Priyadarshni Institute of Management & Science vs University of Jammu and others

Petitioner is an Institute of Management and Science established and managed by a Trust, namely, M/s Durga Devi Educational Trust

(hereinafter to be referred as ''the petitioner-nstitute). It has btained affiliation from the University of Jammu (hereinafter to be referred as ''the

respondent-university) for imparting instructions in BBA and BCA. Besides, it claims to have sought approval and recognition from All India

Council for Technical Education and the respondent-university for imparting instructions in MBA and MCA. Respondent-university by an order

issued by the Director, College Development Council (CDC) vide No. CDC/2011/206-218 dated 25-4-2011 (hereinafter to be referred as the

impugned order) has disaffiliated the petitioner-institute for the Session 2011-12 and onwards with a further direction that the institute shall not

henceforth impart instructions in BBA, BCA, MBA and MCA courses. The disaffiliation has been ordered in terms of Statute 63 of the University

Statute. The cause of disaffiliation is non-submission of the Registration Returns of the students admitted in BBA/BCA programme, Part 1st, 2nd

and 3rd for the Session 2010-11 to the respondent-university and holding of fake examination by the petitioner-institute of its own.

Feeling aggrieved by its disaffiliation, petitioner-institute has filed this writ petition seeking writ, order or direction in the nature of writ of

certiorari quashing the decision and the order of disaffiliation dated 25-4-2011. In addition, petitioner seeks writ, order or direction to the

respondents in the nature of writ of mandamus to wait for the decision of competent court in the criminal case registered by Police Station, Gharota

against an employee and Chairman/Secretary of the petitioner-institute in the matter, to allow the petitioner-institute to impart instructions in BBA,

BCA, MBA & MCA without any interruption or hindrance, to desist from reallocating the students pursuing courses in petitioner-institute to other

institutes and not to issue roll numbers in favour of these students.

Heard Mr. Sunil Sethi, Senior Advocate, learned counsel for the petitioner and Mr. W. S. Nargal, Advocate, learned counsel for the

respondents.

The impugned order dated 25-4-2011 would show that a complaint about holding of fake examination by the petitioner-institute was lodged by

one of its Part 2nd students, Urvashi Sharma, which was received in the office of the Controller of Examinations of the respondent-university on

26-3-2011. On 27-3-2011, the Vice-Chancellor of the university constituted an inquiry committee comprising of three professors of the university.

The committee submitted its report on 30-3-2011. In this report the findings of the inquiry committee are stated to have established:

''i) That the Priyadarshni Institute of Management Sciences Purkhoo, Jammu had not submitted the Registration Returns (R.R.) for the

candidates admitted in BBA/BCA Programmes for Part 1st, 2nd and 3rd for the session 2010-11;

ii) That the Controller of Examinations had also not received examination forms of the said students who would have been writing their

exams for above said BBA/BCA courses of the University;

iii) That the Priyadarshni Institute of Management Sciences, Purkhoo, Jammu held fake examinations and fake question papers were

supplied to the students in examination so conducted despite the fact that no examination centre had been constituted by the University in the

Priyadarshni Institute of Management Sciences, Purkhoo, Jammu for any Under Graduate Examination of Part 1st, 2nd and 3rd BCA/BBA

for the session 2010-11;

iv) That to create an impression of real examination so conducted in the Priyadarshni Institute of Management Sciences, Purkhoo, Jammu,

fake flying squads were created who visited the FIMA examination centres for BBA/BCA Part-1;

v) That fake roll numbers/roll number slips were issued to the students to create an impression of genuineness of the examination;

vi) That fake marks sheets of the original examination and revaluated results thereof were also distributed to the students of Priyadarshni

Institute of Management Sciences, Purkhoo, Jammu.''

