Amending Acts
came into force on the Isl of March, 1962; the second on
21st April, 1962 and the third on the 16th October, 1962.
At this stage, we m,ay conveniently mention the relevant
provisions of the Act. Section 2(d) defines a "college~ as
meaning an institution admitted to or maintained by the University, in accordance with the provisions of the Act, in
which instruction is given, subject to the provisions contained
in cl. (15) of s. 4, lo the students of the college up to and including a standard below the post-graduate standard under
conditions prescribed in the Statutes. This definition shows
that the Act applies to two categories of colleges, the first
category consisting of collegiate institutions admitted to the
University. and the other maintained by the University. Section 4 prescribes the purposes and powers of the University.
Section 4(] 0) provides that one of the purposes and powers of
the University is to institute, maintain and manage colleges
and hostels and to recognise colleges and hostels not maintained by the University. This provision brings out the fact
that two kinds of collegiate institutions would be functioning
under the University-those that are instituted by the University, and those that are admitted.
In regard to the first
category of colleges, the power and purposes of the University would be to institute, maintain and manage the colleges
and hostels, and in regard to the other, the power and purpose would be to recognise them, subject, of course, to the
t
7 S.C.R.
SUPREME COURT REPORTS
883
conditions imposed in that behalf. For the purpose of dealing
1964
with the main controversy between the parties in the present Bi•h .. hwur Dayal
appeal. it is necessary to bear in mind this distincrion between
Sinha
two categories of collegiate instituticms functioning
under
Unive;;;111 of
the Bihar University.
Biharand Other•
Section 7 prescribes the Officers of the University whb G•jemlmgadkar,C.J.
are: the Chancellor; the Vice-Chancellor; the Treasurer; the
Registrar; the Deans of Faculties; the Finance Officer and
such other persons as may be declared by the Statutes to be
the officers of the University. Section 16 defines the authorities of the University which are six; they are: the Senate; the
Syndicate; the Academic Council; the Faculties; the Examination Board; and such other authorities as may be declared
by the Statutes to be the authorities of the University. Section
20 deals with powers and duties of the Senate. Under s. 20(1).
the Senate shall be the supreme governing body of the University and shall have the entire management of. and superintendence over. the affairs,
concerns and property of the
University; shall exercise all the powers of the University, not
otherwise provided for, to give effect to the provisions of the
Act. Section 20(2) prescribes in particular some of the powers
and duties of the Senate; amongst them is included the powe1
of making the Statutes. and amending or repealing the same.
Section 21 deals with the Syndicate and its composition; and
s. 22 prescribes the powers and duties of the Syndicate.
Section 30 deals with statutes. Section 30(d) provides
!hat subject to the provisions of the Act, the Statutes may
provide for the admission of educational institutions as colleges and the withdrawal of privileges from colleges so admitted; and s. 30(e) provides that the statutes may provide for
the institution of colleges and hostels and their maintenance
and management. It would thus be seen that proceeding on
the basis of the broad distinction between collegial~ institutions instituted by the University and those admitted 'or recognise:! by,it, s. 30 makes two separate provisions in that .
behalf. In regard to the institutions admitted or recognised,
the St.atutes .can provide for the admission or recognition of
such ms~1tut10ns and the withdrawal of such recognition,
whereas in regard to the institutions instituted by the University,
the
Statutes may provide for the institution of such
colleges and their maintenance and management.
Section 49 deals with the prbblem of relations of affiliated c'?lleges with the University, and it provides that the said
rek!t1ons shall b.e governed by the. Statutes to be made in
tha! behalf. and 11 prescnbes in particular some of the matters
which may be covered by the said Statutes .
