High Court Punjab-Haryana High Court

Dr.Balbir Chand Josan vs Chandigarh Administration on 14 July, 2011

Punjab-Haryana High Court
Dr.Balbir Chand Josan vs Chandigarh Administration on 14 July, 2011
C.W.P.No.16917 of 2010                               -1-


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
               CHANDIGARH

                                   Date of Decision:- 14.07.2011

C.W.P.No.11022 of 2010

Dr.Balbir Chand Josan                                      ....Petitioner(s)

                 vs.

Chandigarh Administration, U.T., Chandigarh and others     ....Respondent(s)

C.W.P.No.16917 of 2010

Dr.Balbir Chand Josan                                      ....Petitioner(s)

                 vs.

Chandigarh Administration, U.T., Chandigarh and others     ....Respondent(s)

C.W.P.No.17347 of 2010

The Governing Body, DAV College, Sector 10, Chandigarh ....Petitioner(s)

                 vs.

Chandigarh Administration and others                       ....Respondent(s)

           ***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH

                 ***

Present:-   Mr.Akshay Bhan, Advocate,
            for the petitioner in CWP Nos.16917 & 11022 of 2010
            and for respondent No.2 in CWP No.17347 of 2010.

            Mr.Rajiv Atma Ram, Sr.Advocate with
            Mr.Saurabh Arora, Advocate,
            for the petitioner in CWP No.17347 of 2010 and
            for respondent No.3 in C.W.P.Nos.16917 of 2010 and
            for respondents No.3 and 4 in C.W.P.No.11022 of 2010.

            Mr.Amar Vivek, Standing Counsel for
            respondent No.1.

            Mr.Anupam Gupta, Advocate,
            for respondent No.2 in CWP Nos.11022 and 16917 of 2010
            and for respondent No.3 in CWP No.17347 of 2010.
 C.W.P.No.16917 of 2010                                   -2-


AUGUSTINE GEORGE MASIH, J.

This order would cover CWP Nos.11022, 16917 and 17347 of

2010.

Facts in these cases are inter-twined and, therefore, are narrated

in a sequence as the events have unfurled leading to the filing of these three

writ petitions out of which the first two writ petitions i.e. CWP Nos.11022

and 16917 of 2010 have been preferred by Dr.Balbir Chand Josan,

Principal, DAV College, Sector 10, Chandigarh and CWP No.17347 of

2010 filed by the Governing Body of the DAV College Sector 10,

Chandigarh (hereinafter referred to as the Governing Body).

Dr.Josan was appointed as the Principal of the DAV College

Sector 10, Chandigarh. Vide letter dated 1.4.2008, the decision was

communicated that the petitioner had been selected as Principal, DAV

College, Sector 10, Chandigarh and was directed to join as such. In

pursuance thereto, the petitioner joined on 2.4.2008. Subsequently,

appointment letter dated 1.7.2008 was issued by the Governing Body. The

petitioner continued to serve as Principal till resolution dated 19.5.2010 was

passed by the Governing Body ordering his transfer. This decision of the

Governing Body was challenged by the petitioner through CWP No.11022

of 2010 on various grounds. On 18.6.2010, this Court while issuing notice

of motion stayed the operation of the impugned resolution dated 19.5.2010.

Replies stand filed by the respondents. The interim order continues to

operate.

During the pendency of the writ petition, the Governing Body

in its meeting held on 14.9.2010 passed a resolution placing the petitioner

under suspension with immediate effect as disciplinary proceedings were
C.W.P.No.16917 of 2010 -3-

