NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5920 OF 2012
(Arising out of SLP (C) No. 11883 of 2012)
People’s University … Appellant
versus
State of Madhya Pradesh and another …
Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. This appeal is directed against order dated 28.3.2012 passed by the
learned Single Judge of the Madhya Pradesh High Court whereby he allowed
the review petition filed by respondent No.1, recalled order dated 6.1.2012
passed in Writ Petition No.22021/2011 and issued direction for listing of
the same before the Division Bench.
3. The appellant was established under Section 9 of the Madhya Pradesh
Niji Vishwavidyalaya (Sthapana Avam Sanchalan) Adhiniyam, 2007 (for short,
‘the Act’) as amended by the Madhya Pradesh Niji Vishwavidyalaya (Sthapana
Avam Sanchalan) Sanshodhan Adhiniyam, 2011. In terms of Section 9(2) of
the Act, the appellant is deemed to have been incorporated with effect from
4.5.2011 i.e. the date on which the Amendment Act was published in the
official gazette.
4. After its establishment and incorporation, the appellant framed the
First Statutes under Section 26 and the First Ordinances under Section 28
of the Act and submitted the same to the Madhya Pradesh Private University
Regulatory Commission (for short, ‘the Commission’), which was established
by the State Government under Section 36(1) of the Act for the purpose of
providing a regulatory mechanism at the State level and for working as an
interface between the State Government and the central regulatory bodies
for the purpose of ensuring appropriate standards of teaching, examination,
research, extension programme, protection of interest of students and
reasonable service conditions of the employees. The First Ordinances of
the appellant were approved by the Commission and were forwarded to the
State Government vide letter dated 23.9.2011 for publication in the
official gazette. The First Statutes framed by the appellant were
provisionally approved by the Commission and sent to the State Government
vide letter dated 24.10.2011 with a request that the same may be got
examined from the Law Department and made available to the Commission with
the amendment, if any. In that letter it was also mentioned that if no
amendment was proposed by the State Government then the First Statutes be
published in the official gazette as per the requirement of Section 35 of
the Act. The English translation of that letter, which has been filed with
the special leave petition as Annexure P-6, is reproduced below:
“MADHYA PRADESH PRIVATE UNIVERSITY
REGULATORY COMMISSION
Bhopal (M.P.)
No. /M.P.P.U.R.Commission, Bhopal Date:24/10/2011
To
The Chief Secretary
State of M.P.
Higher Education Department
Ministry, Bhopal.
Sub: Publication of First Statutes presented by the Peoples
University in the Gazette.
In compliance of the provisions of Para 26(2) of M.P. Private
University (Establishment & Control) Act, 2007, the First Statutes
recommended by the Administrative Body of Peoples University and
provisionally recommended by the Commission and its two attested
copies are hereby attached and sent.
In this regard it is kindly requested that there is no legal
advisor available in the Commission. Therefore, it would be proper
to request from the legal department to carry out examination of
these statutes and make available to the Commission through the
State Government along with the amendment which has been presented,
so that these amendments may be presented in the meeting of the
commission and after receiving the recommendation of the commission
these shall be sent for publication in the Gazette. If no
amendment/suggestion is recommended by the legal department, then
kindly oblige to get it published in the gazette under Section 35 of
the Act considering it recommended by the Commission in final form.
(Recommended by the Chairman)
Encl: Statutes in two copies
Sd/-illegible
(Dr. P.K. Khare)
Secretary
Endorsement No.556/M.P.P.U.R.Commission, Bhopal
Copy to: Dated 24/10/2011
Registrar Peoples University Bhanpur, Peoples Campus, Bhopal for
necessary information.
Sd/-illegible
(Dr. P.K. Khare)
Secretary”
(Note: The word ‘recommendation/recommended’ used in letters dated
23.9.2011 and 24.10.2011 does not represent the correct translation
of the original version in Hindi in which the word ‘anumodan’ has
been used and the English translation of that word is ‘approval’.
Likewise, the word ‘Para’ used before figure 26(2) is not correct.