. Section 60 prov.ides for the continuance of Statutes,
Ordinances, Regulat10ns
and Rules which were in force
884
SUPREME COURT REPORTS
[1964]
under the Bihar Acts XXV and XXVII of 1961. Section 60
Biihe•hwar Duyal (ii) empowers the Vice-Chancellor to make adaptations or
Sinha
modifications in the said Statutes, Ordinances, Regulations
Univc;;;iy of
and Rules with the approval of the Chancdlor in so far as
Bihor and Otltm
they are not inconsistent with the provisions of the Act, and
G • d
adka 0 J when such adaptations or modifications are made, they would
aJ"' 'tlfl
'' · ·be deemed to have been made under the appropriate provisions of the Act. In other words, while continuing the operation of the pre-existing Statutes, power has been conferred
on the Vice-Chancellor to make adaptations or modifications
in the said Statutes, subject to the conditions which we have
just indicated. This provision came into force on the 1st
March, 1962 by virtue of the amending provision prescribed
oy Act II of 1962.
There is one more provision to which reference must be
made before we part with this topic. Section 35 of Act II of
1962 provides for dissolution of the Senate, Syndicate and
Academic Council functioning prior to the commena::ment
of the _said Act and constitution of new Senate, Syndicate
and Academic Council in their place. It provides that notwithstanding anything contained in the Bihar Act XIV of
1960, the respective bodies established under s. 3 of the said
Act in regard to the Universities covered by the Act shall
stand dissolved on the commencement of this Act and thereafter, as soon as may be, they shall be reconstituted, and
pending their reconstitution, the Vice-Chancellor shall exercise their powers and perform their duties under the said Act
for a period not exceeding nine months from such commencement. The result of this provision is to authorise the ViceChancellor to exercise the powers and functions of the respective bodies which. stood dissolved, for nine months from
the date of the operation of this Amending Act, or until the
said bodies were duly reconstituted. It is by virtue of the
power conferred on him by this section that the Vice-Chancellor has purported to frame new Statutes some of which
are challenged in the present proceedings and has issued the
impugned order in pnrsuance of the said new Statutes. That,
in brief, is the position with regard to the statutory provisions
in the light of which the dispute between the parties has to
be settled in the present appeal.
The two statutes whi£h have been challenged before us
may now be set out. This body of new Statutes came to be promulgated on the 18th November, 1962. After they were thus
promulgated, the Registrar of the University of Bihar wrote
to the Secretaries and Principals of all Admitted Colleges,
except Constituent and Government College~. enquiring from
them what action had to be taken by the Vice-Chancellor or
the Syndicate in regard to the constitution of the. Governing
Body of the respective Colleges and the appointment of
'
-
1 S.C.R.
. SUPREME COURT REPORTS
885
Office-bearers. The new Statutes consist of 24 clauses, but for
1964
the purpose of the present appeal, we are ·concerned only with Bi<hu;wa,;. Dayal
two of them. Clause 2, sub-clause (4) provides: "in the case
·~.
of the constitution of the Governing Bodies of admitted col-
.un;..,..,;i& of
leges (except colleges owned and maintained by Government) B•har ~ ,_
framed prior to the making of these Statutes, the Vice-Chan-a.;mc1raga<1hr,O.J.
cellor shall have the power to amend or revise the constitution wherever necessary in order to bring it, as far as possible, in conformity with the provisions of these Statutes"
Gause 3(1) reads thus: -
"The Syndicate may on its motion or at the instance
of the Vice-Chancellor dissolve and order constitution of Governing Body in admitted colleges or
cancel its grant-in-aid to the college concerned
for any one or more of the following reasons:
(a) that the college has failed to comply with the
directions issued by the Syndicate under the
laws of the University within the specified
time;
<b) that the college has failed to observe the provisions of the laws of the University;
(c) improper utilisation of the various funds of the
institution;
(d) that the affairs of the college have been. grossly
mismanaged.
Provided, however, that before ordering dissolution of
the Governing Body or before passing such order
against the Governing Body the Syndicate shall
give a reasonable opportunity to the Governing
Body to show cause against such action."
It is clear that cl. 2(4) of the new Statutes expressly confers
on the Vice-Chancellor the power to amend or revise the
constitution of the affiliated colleges; and cl. 3(1) empowers
the Syndicate to dissolve and order constitution of their
Governing Bodies either on it~ own motion or at the instance
of the Vice-Chancellor. Gause 3(1) also empowers the Syndicate to cancel its grant-in-aid to the college concerned for
one or more of the four reasons specified by it. The proviso
to cl. 30) requires that before the dissolution of the Governing ·Body is ordered, or any similar order is passed under cl.