The impugned order further shows that on receipt of the report of the inquiry committee, the CDC vide No. CDC/2011/86-87 dated 7-4-2011

issued show-cause notice of seven days to the petitioner-institute to explain as to why the institution should not be disaffiliated for contravention of

Statute 63 (1) of the University Statute. This notice is said to have been issued to provide the petitioner-institute an opportunity of being heard in

confirmation with principle of natural justice.- Reply to show-cause notice was received in the office of the CDC on 13-4-2011. The stand of the

petitioner-institute was that the whole illegality and irregularity was committed by a lecturer of the institute, Mr. Joginder Sharma, who was made

in-charge of conducting the examination of BCA and BBA. After receiving the reply to the show-cause notice, the complete record including the

report of inquiry committee and reply to the show cause notice came to be placed before the University Syndicate in a special meeting held on 19-

4-2011, which '' after detailed discussions on various issues and taking cognizance of grave fraud of fake conduct of the examinations and forging

of records thereby jeopardizing the future of students and severally affecting the reputation of the University-resolved that the petitioner-institute be

disaffiliated from academic session 2011-12 and onwards and the students pursuing course(s) in the said institute be reallocated to other private

colleges affiliated to the respondent-university after their proper screening. The impugned order, thus, came to be issued on 25-4-2011.

The holding of the fake examination and the manner in which it was dramatized is not denied by the petitioner-institute. The case set by the

petitioner-institute, however, primarily is that the fraud involving holding of fake examination of students undergoing BBA and BCA course without

depositing the examination forms of the students was committed by te lecturer, Joginder Sharma, who had been made superintendent of the

institute and his duty was to liaison between the institute and the respondent-university and to co-ordinate the holding of examination etc. It is

contended by the petitioner-institute that registration and examination fee of all such students was duly deposited in the account of respondent-

university and that neither the Chairman nor the Secretary or any other member of the management of the petitioner-institute was involved in the

said illegal activity. It is further contended that the promoters of petitioner-institute got knowledge of the fake examination on 26-3-2011, they

immediately informed all the students not to appear in the examination and contacted police for registration of FIR against said Joginder Sharma.

The police, however, did not take congnizance of the complaint lodged by them and instead registered FIR against them on the basis of a

complaint lodged by parents of some students.

Petitioner-institute assails and seeks quashing of the impugned decision of disaffiliation and the impugned order dated 25-4-2011 mainly on two

grounds. Firstly, it is contended that the impugned decision infracts the principles of natural justice mandated under Clause (8) of Statute 63 of the

University Statutes as the inquiry committee did not issue notice of inquiry to the management of the petitioner-institute and the inquiry was

conducted at their back. Contextually, it is contended that the copies of the complaint, which was the basis of the inquiry or the material relied

upon by the committee were not provided to the petitioner-institute nor the findings/recommendations of the committee were made known to the

petitioner-institute. Secondly, it is contended that impugned order is illegal and arbitrary for the reason that it has been issued before culmination of

the criminal proceedings by a competent court arising in the FIR involving the allegations in question. In addition, it is contended that respondent-

university did not accord any consideration to the explanation furnished by the petitioner-institute in their reply to the show cause notice. The

impugned decision has been taken in haste to cause serious and severe prejudice to the petitioner-institute notwithstanding that investigation in the

police case is still pending. It is contended further that petitioner-institute could not have been disaffiliated for undertaking/affiliation in this regard

has been granted by All India Council for Technical Education which alone could have taken any decision with regard to disaffiliation to that extent.

Respondent-university has opposed the writ petition phrasing the incident as a '' rarest of rare, institutional fraud where the petitioner-institute

has committed a grave fraud by running a parallel university by holding fake examination and supplying fake question papers to the students. It is

contended that the petitioner-institute had gone to the extent of issuing fake roll numbers/roll number slips to create an impression of genuineness of

the examination, besides issuing fake mark-sheets of the original examination and revaluation results were also distributed to the students. It is

stated that violation committed by the petitioner-institute was of grave nature, which has shaken the confidence of public at large and students in

particular so the university was within its right to disaffiliate the institute straightway in terms of Statute 63, Clause (8) in public interest without even

issuing show-cause notice, though in order to give the petitioner-institute an opportunity of being heard, a show cause notice was issued before

taking the decision of disaffiliation.