contemplated against him. Order dated 15.9.2010 was served upon the

petitioner as per the decision. Dr.Josan moved an application dated

16.9.2010 before the Registrar, Panjab University, Chandigarh requesting

for staying the order of suspension passed by the Governing Body on the

ground that the Governing Body has not sent the suspension order to the

Registrar along with the charge-sheet as required under Regulation 9.2 of

Chapter VIII (E) of the Panjab University Calendar Volume-I (2007) and

that he has not been supplied with the copy of the charge-sheet by the

Governing Body till date and also that he had filed CWP No.11022 of 2010

wherein his transfer had been stayed and the matter is sub-judice before

this Court. Taking these facts into consideration, Registrar, exercising

his powers under Regulation 9.2 stayed the order of suspension passed by

the Governing Body till further orders on 16.9.2010 itself. Thereafter, on

17.9.2010, Registrar, kept the order dated 16.9.2010 in abeyance till further

orders in view of Regulation 4.2 of Chapter III and Section 31 (2) (e) of

the Panjab University Act, 1947 (hereinafter referred to as 1947 Act). This

order is challenged by Dr.Josan by filing CWP No.16917 of 2010

wherein this Court vide order dated 22.9.2010, allowed Dr.Josan to

continue to function as Principal of DAV College, Sector 10,

Chandigarh, but shall not take any policy decision with respect to the

functioning of the College. Dr.Josan made a statement before the Court

that he shall not undertake any financial transaction on behalf of the College

and shall allow the existing financial arrangement to continue. This interim

order continues till date.

Challenge to the order dated 17.9.2010 passed by the Registrar,

Panjab University, Chandigarh is based on the ground that this order is a
C.W.P.No.16917 of 2010 -4-

non-speaking order. The Registrar ceases to have an authority under

Regulation 9.2 once an order is passed under this regulation staying the

order of suspension. There is no power of review with the Registrar.

The order dated 16.9.2010 was passed by the Registrar while exercising his

powers under Regulation 9.2 under Chapter VIII (E) of the Panjab

University Calendar Volume-I (2007) which chapter deals with conditions

of service and conduct of teachers in non-government affiliated colleges

whereas Chapter III is regarding appointment and duties of Registrar and

other Administrative Officers and order dated 17.9.2010 has been passed

under Regulation 4.2 of this Chapter III. These two chapters are distinct,

conferring different powers on the Registrar, where the operation and

sphere of the powers in jurisdiction are separate, therefore, the order is

illegal. There is no mis-statement of facts by Dr.Josan which would

call for exercise of power of review which although is not available under

the statute/Regulations but could justify the passing of order dated

17.9.2010.

When CWP No.16917 of 2010 was taken up for hearing by this

Court on 22.9.2010, counsel for the Chandigarh Administration produced a

photocopy of the letter dated 20.9.2010 addressed by the Registrar

(Education) (C) for Education Secretary, Chandigarh Administration,

informing the General Secretary of the Governing Body DAV College,

Sector 10, Chandigarh that the decision dated 15.9.2010 is invalid in view

of condition/para No.3 of the order dated 26.11.1999 passed by the office of

Education Secretary, Chandigarh Administration as the same had taken

without associating the Director, Higher Education, U.T., Chandigarh

(hereinafter referred to as Director).

C.W.P.No.16917 of 2010 -5-

On receipt of the said letter dated 20.9.2010, CWP No.17347 of

2010 was preferred by the Governing Body challenging it on the ground

that condition/para No.3 of the letter dated 26.11.1999 only talks of inviting

the nominee of the Director and the nominee of the Vice Chancellor, Panjab

University, Chandigarh in every meeting of the Governing Body. In case no

invitation is sent, any decision taken by the Governing Body may not be

considered valid by the Director. It has been pleaded that letter dated

10.9.2010 was sent to the Director requesting him to attend the meeting

which was fixed for 14.9.2010. The said letter was duly received by the

Director and vide communication dated 13.9.2010, the Director showed his

inability to attend the meeting due to pre-scheduled official assignments and

stated that at least two weeks’ notice may be given before scheduling the

meeting of the Managing Committee. The nominee of the Vice Chancellor

was also invited for the meeting and he did attend the meeting on 14.9.2010

whereas the Director chose neither to attend the meeting nor to send his

nominee in the meeting nor any request was made for re-scheduling the

meeting. It is further pleaded that as per the provisions of Chapter VIII (A)

of the Panjab University Calendar Volume-I (2007), there is no requirement

of the statute or law for the nominee of the Vice Chancellor or the

nominees of the Director to be members of the Managing

Committee/Governing Body or for calling them for every meeting. The

presence of the Director or his nominee in each Governing Body meeting is

not mandatory and in any case, the nominees are the members of the

Governing Body like any other member with no extra privilege or authority

and the decisions are taken by the majority.