3(1), reasonable opportunity has to be given to the Governing Body to show cause why such action should not be
taken.
In substance, the High Court has come to the conclusion
that these two Statutes and the impugned order are valid.
According to the High Court, the impugned order cannot be
justified under Statute 3(1) because an opportunity had not
886
SUPREME COURT REPORTS
(1964]
1961
been given to the Governing Body of the Rajendra College
Bia/iuhtMr Dayal as required by the proviso. It has, how.::vcr, held that the
Binlta ·
impugned order is valid having regard to the powers conferu.;.,.;;ity of
red on the Vice-Chan~llor under Statute 2(4). It also appears
Bihar awl Otlwra that the High Court took the view that the impugned Statutes
0 ·...iragac11:a 0 J can be justified by reason of the fact that power has been
•3
'· · ·conferred on the Vice-Chancellor to make adaptation or
modifications in the pre-existing Statutes by s. 60(ii).
The question which arises for our decision is whether
the impugned Statute 2(4)' is valid, and if yes, whether the
impugned order is justified. We may also have to decide whether the impugned Statute 3(1) is invalid either wholly or
in part. The question as to whether the power to make adaptations or modifications justifies the impugned order presents
no difficulty, because we have come to the conclusion that
the impugned Statute 2(4) is itself invalid, and so, the impugned order must be struck down on that ground. If the statute,
on the authority of which the impugned order has been passed·
is itself invalid, the power to make adaptations and modifications cannot help to sustain the validity of the impugned
·order. The power to make adaptations and modifications conferred on the Vice-Chancellor by s. 60(ii) of the Act must
be read in the light of the substantive provisions contained
in s. 30(d) in regard to affiliate4 college, and they cannot
obviously justify the impugned order ·if the impugned Statute
2(4) itself is invalid. This position cannot be disputed, and
so, we go back to the question as to whether the impugned .
statute 2(4) is valid.
The decision of this question presents also no difficulty.
because, on the face of it, the impugned statute is inconsistent with the relevant provisions of the Act. It will be recalled
that the Act proceeds on a broad and well-recognised distinction between two categories of collegiate institutions, one
instituted by the University and the other admitted to the
University or affiliated to it. Section 4(10) of the Act is based
on this distinction, and s. 30(d) & (e) also proceed on the
same distinction. Where the University instituted collegiate
institutions, naturally the task of instituting is the task of
the University, and so, the management and the maintenance
of the said institutions is also the University's responsibility.
The position is substantially different where collegiate institutions are started by other autonomous bodies
and they
seek admission or affiliation to the University. In regard to
this class of collegiate institutions, their institution as well
as their management and maintenance is not the direct concern of the University; that is the concern of the autonomous
educational bodies which have sponsored them and which
have undertaken the task of instituting, managing and maintaining them. It is, of course, true that when admitting or
'
-
,....
'
'
'
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7 S.C.R.
SUPREME COURT REPORTS
887
affiliating such institutions, the University can impose reason1964
able and legitimate conditions subject to the provisions of Bishuhwar Dayal
the Act, and it follows that on the failure of such college
Sinha
either to conform to those conditions or on their committing
u,.;.,~;;ty of
breach of any of those conditions, it would be competent to
Bihor and 0t4,,.
the University under its relevant powers to disaffiliate them a . _,
-'1:a a.J
· d
II
b
h'
a.ie-rag~ r,
'
and deny them the status of adm1tte co eges; ut t 1s power
is very different from the power to constitute the Governing
Bodies of such autonomous educational bodies. The University may insist upon the observance of conditions in respect
of the composition of the Governing Bodies, but it cannot
direct the composition of the Governing Bodies itself; the
two powers are distinct and separate. Whereas in the case of
institutions started by the University, the University has to
decide who would constitute the Governing ·Bodies, in the
case of affiliated institutions, the University can only lay
down conditions and regulations which must be satisfied before
the Governing Bodies are constituted; who should constitute
the Governing Bodies is a matter for the autonomous educational bodies, which spons0r the collegiate institutions, to
decide; how they should be formed, on what principle, and on
what basis, are matters which may well form the subjectmatter of conditions imposed by the University while admitting such colleges or affiliating them. This position, in our
opinion, is plain and has to be borne in mind in considering
the validity of the impugned Statute 2(4).