In regard to the grounds on which impugned decision and order has been assailed by the petitioner-institute, it is contended on behalf of

respondents in their reply that criminal proceedings and the action to be taken under University Statutes are two different aspects and the university

is not required to wait for the result of the criminal proceedings before taking action as contemplated under the Statutes. In regard to the violation

of the Clause (8) of Statute 63 of the Statute, the stand of respondent-university is that in face of the gravity of the violation committed by the

petitioner-institute the university was within its right to disaffiliate the institute straightway in public interest without even issuing a show cause notice,

though in order to give the petitioner an opportunity of being heard, show-cause notice was issued to explain as to why the institute be not

disaffiliated and that entire matter including the reply filed by petitioner-institute was considered in a special meeting of the Syndicate and decision

was taken after thorough deliberation and discussion in the matter.

In regard to the disaffiliation insofar as it extends to MBA and MCA courses, the stand of respondent-university is that All India Council of

Technical Education is only an advisory, recommendatory and guiding body in relation to Technical Education programmes and has nothing to do

with affiliation/disaffiliation of the institutes imparting such programmes, which aspect lies within the domain of the University with which the Institute

is affiliated.

Learned counsel appearing on behalf of the petitioner-institute would submit that the inquiry committee was required to issue notice of inquiry

to the petitioner-institute to enable it to take part in the inquiry and prove its innocence. Learned counsel submitted further that the management or

the promoters of the institute were not involved in holding of the fake examination, which was engineered by an employee of the petitioner in

connivance with its adversaries to malign the petitioner. Learned counsel would say that petitioner is a prestigious institute of more than fifteen years

standing as at the time of the incident and its promoters would not have gained anything by deliberately holding fake examination as they were

aware that by holding such examination it was not possible to provide degrees to the students. Referring to Clause (8) of Statute 63 of the Statutes,

learned counsel submitted that it mandates observance of the principles of natural justice by the inquiry committee before making its

recommendations as also a show-cause notice before issuing order of disaffiliation by the university. Learned counsel would say that in order to

comply with the principles of natural justice Clause (8) of Statute 63 casts a duty on the inquiry committee to issue notice of inquiry and to allow

participation in inquiry to the institute against which action is proposed to be taken and after conclusion of inquiry again a notice against proposed

disaffiliation is required to be issued. Learned counsel, thus, argued that by not issuing notice of inquiry to the petitioner-institute principles of

natural justice as envisaged under Clause (8) of Statute 63 have been violated and impugned decision as well as order of disaffiliation is illegal and

liable to be quashed on that score. Learned counsel urged that compliance of the principles of natural justice is not an empty formality. The

purpose of observing the principles of natural justice is aimed at checking arbitrary exercise of power and to prevent miscarriage of justice. An

order passed without providing opportunity of hearing to a person against whom it is passed causes prejudice and is liable to be set-aside. Learned

counsel argued also that the disaffiliation is bad also for the reason that it has been ordered without waiting for the culmination of the criminal

proceedings involving the allegation in question.

Per contra, learned counsel appearing on behalf of the respondent-university would say that Clause (8) of Statute 63 does not contemplate any

notice by the inquiry committee though it contemplates only a show-cause notice before passing order of disaffiliation, which was duly issued by

the CDC to which a detailed reply was furnished by petitioner-institute, which was duly considered by the University Syndicate. Learned counsel

argued that the holding of fake examination was admitted by the petitioner-institute and it having been provided opportunity to show-cause against

disaffiliation, which was availed, no prejudice can be said to have been caused to the petitioner-institute by not issuing notice of inquiry, even if it is

presumed for the sake of argument that such a notice is required. Learned counsel argued that principles of natural justice cannot be put in a

straitjacket formula and a party questioning an administrative action due to non-compliance of the principles of natural justice has to show also that

prejudice has been caused to him. Learned counsel submitted that petitioner-institute was involved in a grave act of holding fake examination,

which it has not denied, the prescribed action taken by the respondent-university against it should not be disturbed. Learned counsel cited three

judgments, namely, Vice Chairman Kendriya Vidyalaya Sangathan and Anr. v. Girdhari Lal Yadav (2004) 6 SCC 325; Director (Studies), Dr.