The correct word should have been ‘Section’)
5. After 1½ months, the Registrar of the appellant sent letter dated
7.12.2011 to the Principal Secretary, Government of Madhya Pradesh, Higher
Education Department for publication of the First Statutes and the First
Ordinances. After another 17 days, the appellant filed Writ Petition
No.22021/2011 and prayed for issue of a mandamus to respondent No.1 to get
the First Statutes and the First Ordinances published in the official
gazette. (The date mentioned in the copy of the writ petition annexed with
the special leave petition as Annexure P-8 is 24.12.2011.)
6. The learned Single Judge before whom the writ petition was listed on
29.12.2011 ordered notice to the respondents for 4.1.2012. In the written
statement filed on behalf of respondent No.2 on 2.1.2012, reference was
made to Sections 7, 8, 9, 26, 28 and 35 of the Act and it was averred that
the appellant had made admissions in complete violation of the undertaking
given in terms of Section 7 (iv) of the Act despite the fact that it was
repeatedly warned vide communications dated 26.3.2011, 30.7.2011, 8.9.2011,
9.11.2011 and 30.11.2011 not to do so. However, the Commission admitted
that it had sent letters dated 23.9.2011 and 24.10.2011 to the State
Government in the matter of publication of the First Ordinances and the
First Statutes.
7. The writ petition was listed for admission hearing on 6.1.2012, i.e.,
two days after the date specified in the notice. On that day, the counsel
appearing for respondent No.1 sought time to seek instructions. The
learned Single Judge did not accept his request and finally disposed of the
writ petition by recording the following order:
“Heard on admission.
This Court vide order dated 29.12.2011 directed issuance of Hamdast
notices to the respondents, returnable within a week and further
directed listing of this petition for final disposal on 04.01.2012.
Learned Counsel for the petitioner has filed memo of acknowledgement
indicating that the Hamdast notices were served on the respondents
well within time. i.e. on 30.12.2011. The respondent No. 2 has already
filed a return.
By this petition the petitioner has made a prayer to direct respondent
no. 1 to get the First Statute and First Ordinance of the petitioner
University, duly approved by the respondent No. 2 published in the
official Gazette within 7 days. It is contended that as per the
provisions of Madhya Pradesh Niji Vishwa Vidyalaya (Sthapana Avam.
Sanchalan) Adhiniyam, 2007 (herein after referred to as ‘Act’), the
powers are given to the respondent No. 2 to make First Statute and
First Ordinance, which are required to be approved by the respondent
No. 2 and the same will come into force only after publication in the
official Gazette of Madhya Pradesh as per the provisions of Section 35
of the Act. It is contended that though the First Statute and First
Ordinance are prepared, duly approved by the respondent No. 2 but the
same are not published in the Gazette on account of which the same are
not coming into force.
The respondent No.2 by filing the return has contended that the said
exercise is completed and the matter has been placed before the
respondent No.l for publication of the First Statute and First
Ordinance. However, the respondent No.l has not published the same in
the official Gazette on account of which the same are not yet in
force.
Learned Deputy Advocate General has sought time to seek instructions.
It is seen that the notices were issued in this petition on 29.11.2011
and specifically it was directed that the instructions be obtained and
matter be listed on 04.01.2012. No reply or return is filed by the
respondent No.l opposing the petition.
There is no prescription of any provision under this Act that the
State Government may take any objection with respect to making of any
First Statute or First Ordinance. Since the State has no role to play
in such a matter, it is directed that the First Statute and First
Ordnance so approved by the respondent No. 2 be published in the
official Gazette within 10 days from the date of receipt of certified
copy of this order passed today.”
8. In the meanwhile, the First Statutes and the First Ordinances framed
by the appellant were examined by the State Government and a decision was
taken on 16.12.2011 at the level of the Principal Secretary, Medical
Department that the Commission be asked to inform the appellant that
admission in Medical, Dental and other courses relating to Health Sciences
should be made as per the directions issued by the Medical Education
Department of the State Government, Medical Council of India / Dental
Council of India (MCI / DCI) and other regulatory bodies and the lists of
admitted students be made available to those bodies, the Director, Medical
Education, Government of Madhya Pradesh and the Committee constituted under
M.P. Niji Vyavasayik Shikshan Sansthan (Pravesh Ka Viniyaman Avam Shulk Ka
Nirdharan) Adhiniyam, 2007. This decision was approved by the concerned
Minister and the Chief Minister in the third week of January, 2012. (These
facts are borne out from the files produced by Shri B.S. Banthia, learned
counsel representing the State of M.P.) Thereafter, the Secretary of the
Commission sent two letters dated 28.1.2012 to the Vice Chancellor of the
appellant and conveyed the instructions received from the State Government.