Now, what does the said statute purport to do? It purports to authorise the Vice-Chancellor lo amend or revise
the constitution wherever it is necessary. It would be noticed
that this power is inconsistent with s. 30(d) of the Act. It is
a power which can be exercised under s. 30(e), but that would
ha".e relati~n only to collegiate institutions started by the
Umvers1ty itself. It can have no relevance to affiliated colleges. If Statute 2(4) had merely authorised the Vice-Chancellor to lay ?own conditions as to how the Governing Bodies
of the affihated colleges should be constituted, it would have
been another m~tter. The Un!".ersity can effectively bring
about a change m the compos1tlon of the Governinu Bodies
of affiliated collc:ges if it is thought necessary and desirable
to do so under its relevant powers. but that must inevitablv
take the form of prescribing general conditions in that behaif
an.d· leavin.g. it to the affiliated colleges to comply with the
said cori~1t10ns .. N~~-compliance with the said conditions
~ay entall the .h~b1hty to be disaffiliated; but that is very
d1ff~ren~ from g1vmg the power to the Vice-Chancellor of the
Um~ers1ty to mak.e the necessary changes in the Governing
~od1es of the affiliated colleges itself. It is plain as we have
JUst seen, that this power is inconsistent with s. '30(d) of the
Act and as such, is invalid.
888
SUPREME COURT R'EPORTS
[1964]
How this power has been worked out is evident from the
Bi•hes/,war Dayal impugned order itself. This order purports to direct the re8~•
constitution of the Governing Body of the Rajendra College
1964
University a/
with immediate effect in order to bring it in conformity with
Bihar and Others
the provisions of the new Statutes. Then, it virtually purports
Gajendragadkar O.J. to nominate some members of the Governing Body. It provides
'
that two staff representatives would continue on the Governing Body as at present. Then, it adds five persons to the said
Governing Body. Then, it purports to make a change in
regard to the three seats reserved for the Founders, Donors,
Benefactors or Sponsors, and nominates three persons in that
behalf. It also directs that the co-opted member Mr. Bishwanath Prasad Mishra will also continue till the fresh co-option
is held; then it nominates Mr. Ganga Prasad Sinha, Advocate,
Chapra, as the Secretary of the Governing Body of the College with immediate effect. Thus, it is plain that the power
conferred on the Vice-Chancellor by statute 2(4) has been
exercised by him by not only directing how the Governing
Body should be constituted on principle, but by nominating
different persons on the Governing Body. The basis on which
a Governing Body should be constituted is very different from
nominating several persons on the said Governing Body. It
is the latter course which has been adopted by the Vice-Chancellor and which is inconsistent with s. 30(d) of the Act. At
this stage, it is necessary to add that the cour~e adopted by
the Vice-Chancellor in the present case is als6 inconsistent
with Statute 2(4) itself. The said Statute merely authorises
the Vice-Chancellor to amend or revise the constitution of
the Governing Bodies of admitted colleges whenever necessary, and as we have already held, even the conferment of
this power is ultra vires. the Statute. But what the ViceChancellor has done has gone beyond even Statute 214); he
has not only amended or revised
the constitution of the
Governing Body, but has also nominated certain persons on
it. Thus, this action of the Vice-Chancellor suffers from the
double infirmity that it is inconsistent even with Statute 2(4)
and is purported to have been issued under Statute 2(4)
which itself is invalid. Unfortunately, the High Court appears
to have failed to take into account the basic difference between the two categories of collegiate institutions, and the
powers conferred on the University severally in respect of
them. The view taken by the High Court about the validity
of Statute 2(4) completely obliterates the difference between
the two kinds of collegiate institutions and treats all collegiate institutions, whether instituted by the University, or
affiliated to it, as falling completely under the manageme~1t
of the University itself. We accordingly hold that Statute
2(4) is invalid, and the impugned order passed under it is,
therefore, invalid and inoperative.
