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Judgment
Nagendra Rai, J.—The Petitioners, namely, Governing Body of Baba Bhut Nath College, Awasani Bagaha, District-West Champaran Bettiah and Daya Nand Dwivedi, claiming him-self to be the Secretary of the said College, have filed the present writ application for quas-hing the Notification dated 22nd March, 1990, issued by the Bihar University under the signature of the Registrar of the said University, as contained in Annexure-1, by which the Vice Chancellor has nominated three persons, i.e. Respondents No. 3 to 5, as members of'' the Governing Body of Baba Bhut Nath College Bagaha, as provided u/s 60(1)(iii), (1)(iv), (1)(vi) of the Bihar State Universities, Act, 1976 (hereinafter referred to as ''the Act'') as well as the Notification dated 18th July 1990, as contained in Annexure-2, by which the Vice Chancellor, in exercise of the power u/s 3(v) of Chapter XIII of the Bihar State University Statutes (hereinafter referred to as the ''Statutes'') has appointed the Subdivisional Officer, Bagaha (West Champaran) (Respond dent No. 4) as President and Sri Madan Prasad Gupta (Respondent No. 6) as the Secretary of the aforesaid College.
The facts giving rise to the filing of the present writ application, according to the Petitioners, are that the College in question was established by the local citizens of Bagaha and a Governing Body of the said College was constituted. Petitioner No. 2 was made Secretary of the Governing Body. The Governing Body applied to the Bihar University for affiliation of the College. The University sent the matter to the Government for approval and the State Government by its Memo No. 371 dated 24.4.1987 granted approval for the affiliation of the College for three current sessions, i.e., for 1986-87, 1987-88 and 1988-1989, a copy of the aforesaid memo has been made Annexure-3 to the be application. The order granting affiliation to the College for three consecutive sessions ended in the year 1989, thereafter, the affiliation has not been extended by the University. According to the Petitioners, as there is no affiliation of the College to the University after 1989, the University has no right to interfere with the affairs of the College and accordingly, the two Notifications issued by the University, as contained in Annexures-1 and 2, are without jurisdiction.
A counter affidavit has been filed on behalf of Respondent No. 6 denying the assertion made in the writ application. It is asserted on behalf of Respondent No. 6 that Petitioner No. 1 is neither the Governing Body of the College nor Petitioner No. 2 is the Secretary of the, College. Petitioner No. 2 was never connected with the affairs of the College, on the other hand, Respondent No. 6 had claimed to be the Secretary of the College since before the affiliation of the College and it was due to his efforts that a sum of Rs. 1,00,000/-was deposited in the reserve fund of the University and thereafter the approval of affiliation of the College was granted. It was also stated that the Principal of the College had applied before the University for affiliation of the College under Memo No. 0351/89 dated 21-5-1989 and the matter is pending before the University. The University is competent to interfere with the affairs of the College during the pendency of the application for extension of affiliation in terms of the provisions contained in Chapter XIII of the Statutes. The University was competent to issue Notifications, as contained in Annexures-1 and 2.
The Petitioners filed a reply to the counter affidavit, wherein the Petitioners reiterated the statements made in the writ application and asserted that Petitioner No. 2 was the Secretary of the College prior to the affiliation. The assertion made in the counter affidavit that the matter of affiliation is pending before the University was also denied.
Learned Counsel appearing on behalf of the Petitioners submitted that the power to constitute a Governing Body or an Ad hoc Committee, if the Governing Body is not constituted under the provisions of Section 60(1) of the Act, can be exercised only when the College is affiliated one. If there is no affiliation of the College to the University then the University has no power to constitute a regular/adhoc committee under the provisions of the Act or the Statues framed thereunder.
Learned Counsel appearing for the State, the University as well as the learned Counsel appearing for Respondent No. 6 submitted that the Vice Chancellor has power to issue the aforesaid Notifications as the question of affiliation is pending before the University. They also contended that even if it is assumed that the Vice Chancellor has no power to issue the aforesaid two Notifications even then no direction can be issued in favour of the Petitioners, as they are in no way connected with the affairs of the College.