By two other letters dated 6.2.2012, the Commission approved the
amendments suggested by the State Government in Para 3(b) of Statute No.18
that admission in Medical, Dental and other courses relating to Health
Sciences shall be made according to the directions issued by the Medical
Education Department of the State Government and the regulatory bodies,
like, MCI/DCI and the lists of admitted students be forwarded to the
concerned authorities.
9. On receipt of the aforesaid communications, the appellant filed MCC
No.180/2012 in Writ Petition No.22021/2011 and prayed that a direction be
issued to the respondents to implement order dated 6.1.2012. The learned
Single Judge issued notice on 8.2.2012 and fixed the case for 17.2.2012.
The appellant also filed Writ Petition No. 2386/2012 for quashing the
directions contained in letters dated 6.2.2012. The High Court entertained
the writ petition on 10.2.2012, issued notice to the respondents and stayed
the operation of communications dated 6.2.2012.
10. At that stage, respondent No.1 filed a petition for review of order
dated 6.1.2012 on the following grounds:
i) That the approval granted by the Commission to the First
Statutes and the First Ordinances framed by the appellant was
provisional and the High Court committed an error by issuing a
mandamus for publication thereof within 10 days.
ii) That the High Court committed an error by assuming that the
State Government does not have any role in the matter of framing
of the First Statutes and the First Ordinances ignoring that
under Section 36(11) of the Act the State Government has the
power to issue instructions to the Commission on policy matters
and such instructions are binding on the Commission.
11. The learned Single Judge took cognizance of the provisions contained
in Section 36 of the Act and the documents filed with Writ Petition
No.2386/2012 and proceeded to observe:
“6. Now it is to be seen whether the Regulatory Commission has
any power to ask for any guidance from the State Government or to
act in any manner so as to seek approval from the State
Government before granting approval of the first Statutes or
first Ordinances. Section 36 in Chapter-IV of the Act deals with
the constitution of the Regulatory Commission and the opening
sentence of the said Section in sub-section (1) is that the
Regulatory Commission shall be established by the State
Government for the purpose of providing a regulatory mechanism at
the State level and for working as an interface between the State
Government and the central regulatory bodies for the purpose of
ensuring appropriate standards of teaching, examination,
research, extension programme, protection of interest of the
students and reasonable service conditions of the employees. The
Regulatory Commission is made to function under the general
control of the Visitor, i.e. the Governor of the State. Now what
is the meaning of word ‘interface’ and whether could it be said
that the Regulatory Commission is nothing but an agent of the
State Government to act in between the State Government and the
central regulatory bodies for the aforesaid purpose. The
literary meaning of ‘interface’ as given in Oxford Advanced
Learner’s Dictionary, is a device or connection or program that
joins one device or system to another. The other more
appropriate meaning is that the point where subjects, systems
etc. meet and affect each other. Thus, the Regulatory Commission
set up under the Act has to be treated as a bridge in between the
State Government and the other central regulatory bodies for the
purpose of ensuring appropriate procedure of teaching etc. as
given in sub-section (1) of Section 36 of the Act. Naturally if
such interface is required to get something examined, it has
every right to refer the matter to the higher authorities of the
State.
7. In the case in hand though nothing has been placed on
record in the review petition but in response to the connected
writ petition, documents have been filed and it has been pointed
out that the Regulatory Commission was of the view that the first
Statutes made by the respondent No.1 was required to be referred
to the Law Department of the Government of Madhya Pradesh for
seeking approval whether such first Statutes were in conformity
with different laws made in respect of establishing a higher
teaching institutions or not. The matter was thereafter returned
by the Law Department saying that it was required to give legal
opinion only on the legal issues and not in such a case where the
statutes were required to be made. Since the medical education
is also one of the part of studies and the department of the
private university, the matter was thereafter referred to the
medical education department of Government of Madhya Pradesh and
it was decided that certain changes were required to be made with
respect to the admission of the students in the private
university. This being so, after the matter travelled up to the
Chief Minister of the State, the subsequent orders were passed,
of course after the final disposal of the writ petition filed by
respondent No.1 on 06.01.2012.”