Upon notice of motion issued in this case, reply has been
C.W.P.No.16917 of 2010 -6-

filed by the Director wherein an objection has been raised with regard

to the maintainability of the writ petition by questioning the locus of the

alleged authorized signatory who had instituted the present writ petition. It

has been stated that one Mrs.Madhu Bahl at the behest of an alleged

authority letter dated 23.9.2010 has filed the writ petition in pursuance

to a resolution passed by the Governing Body. The authority letter has been

issued by the General Secretary of the Governing Body who has been

delegated the powers of the Governing Body, who cannot under law further

delegate his powers and thus, is not competent to issue any authority in

favour of Mrs.Madhu Bahl. Further, as per resolution No.5 passed in the

Governing Body Meeting dated 14.9.2010, the Governing Body has

bestowed all its powers upon its President/Secretary till further orders,

which is not permissible or legal, thereby usurping the authority and

powers of the nominees of the Panjab University as well as the Director. It

has been stated that the notice dated 10.9.2010 did not contain such an

agenda whereby the powers of the Governing Body were to be delegated in

a single individual like the President/General Secretary. The letter dated

20.9.2010 has been sought to be supported on the ground that the

notice dated 10.9.2010 only stated that the meeting was called to discuss the

case regarding Balbir Chand Josan, Principal, DAV College, Sector 10,

Chandigarh. As the meeting was an emergent meeting, the Governing Body

could not discuss the issue of disciplinary action, suspension, issuance of

charge-sheet and vesting of powers of the Governing Body in a single

individual without prior agenda and its due circulation to the answering

respondent and to the Panjab University. The decision of the Governing

Body conveyed vide order dated 15.9.2010 which was taken without
C.W.P.No.16917 of 2010 -7-

associating the Director was invalid in view of the express condition/para

No.3 of the letter dated 26.11.1999. The answering respondent thereafter

advised the petitioner to reconvene a meeting of the Governing Body by

giving 15 days due notice. By this action of the Governing Body, the

Director and the Panjab University stand altogether excluded from the

functioning of the Governing Body till further orders as per the decision.

This is contrary to the spirit of the Punjab Grant-In-Aid Rules, 1979

(hereinafter referred to as Grant-in-Aid Rules) On this basis, dismissal of

writ petition has been sought.

During the course of hearing, Mr.Rajiv Atma Ram, learned

Senior Counsel appearing for the Governing Body, DAV College, Sector

10, Chandigarh, states that CWP No.11022 of 2010 has been rendered

infructuous in view of stay granted by this Court of the resolution of the

Governing Body dated 19.5.2010 whereby Dr.Josan was transferred from

DAV College, Sector 10, Chandigarh and also in the light of the fact that

the Governing Body has passed resolution to suspend him with his

headquarters at Chandigarh which decision when conveyed vide order

dated 15.9.2010 stand challenged in CWP No.16917 of 2010 by Dr.Josan,

rendering the order of transfer redundant. This statement of the counsel for

the Governing Body could not be disputed by Mr.Akshay Bhan, learned

counsel for Dr.Josan. Accordingly, the writ petition is required to be

disposed of as having been rendered infructuous.

For deciding CWP No.16917 of 2010 wherein challenge is

to the order dated 17.9.2010 passed by the Registrar, Panjab

University, Chandigarh keeping his earlier order dated 16.9.2010 in

abeyance till further orders, the provisions under which orders dated
C.W.P.No.16917 of 2010 -8-

16.9.2010 i.e. Regulation 9 and 17.9.2010 i.e. Regulation 4.2 have been

passed by the Registrar, Panjab University need to be looked into,

which read as follows:-

“Chapter VIII (E)

CONDITIONS OF SERVICE AND CONDUCT OF

TEACHERS IN NON-GOVERNMENT

AFFILIATED COLLEGES.

                 1. to 8        xxxxx              xxxxx            xxxxx

                 9.1      Subject to     what   is contained in Regulation

                 Nos.10, 11 and 12 the Governing Body of a non-Govt.

College shall be entitled to determine the engagement

of a permanent employee, for a sufficient cause, after

giving him three months’ notice in writing or on

payment of three months’ salary in lieu thereof.