'
#
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7 S.C.R.
SUPHK'liE COUHT HEPOHTS
889
Then, as to statute 3(1), the Syndicate may have the
1964
power to cancel its grant-in-aid to the callege concerned, but Biskesh:;; Dayal
in so far as 3(l)(a) seems to contemplate that if the affiliated
Sinka
college refuses to submit to the order passed by the Syndicate
u . v •. 1
dissolving and ordering reconstitution of its Governing Body,
a;h:,~"::d.$/f,,.
the pena.lty of the cancellation of grant-in-aid may follow,
.
-
it must be held that that part of Statute 3(1) is invalid. It Ga;endragadkar,O.J.
would b~ open to the University to direct that the composition of the Governing Body should conform to conditions
which may be changed by the University under its relevant
powers and if the said conditions are not duly complied with
by the affiliated college or its Governing Body, suitable and
permissible action may be taken; but in so far as Statute 3
(I) procr:eds on the basis that the Syndicate can itself dissolve the: Governing Body and order its reconstitution, it
suffers from the same infirmity as Statute 2(4). That is why
we hold that Statute 3(1) in so far as it gives power to the
Syndicate to dissolve and reconstitute the Governing Body
and enables it to cancel its grant-in-aid to an affiliated college
under 3(J!)(a) for the reason that the direction issued by the
Syndicate in that behalf has not been complied with, is
invalid.
The learned Attorney-General has relied on· the fact that
the Vice-Chancellor was compelled to pass the impugned
order, because the affairs of the Rajendra College were mismanaged and a very grave situation arose as a result of which
the authorities were faced with a serious law and order problem. In that connection, he invited our attention to the·
statements made in the impugned order in regard to the background of circumstances which compelled the issue of that
order.
These statements were, however, disputed by the
appellant in his writ petition. The High Court has not considered the question as to whether the statements made in the
impugned order are proved to be true and we propose to express no opinion on that aspect of the matter ourselves. We
are, however, prepared t.:> assume that the Vice-Chancellor
-
~elt con_ipelled to issue the order and that he acted bonafide
m the mterests of the students studying in the Rajendi'a·
College. It is quite possible that the affairs of an affiliated
college may be mismanaged and a situation may arise where
either- the University or the Vice-Chancellor may feel justified
in taking drastic action to save the situation, because, afterall, in dealing with the problem of efficient management of
affiliated colleges, th7 consideration of paramount importance
..
must always be the mter7sts of the students studying in such
college~; an.d so,. theoretically, there can be no objection to
the Um~ers1ty bemg empowered to take suitable and reasonable action to meet emergencies arising from mismanagement
of affiliated colleges which expose the students to the grave
890
SUPREME COURT REPORTS
(1964)
1964
risk of interruption in their smooth academic work. But the
Bis4es/•war Dayal question which we have to decide in the present appeal is not
Sinka
whether the University or the Vice-Chancellor should not
u . v .. 1
have such power; the question is whether such a power can
Bi,.;'.~~;,:) l/;lf,,. be claimed by the Statute under the provisions of the Act,
. --
and that question, in our opinion, admits oj only one answer
11•Jewdragadkar,O.J. under the Act as it now stands. The Legislature may consider
whether any suitable amendment should be made in that
behalf. That, however, is irrelevant to the point with which
we are concerned.