The learned Single Judge also referred to Rule 2(7)(e) of the High Court of
Madhya Pradesh Rules, 2008 (for short, ‘the Rules’) and concluded that the
writ petition filed by the appellant for issue of a mandamus to respondent
No.1 to publish the First Statutes and the First Ordinances, some
provisions of which relate to admission of the students, could be heard
only by the Division Bench and not by the Single Judge and an error
apparent on the face of the record was committed in deciding the matter on
6.1.2012. The learned Single Judge, accordingly, allowed the review
petition and directed that the matter be placed before the Chief Justice
for issue of necessary instruction for listing of the matter before the
Division Bench.
12. Dr. Rajeev Dhawan, learned senior counsel for the appellant, referred
to Sections 26, 28, 35 and 36 of the Act and argued that once the First
Statutes and the First Ordinances were approved by the Commission, the
State Government had no role in the matter and it was bound to publish the
same in the official gazette in terms of Section 35. Learned senior
counsel submitted that the direction given by the learned Single Judge vide
order dated 6.1.2012 was legally correct and there was no occasion for him
to recall that order at the instance of respondent No.1. Dr. Dhawan argued
that the learned Single Judge committed a jurisdictional error by
entertaining and allowing the review petition by treating the same as a
petition for re-hearing the matter. He submitted that the learned Single
Judge could not have reviewed order dated 6.1.2012 by assuming that he had
committed an error in appreciating the true scope of Section 36 of the Act.
He further submitted that instead of complying with the direction contained
in order dated 6.1.2012, respondent No.1 contemptuously issued directions
in the matter of admissions of the students and suggested amendment in the
First Statutes and, on this ground alone, the learned Single Judge should
have declined to entertain the review petition. Learned senior counsel
then argued that even though some provisions of the First Statutes and the
First Ordinances relate to admission of the students, the writ petition
filed for issue of a mandamus to respondent No.1 to publish the same in the
official gazette was not required to be placed before the Division Bench of
the High Court and the learned Single Judge did not commit any error by
entertaining and allowing the same. Dr. Dhawan submitted that even if the
writ petition was required to be laid before the Division Bench of the High
Court, hearing thereof by the learned Single Judge cannot be faulted
because counsel appearing for the respondents did not point out that as per
Rule 2 (7)(e) of the Rules, the writ petition can be heard only by the
Division Bench.
13. Shri Ravi Shankar Prasad, learned senior counsel and Shri B.S.
Banthia, learned counsel appearing for the State of Madhya Pradesh
supported the impugned order and argued that the learned Single Judge did
not commit any error by reviewing order dated 6.1.2012 because the same had
been passed without giving reasonable opportunity to respondent No.1 to
show why the First Statutes and the First Ordinances framed by the
appellant were not published. Shri Prasad referred to letter dated
24.10.2011 sent by the Secretary of the Commission to the Chief Secretary
of the State to show that the Commission had provisionally approved the
First Statutes and argued that the learned Single Judge committed serious
error by directing publication thereof by assuming that the Commission had
granted unconditional approval and this, by itself, constituted a valid
ground for review of order dated 6.1.2012. Learned senior counsel further
argued that under Section 36(11) of the Act, the State Government has the
power to issue directions on policy matters, which are binding on the
Commission and the former did not commit any illegality by requiring the
latter to inform the appellant that the admissions in medical courses are
required to be made strictly in consonance with guidelines issued by the
Medical Education Department of the State, MCI/DCI and other regulatory
bodies and to submit the lists of admitted students to the concerned
authorities and bodies. Shri Ravi Shankar Prasad emphasized that such
directions were sine qua non for ensuring that standard of medical
education is not compromised in any manner. Shri Banthia referred to the
averments contained in the writ petition to show that even though the
prayer made by the appellant was for issue of a mandamus to respondent No.1
to publish the First Statutes and the First Ordinances, substance of the
relief claimed by the appellant related to the policy of admission and
admission of the students and argued that in view of Rule 2(7)(e) of the
Rules, the Registry of the High Court should not have listed the matter
before the Singhe Bench and the learned Single Judge should not have
decided the writ petition.