It is to be stated at the very outset that the Vice Chancellor constituted an ad-hoc Committee for the management and administration of the College in question by Notification dated 4-7-1988 and the Petitioners challenged the aforesaid order in this Court in C.W.J.C. No. 5157 of 1988 and this Court quashed the aforesaid Notfiication on the ground that the order was ultra vires Section 60(4) of the Act and directed the University to proceed in accordance with law to constitute a regular Governing Body or appoint an ad-hoc Governing Body in lieu thereof. Thereafter, the Vice Chancellor took steps in the direction of constitution of regular Committee in accordance with the provision of Section 60 of the Act. By the Notification, contained in Annexure-1, he nominated Kapildeo Narain Singh (Respondent No. 3) as representative of the University u/s 6(1)(iii), S.D.O., Bagaha (Respondent No. 4), an Officer of the State Government (Respondent No. 5) u/s 60(1)(iv) and a Member of Parliament u/s 60(1)(vi) of the Act. The Vice Chancellor nominated Respondent No. 4, the S.D.O. as President and Respondent No. 6 as Secretary from amongst the members of the Governing Body in exercise of the power under Chapter XIII, Clause 3(v) of the Statutes-vide Annexure-2.
The only question in controversy in the present case is as to whether the Vice Chancellor has power to issue Notifications, as contained in Annexures 1 and 2 after the period of affiliation has come to an end.
It is not in dispute that the affiliation was granted by the University for a period of three years which ended in 1989. Section 60 of the Act provides for constitution of the Governing Body for the management and administration of each affiliated College other than the College owned and maintained by the State Government or a College established and administered by minority community on tie ground of religion or language or an affiliated technical or medical College. The Governing Body so constituted consists of (i) Principal of the College (Ex-Officio), (ii) a member elected by and from amongst the teachers of the College, (iii) a representative of the University nominated by the Vice Chancellor; (iv) an Officer of the State Government posted in the district, being not below the rank of a subdivisional magistrate, nominated by the Vice Chancellor; (v) a member elected by such doners from amongst themselves as have donated at least twenty five thousand rupees to the College; (vi) one member to be nominated by the Vice Chancellor who is a member of the Parliament or the State Legislature and mainly resident in the district of the area in which the College is situated and (vii) one member co-opted by the Governing Body from amongst such educationists or persons residing in the district where the College is situated as are reputed for their academic interest. Sub-section (2) of Section 60 provides that the terms of office of the members of the Governing Body, their powers and functions be such as are prescribed by the Statutes. Sub-section (4) of Section 60 provides that the Vice Chancellor shall constitute an ad-hoc Committee for the management of the College so long as a Governing Body is not constituted in accordance with the provisions contained in Sub-section (1). Affiliated College has been defined u/s 2(c) which means educational institution having received privileges of the University according to the provisions of this Act and University Statutes thereto. Chapter XIII of the Statutes framed u/s 34 of the Act deals with the Governing Body. Clause (1) of the said Statutes provides for constitution of a Governing Body, Clause 1(2) (i) provides that if for any reason the Governing Body of an admitted College is not const-ituted, the Syndicate shall constitute an ad-hoc Committee of not more than five members until a Governing Body is constituted. The power to constitute ad-hoc Committee is now vested in the Vice Chancellor by virtue of the amendment brought in Section 60(4) of the Act by Act 3/1990 (Bihar State Universities (Amendment) Act. Clause 3(v) of Chapter XIII of the Statutes, the Vice Chancellor is empowered to nominate President and Secretary from amongst the members of the Governing Body within 21 days of the co-option of the member under Clause (vii) of Sub-section (1) of Section 60 of the Act.
Thus, it is clear from the aforesaid provision that the Governing Body is constituted in accordance with the provision of Section 60(1) of the Act read with Clause (1) of Chapter XIII of the Statutes and after the co-option of the members under Clause (vii), Sub-section (1) of Section 60 of the Act, the Vice-Chancellor has to nominate President and Secretary from amongst the members of the Governing Body in exercise of the power under Clause 3(v) of Chapter XIII of the Statutes.
As noticed above, Section 60 provides, inter alia, for the constitution of regular Committee for the administration and management of the affiliated College. It is well settled that if the statutory power is vested in an authority to be exercised by it on fulfilment of certain conditions then the authority can exercise that power only on the existing of the said conditions. If the conditions precedent for exercising power are lacking then the action of the authority will be without jurisdiction. In other words, if the statute has conferred a power to be exercised only in certain definite circumstances and if the requisite circumstances are non-existent and even then the power has been exercised by the authority then its action will be ultra vires. In my opinion, Section 60(1) of the Act confers power on the authority to constitute a regular Committee only if the College is affiliated one. If there is no affiliation/admission of the College to the University, it has no power to constitute a regular Committee or ad-hoc Committee, As noticed above, admittedly, on the dates when the notifications were issued the College was not affiliated and as such the action of the Vice Chancellor in nominating the member under Clause (iii), (iv), (vi) as well as nominating the President and Secretary are ultra vires.