Provided that the Governing Body has the right to

suspend an employee with immediate effect in case of

gross misconduct or moral turpitude. In doing so he

shall be served with a charge-sheet and informed in

writing of the ground on which action is proposed to be

taken.

9.2 A copy of the order of suspension together with a

copy of the charge-sheet shall be sent within a week to

the Registrar who may direct that the teacher shall not be

placed under suspension .

9.3 The period of suspension shall not exceed

three months within which the case must be decided.”

C.W.P.No.16917 of 2010 -9-

“Chapter III

APPOINTMENT AND DUTIES OF REGISTRAR

AND OTHER ADMINISTRATIVE OFFICERS

1 to 4.1 xxxx xxxx xxxx xxxx

4.2 The Registrar shall exercise his powers and

discharge his duties under immediate direction of the

Vice-Chancellor and the Syndicate and the general

control of the Senate.”

A perusal of Regulation 9.1 would indicate that the Governing

Body of a non-government college subject to Regulations 10, 11 and 12 is

entitled to terminate the engagement of a permanent employee for a

sufficient cause. This can be done after giving him three months’

notice in writing or on payment of three months’ salary in lieu thereof.

The Governing Body has further been given the right to suspend an

employee with immediate effect in case an employee commits an act of

gross-misconduct or moral turpitude. When such an action is taken by the

Governing Body, it shall have to serve a charge-sheet on the employee,

informing him in writing the grounds on which action is proposed to be

taken. Regulation 9.2 mandates that a copy of the order of suspension

together with a copy of the charge-sheet shall be sent by the Governing

Body to the Registrar within a week who may direct that the teacher

shall not be placed under suspension. Regulation 9.3 provides the maximum

period of suspension i.e. 3 months’ within which the case must be decided.

A conjoint reading of the above Regulations, so that they blend

harmoniously, when churned, would lead us to a conclusion that the right

of the employer to suspend its employee and that too to its satisfaction
C.W.P.No.16917 of 2010 -10-

stands recognized but with certain qualifications thereto have been

provided. Although the Governing Body has a right to suspend an

employee with immediate effect in case of gross misconduct or moral

turpitude but charge-sheet will have to be served on the employee

informing him in writing the grounds on which the action is proposed to be

taken. The mandate of Regulation 9.1 is not that the charge-sheet has to be

served simultaneously along with the order of suspension as there may be

situations where action cannot brook any delay and require immediate

reaction from the employer. But that does not mean that the management

can, after suspending its employee, take no further steps and sleep over it.

When Regulation 9.1 is read along with Regulation 9.2, the mandate would

be of serving the charge-sheet disclosing therein in writing the grounds on

which the action is proposed to be taken within one week from the date of

passing of the order of suspension by the Governing Body. The period from

the date of passing of order of suspension and the serving of the charge-

sheet cannot exceed one week as the Governing Body under Regulation 9.2

is mandated to send a copy of the suspension order together with a copy of

the charge-sheet to the Registrar within this period. The Registrar under

this Regulation is empowered to direct that the teacher shall not be placed

under suspension. This obviously means that the Registrar would pass such

an order on consideration of the order of suspension and the charge-sheet.

Such an order can also be passed where charge-sheet is not served within

one week of the order of suspension on the employee or where the

Governing Body fails to send a copy of the order of suspension together

with a copy of the charge-sheet to the Registrar within the time stipulated.

This is a safeguard provided under the Regulations to save the employee
C.W.P.No.16917 of 2010 -11-

from harassment and misuse of power of suspension by the Governing Body

to put undue pressure on the employee by keeping him under suspension

without further proceeding in the matter. Although this Regulation does not

specify the charges for which the Registrar would exercise this power but

the Registrar has been given the powers to decide whether the order of

suspension in the given facts and circumstances is justified or not and also

whether a case of gross-misconduct or moral turpitude is made out or not.

However, the Registrar is not restrained from passing such an order when

the order of suspension together with a copy of the charge-sheet is brought

to his notice by the employee concerned which do not fall in these two

categories. If in a case such a situation does not arise i.e. in the absence of

the order of the suspension and/or the charge-sheet, the Registrar cannot

pass an order directing that the teacher shall not be placed under suspension

prior to expiry of one week from the date of passing of the suspension order.