14. Learned counsel for the Commission also supported the impugned order
and argued that the learned Single Judge did not commit any error by
recalling order dated 6.1.2012 because the First Statutes framed by the
appellant had not been finally approved by the Commission and, in the
absence of such an approval, a mandamus could not have been issued for
publication thereof in the official gazette. Learned counsel submitted
that the appellant was, and is, not entitled to any relief under Article
226 of the Constitution of India because it had made admissions in brazen
violation of the undertaking given as per the requirement of Section
7(iv)(m) of the Act.
15. We have considered the respective arguments/submissions. In our view,
even though the learned Single Judge may not have been justified in
recalling order dated 6.1.2012 merely because he, on a detailed analysis of
Section 36 of the Act felt that the Commission acts as a bridge in between
the State Government and the Central Regulatory bodies and the amendments
suggested by the State Government in the First Statutes were meant to
achieve the objects set out in Section 36(1), the impugned order does not
call for interference under Article 136 of the Constitution because the
procedure adopted by the learned Single Judge in deciding the writ petition
was contrary to the basics of natural justice. The request made by the
counsel appearing for respondent No.1 for grant of time to seek
instructions ought not to have been rejected at the threshold. It is quite
possible that the counsel representing the appellant may have pressed for
early disposal of the writ petition but the prayer made therein was not
such which could justify denial of opportunity to respondent No.1 to file
an affidavit to controvert the averments contained in the writ petition and
to show cause why a mandamus should not be issued for publication of the
First Statutes and the First Ordinances. We have no doubt that if
respondent No.1 had been given a few days’ time, an affidavit of the
competent officer could have been filed to show that on receipt of the
letters sent by the Secretary of the Commission, the matter was examined by
the Medical and Health Department as well as the Law Department and a
decision was taken to suggest amendment in the First Ordinances and the
First Statutes so that admissions in Medical, Dental and other courses
relating to health sciences are made in accordance with the guidelines
framed by the Medical Education Department of the State Government and the
regulatory bodies like the MCI and the DCI. Respondent No.1 could have
also pleaded that the Commission’s approval of the First Statutes was not
final and the matter was referred to the State Government to suggest
amendment, if any, which could be considered by the Commission. It seems
to us that the learned Single Judge did not get time to go through the
contents of letter dated 24.10.2011 sent by the Secretary of the Commission
to the Chief Secretary of the State, else he would not have disposed of the
writ petition and issued a mandamus for publication of the First Statutes
of the appellant by erroneously assuming that the Commission had finally
approved the First Statutes.
16. We also agree with the learned counsel for respondent No.1 that the
appellant’s writ petition should have been heard by the Division Bench of
the High Court and the learned Single Judge committed a jurisdictional
error by entertaining and allowing the same. In the writ petition filed by
it, the appellant repeatedly emphasized the need for early publication of
the First Statutes and the First Ordinances and made a grievance that delay
in that regard was affecting the admission process in various courses. This
is evident from the contents of paragraph Nos. 4, 5.2, 5.4 to 5.9, 5.11,
6.3, 6.5, 6.8, 6.10, 6.14 and 6.15 of Writ Petition No.22021/2011. The
First Statutes and the First Ordinances, of which publication was sought,
also deal with the policy of admission including the regulation of
reservation of seats for different categories and admission of students and
their enrolment. This was as per the requirement of Section 26(1)(i) and
Section 28(1)(a) of the Act. Therefore, in terms of Rule 2(7)(e) of the
Rules the writ petition should have been listed before the Division Bench
of the High Court. The error committed by the Registry of the High Court in
listing the matter before the learned Single Judge was compounded by him by
entertaining and allowing the same. Therefore, there was every
justification for recalling order dated 6.1.2012 so that the matter could
be heard by the Division Bench.
17. In the result, the appeal is dismissed. Now, Writ Petition
No.22021/2011 be listed before the Division Bench of the High Court and be
heard along with Writ Petition No.2386/2012. We request the concerned Bench
of the High Court to make an endeavour to dispose of both the writ
petitions as early as possible but latest within a period of three months
from the date of receipt/production of copy of this order. It is made
clear that the parties shall be free to raise all legally permissible
contentions and the High Court shall decide the writ petitions without
being influenced by the observations made by the learned Single Judge in
the impugned order.
…...……..….………………….…J.
[G.S. Singhvi]
New Delhi, …………..….………………….…J.
August 21, 2012. [Sudhansu Jyoti
Mukhopadhaya]
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