Ambedkar Insitute of Hotel Management, Nutrition and Catering Technology, Chandigarh v. Vaibhav Singh Chauhan (2009) 1 SCC 59 : (AIR

2008 SC (Supp) 696) and Union of India and Ors. v. Shah Goverdhani L. Kabra Teachers-College (2002) 8 SCC 228 : (AIR 2002 SC 3675).

Legal position arising under Statute 63 of the University Statutes is required to be analyzed and understood in order to address the controversy

arising from respective stands of the parties. It is not denied that Clause (1) of Statute 63 empowers the respondent-university to withdraw or

suspend the rights conferred on a college/institution by the university. It is not denied also that affiliation is a right conferred by the university and

can be withdrawn under Statute 63(1). Clause (8) of Statute 63 prescribes the '' procedure for disaffiliation of a college/institution. Clause (1) and

Clause (8), as they should be read in juxtaposition, are reproduced:

''(1) (Disaffiliation) :

The rights conferred on an institution may be withdrawn or suspended for any period if it has failed to observe any of the conditions of

approval or has conducted itself in a manner prejudicial to the interest of education or in contravention of such provision of the Act, the

Statutes or Regulations as are applicable to it as an approved institution.''

''(8) Procedure for disaffiliation:

For any complaints of the major/minor violation by the College/institute, a committee would be constituted to inquire into the allegations and

make recommendations following the principles of natural justice. The recommendation should be placed before the Syndicate for

consideration and orders there upon. However, in case of grave violations, the University may, in public interest, disaffiliate the

college/institute without issuing any show cause notice.

Notwithstanding the above, in case of disaffiliation of a College/Institution, the students admitted would be shifted to other College/Institution

to complete the remaining part of the Course/Programme. In case the shift of students is not possible the University Syndicate shall decide

the fate of such students on case-to case basis.''

A plain look at Clause (8) would show that the committee constituted for inquiring into a complaint has to inquire into the allegations and make

recommendations following the principles of natural justice. The two important rules of natural justice are, nemo judex in causa sua, that is, no one

should be judge in his own cause and audi alteram partem, that is, no person should be condemned without a fair hearing in which each party is

given the opportunity to respond to the allegation and evidence against him. It would, thus, admit of no doubt that the inquiry committee constituted

in terms of Clause (8) of Statutes 63 is required to issue notice of inquiry to the college/institution complaint against which is under inquiry to

provide it opportunity of taking part in inquiry and respond to the allegations and evidence/material against it. Clause (8) by necessary implication

also contemplates a show-cause notice to the concerned college/institution if on the basis of report and recommendation of inquiry committee

disaffiliation is intended, though such show cause notice can be dispensed with in a case of grave violation(s) by a college/institution. Distinction is

required to be drawn between observance of the principle of audi alteram partem by the inquiry committee on the hand and issuance of show-

cause notice before passing an order of disaffiliation on the other. Whereas the show-cause notice required to be issued before taking the decision

of disaffiliation can be dispensed with, observance of the principles of natural justice by the inquiry committee cannot be so dispensed with. It is

mandatory for the inquiry committee to issue notice to the concerned college/institution to enable it to take part in the inquiry proceedings and rebut

the allegations and evidence/material against it.

It has not been denied on behalf of the respondents and is clear from the report of the inquiry committee dated 30-3-2011 that neither the

committee had issued notice of inquiry to the petitioner-institute nor was the petitioner-institute associated in the inquiry to put forth its response to

the allegations and the material in support thereof. Stand of the respondent-university in this behalf is that principle of audi alteram partem was

complied with by issuing notice to the petitioner-institute even though the respondent-university was within its right to proceed even without show-

cause notice. Contextually, the inquiry report dated 30-3-2011 too does not show that the inquiry committee had issued notice of inquiry to the

petitioner-institute and shows only that one of the members of inquiry committee had established telephonic connect with one Professor, Santosh

Gupta, who had replied that though she visits the institute off and on but has not received any formal order appointing her to the post of Director.

The inevitable conclusion, thus, would be that the inquiry committee had failed to follow the principle of audi alteram partem while holding the

inquiry and before submitting its reports in the sense that neither any notice at inquiry stage was issued to the petitioner-institute nor was it provided

opportunity of taking part in the inquiry.

