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Gujarat High Court
Judgename :M.S.Parikh
Madresa Moinul Islam Kelavani Mandal - Appellant
Versus
STATE - Respondent
S.C.A.9504 of 1992
Decided On : 08/10/1993
Taking then the grant of permission by the State Government by virtue of provisions contained in sub-sections (5) and (6), the same can be divided into two contingencies: (1) that the Executive Council with or without the concurrence of Academic Council recommends grant of affiliation, and (2) where recommendation of grant is not made that is to say opinion for grant of affiliation to the applicants proposed college is in the negative. Now in both the aforesaid contingencies sub- sections (5) and (6) speak of power of the State Government to grant the application without stating grounds or reasons for such grant. However, even for granting permission for affiliation in either of the cases of contingencies noted above, the State Government has to apply its mind and the provision is not silent about the application of mind by the State Government while it speaks for making of such inquiry as may appear to the Government to be necessary. It is obvious that the inquiry is to be made only when the mind is applied to the papers alongwith opinion/s of the Executive Council and the Academic Council. It has to be seen whether granting of permission for affiliation to the respondent no.3 by the State Government is upon application of mind. However, on a plain reading of the aforesaid two provisions what the State Government is required to do is to pass an order of granting permission for affiliation and passing of such an order is to be after making such inquiry as might have appeared to it necessary. The provisions do not require grounds or reasons to be stated in the order of grant of affiliation.
[Para 8]
Submission that if the authorities of the University have not recommended grant of affiliation, reasons are required to be stated by the Government. This submission, if accepted, would run counter to the provision of sub-sec.(5) read with sub-sec.(6) of Sec. 35 of the Act. When the legislature has provided for in clear words different approaches for grant and refusal of permission the acceptance of submission would lead to rewriting of the said provisions, which cannot be done. It has, however, to be found that where the Government differs from the authorities of the Universities in the matter of grant of permission for affiliation, in that case where the University authorities do not recommend affiliation and the Government opts to grant permission for affiliation, the Government has to make some inquiry depending upon the facts and circumstances of the concerned applicants and upon material available or material made available in respect of the concerned applicants.
[Para 8]
( 1 ) THERE is on the one side the North Gujarat University and on the other side the Government. There is on one side Madresha Moinul Islam Kelvani Mandal and 389 on the other side Vishvamangalam Shardagram Kelvani Mandal. Sandwiched in between are the girl students whose prospects of getting college education are delayed on account of the rectangular rift amongst the aforesaid four parties. The prayers relate to grant of affiliation for Manila Colleges in Himatnagar and surrounding area.
( 2 ) AT the out-set it must be staled that all the learned advocates have more or less submitted that the ultimate fate of all these petitions would rest upon the interpretation of section 35 (5) of the North Gujarat University Act, 1986.
( 3 ) [ ]
( 4 ) NOW, therefore, the provisions of the Act, which have been referred to by the learned advocates for the rival parties may be examined. Section 4 deals with the powers of the university, which are subject to such conditions as may be prescribed by and under the provisions of the Act. Therefore, although there is no power of granting permission for affiliation in any of the clauses (1) to (43) thereof the powers are subject to such conditions as may be prescribed by or under the provisions of the Act. It is obvious that the powers of the University under clauses (1) to (43) of section 4 would be subject to section 35 of the Act, which deals with affiliation. As per definition clause in section 2 (1) "affiliated college" means a college affiliated under section 5 or 35 of the Act, whereas "recognised institution" would mean an institution recognised u/s. 37 of the Act vide clause (9) of section 2 of the Act. Section 11 deals with the powers of the vice-Chancellor. Chapter IV containing sections 15 to 29 lays down the prescribed authorities of the University and their respective powers and duties. Sections 19 and 20 deal with the executive council and its powers, whereas sections 21 and 22 deal with academic council and its powers and duties. Accordingly clause (40) of section 20 dealing with the powers and duties of the executive council prescribes as under: (XI) to submit to the State Government proposals for conferment of autonomy on any affiliated college or a recognised institution or a University Department or a University college entitling it to privileges in the matters of admission of students, prescribing the courses of study, the holding and conduct of examinations and power to make necessary rules for the purpose; clause (41) deals with the power of the executive council to recommend to the State government withdrawal of autonomy so conferred. Similarly, clause (12) of section 21 deals with the powers of academic council and provides for the academic council to recommend to the executive council recognition of college or affiliation of any institution. Chapter VI deals with Affiliation, Recognition and Approval inter-alia of colleges and institutions. Section 35 (1) therein reads as under:35. Affiliation - (1) A college applying for an affiliation to the university shall send a letter of application to the Registrar, not later than 31st March of the year preceding the year in which the college is proposed to be started: provided that, on the recommendation of the Vice-Chancellor, the Executive council may, if it is satisfied that there are special reasons to do so, after recording such reasons, entertain a letter of application sent to the Registrar after 31st March.
( 5 ) NOW in so far as the petitioner as also the respondent No. 3 are concerned, they both submitted their applications on or before 31st March of the year preceding the year in which they proposed to start college. The respondent No. 3 application was prior to 31st march, 1991 for the proposed college to be commenced from 1992 even if 1990 application is not taken into consideration. The petitioners application was made on 31. 3. 1992 for the academic year commencing from June 1993. Therefore, in so f
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