There is another consideration which we may incidentally mention in this connection. The autonomous bOdies
which institute colleges and help the progress of higher education in this country, are generally run by disinterested
persons, and it is of some importance that the autonomy of
such bodies should not be unduly impaired. When colleges
run by such autonomous bodies seek affiliation to a University, the University undoubtedly has a right to impose reasonable conditions for affiliation and normally, the supervision
exercised by the University over the affairs and administration
of its affiliated colleges effectively serves the purpose of
requiring the said colleges to conform to the pattern of management and education in force in the Government colleges
or colleges instituted by the University. In resolving a possible dispute between affiliated colleges and the University,
attempt should be made to respect the autonomy of the colleges and reconcile the same with the supervisory powers ot
the University which are intended to be exercised in order
to make functioning of the affiliated colleges efficient and
progressive. Both the University and the affiliated colleges
seek to serve the cause of higher education and there should
really be no serious dispute as to the principles on which
their mutual relations should be regulated. Unfortunately, in
the present case, the Vice-Chancellor appears to have acted
with some haste and he has ·exercised powers under Statutes
which were themselves hastily framed and which are plainly
inconsistent with the provisions of the parent Act.
There is one more point to which we must refer before
we part with this appeal. The validity of the Statutes was
challenged by the appellant on the additional ground that
when they were made by the Vice-Chancellor, the power conferred on him by s. 35 of Act II of 1962 had come to an end.
The said section empowered Jhe Vice-Chancellor to exercise
the powers bf the appropriate Bodies of the University for
a period not exceeding nine months, or until the respective
Bodies were reconstituted. The appellant's case before the
High Court was that the Senate had heen reconstituted in
the first week of November, 1962 and in fact. notices had
been issued to call for a meeting of the said Senate on the
'-
..
..
-
7 S.C.R.
SUPREME COURT REPORTS
891
30th November. That being so, with the reconstitution of the
l964
Senate the statutory power of the Vice-Chancellor under s. Bis/i"hwar Dayal
35 came to an end, and so, the Statutes which were promulSin/1a
gated on the 18th November, 1962 were invalid. The High
un;,.,;;,,Y of
Court has rejected this contention mainly on the ground that
Biha1tmd Other•
the Senate was not duly constituted even on the 30th Novem-
. --
ber, 1962 "inasmuch as the application of Mr. Baleshwar 0•;ewiragadkar,O.J.
Prasad Choudhary filed in the High Court was still pending
and the question had still to be decided as to whether he was
entitled to be a member of the Senate as being a donor of
the Dalsingsarai College". The High Court thought that
since an order of stay had been passed by it, there could b;:
no meeting of the Senate even on the 30th November, 1962,
and so, after address of the Chancellor, the meeting had to
be adjourned. It appears that the stay order passed by the
High Court was in relation to the direction issued by the
Chancellor prohibiting Baleshwar Prasad Choudhary from
acting as a member of the Senate and that strictly may not
have a material bearing on the question as to whether the
Senate had been properly constituted before the 18th November, 1962 or not. The appellant's case is that since a meeting
of the new Senate had been called for the 30th November,
by a notice issued in that behalf on the 8th November, it
postulates that the Senate had been duly constituted before
. the 8th of November and for the proper reconstitut.ion of the
Senate, it was not necessary that it should actually hold its
first meeting. On the other hand, the learned Attorney-General contends that the material adduced on the record of these
proceedings is wholly insufficient to justify the finding that
the Senate had been duly constituted bdore the 18th November, 1962. We are satisfied that the contention raised by the
Attorney-General is sound·. On the available material, we
see no evidence on which it could be held that a Senate had
been reconstituted on any particular date, and so, we q.o not
propose to record any conclusion on this part of the ·appellant's case. All that we would like to add is that the finding
of the High Court on this point should not be taken to be
binding, and if in future this question arises, it may have to
be decided on the merits afresh.
The result is, the appeal is allowed, the order passed
by the High Court is set aside, and the writ petition filed by
the appellant is allowed. An order will accordingly be issued
restraining the respondents from giving effect to the impugned
order (Annexure A), because the said order, and Statute 2(4)
and a part of Statute 3(1) on which it is based are invalid
and inoperative. The appellant would be entitled to his costs
from respondent No. 1 throughout.
·
Appeal allowed.