There cannot be any quarrel with the importance of observing the principles of natural justice, in particular the principle of audi alteram partem,

while passing administrative orders having civil or criminal conseqences like that in the judicial and quasi judicial proceedings. Principle of audi

alteram partem envisages that no one should be condemned unheard. No adverse order against a person should be passed without notice and

providing him opportunity of being heard. Passing adverse order without notice and opportunity of being heard may cause prejudice to the person

against whom it is passed because he would not be in position to put forth his case. An authority before passing adverse order against a person is

required to issue show-cause notice to the said person and to provide him reasonable opportunity of being heard to put forth his case.

Question for consideration, thus, arising would be whether the disaffiliation of the petitioner-institute is liable to be quashed for the reason that

the inquiry committee did not issue notice of inquiry to the petitioner-institute and provide it opportunity to take part in the inquiry? Connected

question would be whether prejudice has been caused to the petitioner-institute?

Learned counsel for the petitioner-institute would say that an order passed in breach of the principles of natural justice is void and non est and

should be set aside. Breach of the principles of natural justice admits of no exception so the order of disaffiliation is illegal and liable to be quashed.

Learned counsel for the respondent-university would say that no prejudice has been caused as holding of fake examination is not denied so notice

of inquiry would not have changed the position and have been a useless formality.

In view of the legal position in retrospect and as it by now has by virtue of various judicial pronouncements developed, it would not be possible

to subscribe to a view that High Court in exercise of Writ jurisdiction should set aside an order once it is shown that the same has been passed in

breach of the principle of audi alteram partem without requiring the petitioner to show that the prejudice has been caused and the position would

have been different had he been issued notice and afforded opportunity of taking part in the inquiry proceedings.

In R. S. Dass v. Union of India & Ors., 1986 Supp SCC 617 : (AIR 1987 SC 593), Supreme Court has observed; '' it is well established that

rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the back-ground of statutory

provisions, nature of the right which may be affected and the consequences which may entail, in the facts and circumstances of each case''.

In Vice Chairman, Kendriya Vidyalaya Sangathan (2004) 6 SCC 325, relied upon on behalf of respondent-university, Supreme Court in

paragraph 11 of the reporting has noticed that '' in terms of Section 58 of the Evidence Act, 1872 facts admitted need not be proved. It is also well

settled principle of law that principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula.-

Supreme Court in this case has referred to with approval two earlier judgments of the Court as follows:

''11......In Bar Council of India v. High Court of Kerala (2004) 6 SCC 311 : (AIR 2004 SC 2227) this Court has noticed that: (SCC p.

324, paras 49-50) (p. 2236, paras 50 & 51)

''24. The principle of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the fact and

circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be

permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in

Sohan Lal Gupta v. Asha Devi Gupta (2003) 7 SCC 492 : (AIR 2004 SC 856) of which two of us (V. N. Khare, C.J. and Sinha, J.) are

parties wherein upon noticing a large number of decisions it was held: (SCC p. 506, para 29) (p. 864, para 29)

''29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required

to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously

prejudiced thereby.''

''25. The principles of natural justice, it is well settled, must not be stretched too far.''

In Union of India v. Tulsiram Patel (1985) 3 SCC 398 : (AIR 1985 SC 1416) whereupon reliance has been placed by Mr. Reddy, this Court

held: (SCC p. 477, para 97) (p. 1461, para 97)

''97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and

connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules.

Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which

are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These

rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decided a

particular matter and the rules by which such Tribunal is governed.''

What is required to be determined in a given case is whether and to what extent the prejudice has been caused by not following the principle of

audi alteram partem and can the situation change or improve if the order is set aside and opportunity in terms of the principle is provided. It may be

stated that if an adverse order is passed in breach of the principle of audi alteram partem the affected person may approach the Court to say that

the prejudice has been caused by not hearing him. But if no substantial or de facto prejudice is caused question of breach of the principle would

not arise. If it can be said that the situation would not have been different had the person been heard, no prejudice can be said to have been

caused.