The learned Counsel appearing for Respondent No. 6 contended that even if there is no affiliation of the College to the University and the matter of affiliation is pending before the University, the Vice Chancellor has power to take steps in the direction of constitution of regular Committee u/s 60 of the Act and as such the notifications issued by the Vice Chancellor (Annexures 1 and 2) are not beyond the power of the Vice Chancellor. In this connection he relied upon the cases reported in Murarilal Jhunjhunwala Vs. State of Bihar and others, and 1991 (2) PLJR 513 (Prem Nath Singh v. The State of Bihar and Ors.) In my opinion, none of these cases has any relevancy on the point in contorversy. In the case of Murarilal Jhunjhunw-ala (supra) the question involved was as to whether the accused can be prosecuted for violation of the provisions of the Bihar Trade Licencing Unification Order. In the said case accused had applied for the licence and had done everything on his part and even then the licence was not grafted to him. Dealing with the said question it was held by the Supreme Court that if the Appellant had done everything on his part and the licence was not granted due to inaction of the authority under the aforesaid Unification Order, the accused was not liable to be prosecuted. The other case relied upon by the Petitioners is also almost on the same line and is wholly irrelevant for deciding the question involved in the present case.
Learned Counsel appearing for the Respondent No. 6 also placed reliance upon the order dated 30th November, 1988, passed by a Division Bench of this Court in C.W.J.C. No. 3481/88 (Bihar Homeopathic Medical) College and Ors. v. The University of Bihar and Ors.) From the facts of the said case it appears that the Petitioners sought affiliation to the Bihar University for the degree courses including Diploma and Graded Courses in Homeopathic medicines. The Bihar University and the State was granted time to file counter affidavit but they did not chose to file counter affidavit and then this Court held that so long as the matter was not decided by the concerned authority, in accordance with law, the Petitioners of that institution shall be taken to have been granted temporary affiliation for the aforesaid courses. He also relied upon the order dated 2.8.91 passed in C.W.J.C. No. 50 of 1991 (Bihar Homeopathic Medical College v. The State of Bihar and Ors.), filed by the same Petitioners of C.W.J.C. No. 3481/88. In that case also this Court reiterated the same view which has been taken in the earlier writ application. The learned Counsel for the Respondents, with reference to the aforesaid directions, submitted that in this case also the matter regarding permanent affiliation is pending, this Court should also treat the institution in question to have been granted temporary affiliation on and from the date when the application for such affiliation was made and finally decided one way or the other by the Respondent concerned in accordance with law. I am unable to accept this submission for the simple reason that in the facts and circumstances of the present case, no provision either in the Act or in the Statutes has been brought to our notice which authorises to treat the institution in question to have been granted temporary affiliation on and from the date of making of application for permanent affiliation until finally decided. This apart, the aforesaid observations were made by this Court in the peculiar facts and circumstances of the case in C.W.J.C. No. 3481/88, as in that case the University and the State did not contest the application by filing counter affidavit.
Section 60 of the Act does not speak of the fact that even if the application, for affiliation is pending, the authority mentioned in the said clause has power to constitute a Governing Body or ad-hoc Committee. The wordings of Section 60(1) of the Act are clear and unambiguous. The power to constitute a regular Committee is to be exercised if the College it admitted College. The Court cannot rewrite or recast the statutory provision for the obvious reason that it has no power to legislate. If I accept the contention of the learned Counsel for the Respondent No. 6 that even in cases where the application for affiliation is pending, the Vice Chancellor has power to constitute a Committee that would amount to making additions in the Act and Statutes which, in my opinion, is not permissible in law. In absence of any such provision, it is difficult to accept such contention of the learned Counsel for the Respondent and the same is fit to be rejected.
After considering the matter from different angles, I have no hesitation in coming to the conclusion that if the College is not affiliated one, the Vice Chancellor has no power, to constitute regular or ad-hoc Committee, as the case may be, u/s 60 of the Act. Pendency of application for affiliation will not confer power in the Vice Chancellor to constitute a regular or ad-hoc Committee. In view of the aforesaid conclusion the two Notification (Annexures 1 and 2) impugned in the present case are illegal and ultra vires the power of the Vice Chancellor and, accordingly, they are quashed.
It appears from the record that the matter with regard to grant of affiliation to the College is pending, at present before the State Government for approval. In the facts and circumstances, I direct the State Government to consider and decide the question of granting approval for affiliation of the College within a period of four months from the date of receipt/production of this order. It goes without saying that in case affiliation is granted to the College in question, it will be open for the Vice Chancellor/competent antuhority to take steps for constitution of the regular Governing Body either u/s 60(1) of the Act or an Ad-hoc Body u/s 60(iv) of the Act.
In the result, the application is allowed with the aforementioned directions, and the Notifications as contained in Annexures 1 and 2 are hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs.
Radha Mohan Prasad, J.
I agree.