If the facts are admitted or indisputable and there is no possibility of change or improvement in situation even after hearing the person against

whom the order is passed '' useless formality theory-can be brought into service. This theory has now got recognition and can be applied in the

cases where the facts are admitted or indisputable. The '' useless formality theory has received consideration of the Supreme Court in M. C. Mehta

v. Union of India (1999) 6 SCC 237 : (AIR 1999 SC 2583). Their Lordships in para 15 in M. C. Mehta have declared that, '' whenever there is a

clear violation of the principles of natural justice, the Courts can be approached for a declaration that the order is void or for setting aside the

same'' but have posed a question, whether the Court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise discretion

on facts or on grounds that no de facto prejudice is established- . In para 16 of the judgment Their Lordships, however, have pointed out that ''

Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court''s discretion to refuse relief even

though the rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party'' and have concluded in

para 21 that:

''It is therefore; clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need

not issue a writ merely because there is violation of principles of the natural justice.''

In Haryana Financial Corporation and Anr. v. Kailash Chandera Ahuja, 2008 AIR SCW 6055 : (AIR 2009 SC (Supp) 909), Supreme Court

after surveying various authorities on the point has observed in para 25 of the reporting:

''It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (''

Hear the other side'' ). But it is equally well settled that the concept '' natural justice-is not a fixed one. It has meant may things to many

writers, lawyers, jurists and systems of law. It has many colors, shades, shapes and forms. Rules of natural justice are not embodied rules

and they cannot be imprisoned within the strait-jacket of the rigid formula''.

In para-37 Their Lordships pointed out that:

''The recent trend, however, is of '' prejudice- . Even in those cases where procedural requirements have not been complied with, the action

has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had pre-judicially affected the applicant.''

In Umanath Reddy, AIR 2009 SC 2375 (supra), the Supreme Court has observed in para-5 as under:

''The crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any

prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms

of principles of natural justice do not improve the situation, '' useless formality theory'' can be pressed into service''.

Coming to the case on the hand, as pointed out above, holding of fake examination of all the three classes, that is, Part 1st, 2nd and 3rd of

BCA/BBA programme, Session 2010-11, in the petitioner-institute is not denied. It is also not denied that in this exercise fake roll numbers/roll

number slips were issued and fake question papers were supplied to the students and to give semblance of reality to this stage-show, fake flying

squads were created who visited the examination centre in the petitioner-institute. Petitioner-institute has rather admitted this factual scenario

though the stand taken by it is that the promoters or the management of the institute neither had any hand in nor were aware of this illegal show,

which according to them was written, directed and staged by one of its lecturers, Joginder Sharma, who had been made incharge of examinations,

in connivance with some adversaries of the petitioner-institute. Petitioner-institute having not denied the factual scenario, I have no hesitation in

agreeing with the contention of the respondent-university that a rarest of rare institutional fraud was committed in the petitioner-institute.

As the factual scenario, that is, holding of fake examination in the petitioner-institute is not denied, no prejudice can be said to have been

caused to the petitioner-institute by not issuing notice of inquiry to the promoters/management of the petitioner-institute and providing them

opportunity of taking part in the inquiry and putting forth their version before the inquiry committee because it would not have been possible for the

inquiry committee to take cognizance of their version that entire illegal show was written, directed and staged by one of their employees and

absolve them of their liability on that score.

Prejudice otherwise cannot be said to have been caused for the reason that the decision of disaffiliating the petitioner-institute cannot be said to

have been taken without hearing the promoters/management of petitioner-institute or providing them opportunity of being heard and putting forth

their version about the incident. Fact of the matter is that petitioner-institute had put forth its version in its reply to the show cause notice, which

was accorded consideration to by the University Syndicate before taking the decision about disaffiliation of petitioner-institute. Contention of

petitioner-institute that their reply has not been considered by University Syndicate cannot be accepted in view of the factual position arising from

various entries/nothing in the record produced on behalf of the respondents. It is noticed that reply to the show cause notice issued to the

petitioner-institute was received in the University on 13-4-2011 and after that a special meeting of the University Syndicate was held on 19-4-

2011 in which the report of the inquiry committee as well as the reply of petitioner-institute to the show cause notice were taken up for

consideration by the Syndicate as agenda item No. 97.01. Relevant portion of the minute recorded by the Syndicate is reproduced to point out

that the reply of the petitioner-institute was accorded consideration to by the Syndicate:

''item No.97.01

To discuss the fake examination of BBA-Part-I and Part-II and BCA Part-I, II & III examination conducted by Priyadarshni Institute of

Management & Sciences, Purkhoo, Jammu.

The report of the enquiry committee and reply received to the show cause notice was thoroughly deliberated by the members of the

Syndicate. After detailed discussion on the various issues and taking cognizance of the grave fraud of fake conduct of the examination and

forging of records thereby jeopardizing the future of the students and severely effected the reputation of the University by an act committed

by Priyadarshni Institute of Management & Sciences (PIMS) it was resolved that:

Under clause (8) of Statute 63 of University Statues power to accord consideration to the report of the inquiry committee and its

recommendation and to take a decision in the matter is conferred on the University Syndicate. The Syndicate, therefore, being the decision taking

body alone could have accorded consideration to the stand taken by the petitioner-institute, which was duly done. The Syndicate after deliberating

upon and according consideration to the report of the inquiry committee and the of petitioner-institute to the show cause notice has taken

cognizance of '' the grave fraud of fake conduct of the examination and forging of records thereby jeopardizing the future of the students and

severely effecting reputation of the University by petitioner-institute and resolved inter alia to disaffiliate the same for academic session 2010-11

and onwards.

It is noticed that the University Syndicate, which has taken the decision of disaffiliation of petitioner-institute, undoubtedly is a high level body

of experts in the field of education, comprising of various professors, besiders a Commissioners/Secretaries to the Government, Finance and

Higher Education Departments, under the chairmanship of the Vice Chancellor of the University. No fault or arbitrariness can be attributed to their

decision having regard to the rarest of rare incident, which was of the magnitude of not less than a fraud and scandal that had taken place in the

petitioner-institute, nor can it be said that disaffiliation was disproportionate reaction of the University. No lenient view could have been expected

or thought about by the promoters/management of petitioner-institute on a mere say that they had no role in the entire show and by shifting the

entire blame to one of its lecturers. Assumption that an employee of petitioner-institute was in a position to go to that extent could not have been

taken as a mitigating factor in favour of the promoters/management. Prescribing higher standards of education and to maintain purity and strict

discipline in the functioning of education institution, more particularly institutions running graduate and post-graduate programmes, is not only

responsibility but a solemn duty of the University, which has granted privilege of affiliation to an institution. Decision taken in this regard by a

competent authority ordinarily cannot be interfered with by this Court though some interference may be possible only if a strong case of violation of

prescribed legal procedure resulting into serious prejudice to the promoters/management thereof is made out. It would be in place here to refer to

and quote what Supreme Court has observed in Director (Studies) Dr. Ambedkar Institute of Hotel Management v. Vaibhav Singh Chauhan

(2009) 1 SCC 59 in para 11 : (AIR 2008 SC (Supp) 696, para 32) of the reporting:

''We wish to reiterate the view taken in the above decisions, and further state that the High Courts should not ordinarily interfere with the

functioning and orders of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also, there must

be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to

unfair means in the examinations.''

Assail to the impugned order on the ground that disaffiliation should not have been ordered before decision in the criminal case arising in the

FIR lodged against the promoters of petitioner-institute by parents of some of the students has no substance and does not deserve any discussion.

It suffice to say that criminality involved in the illegal act is one aspect of that act which cannot come in the way of taking action as provided under

the University Statute. What shape and finality the criminal proceedings would take is altogether a different matter and even if result therein is

favorable to the petitioner-institute or some mitigating circumstances are established, doors are not closed finally because Statute 63 in its Clause

(9) provides for re-affiliation of a college/institution, which has been disaffiliated and it would be open for the petitioner institute to apply for re-

affiliation if a favourable situation arises.

Petitioner has assailed the impugned order also on the grounds that it has caused lot of hardship and financial loss to the promoters. An action

which is permissible under law will not become illegal on account of its adverse effect to say the least.

For all that said and discussed above, this writ petition does not deserve to be allowed and is, therefore, dismissed.

Disposed of.

Petition dismissed.