As per Regulation 1 (ii) of Chapter VIII (E) ‘teacher’ includes Principal and,

therefore, it would be applicable to the case in hand. It goes without saying

that while passing final order in exercise of power under Regulation 9.2,

staying the order of suspension, an opportunity of hearing be given to the

management so that the principles of natural justice are duly complied with.

This final order be passed expeditiously and within a reasonable time.

The order dated 16.9.2010 passed by the Registrar, Panjab

University, Chandigarh in the light of the above, is not in accordance with

Regulation 9.2. The order of suspension was passed on 15.9.2010 thus, the

Governing Body had a week’s time to serve a copy of the charge-sheet on

Dr.Josan. The Registrar, thus,could not have taken action on the application

dated 16.9.2010under Regulation 9.2 of Chapter VIII (E) staying the order
C.W.P.No.16917 of 2010 -12-

of suspension passed by the Governing Body. He was required to wait for

the mandatory period of one week for the Governing Body to send the order

of suspension along with the charge-sheet to him. He could have proceeded

to exercise his powers in case the charge-sheet, which had been served on

Dr.Josan on 18.9.2010, had been brought to the notice of the Registrar and

on consideration of the same, if he was satisfied that the allegations against

him in the charge sheet did not disclose commission of an act of gross

misconduct or moral turpitude, order could have been passed by the

Registrar under Regulation 9.2 staying suspension. This could have been

done on 18.9.2010 or thereafter but not before that. It would not be out of

way to mention here that charge sheet was served on Dr.Josan on 18.9.2010

i.e. within one week of his order of suspension dated 15.9.2010.

The contention of the counsel for the petitioner that the

Registrar becomes functus officio once he exercises his powers under

Regulation 9.2 cannot be accepted. Although there is no specific power of

review provided under the Regulations but in the light of the fact that

once the powers have been exercised by the Registrar, he has the power to

recall his order and this power is available to him under Section 21 of the

General Clauses Act, 1897. In any case, the order dated 16.9.2010 was only

an interim order as is apparent from the concluding words “till further

orders” and not a final order as has been sought to be asserted by Dr.Josan.

Probably realizing his mistake, the Registrar, Panjab

University, Chandigarh proceeded to pass an order dated 17.9.2010 but

under Regulation 4.2 Chapter III Section 31 (2) (e) of the 1947 Act,

keeping the earlier order dated 16.9.2010 in abeyance till further orders.

Regulation 4.2, as reproduced above, would show that the Registrar shall
C.W.P.No.16917 of 2010 -13-

exercise his powers or discharge his duties under immediate direction of

the Vice Chancellor and the Syndicate and the general control of the Senate.

The Registrar, Panjab University, Chandigarh has preferred not to file any

reply to the writ petition. There is nothing on the record to suggest that

there was any direction of the Vice Chancellor, the Syndicate or the Senate

in this regard and, therefore, the order dated 17.9.2010 passed by the

Registrar under Regulation 4.2 cannot be said to be in accordance with law.

Although the impugned order dated 17.9.2010 as challenged by

Dr.Josan in this writ petition is not sustainable, however, the order dated

16.9.2010 of the Registrar is also not in accordance with law as has been

held above and, therefore, cannot withstand the scrutiny of the Court.

While deciding a case, the Court is not merely to proceed and decide the

validity of the order under challenge but it has also to see as to whether the

order which would come into operation after setting aside of the subsequent

order is itself sustainable in law or not. By giving sanctity to an illegal

order the Court would be putting a stamp of approval on an illegal order or

act of an authority which would perpetuate injustice and encourage misuse

of power and authority. The power conferred on the High Court under

Article 226 of the Constitution is to advance justice and not to thwart it.

The very purpose of such constitutional powers would be frustrated if an

Act of Court perpetuates injustice by passing an order in a mechanical

manner which would render justice a by-product of error in the name of

deciding a case. Therefore, no relief can be granted to Dr.Josan in this writ

petition.

Mr.Rajiv Atma Ram had raised an objection with regard to

maintainability of this writ petition in the light of Section 7-a of The Punjab
C.W.P.No.16917 of 2010 -14-

Affiliated Colleges (Security of Service of Employees) Act, 1974

(hereinafter referred to as 1974 Act ) and the judgment of the Supreme

Court in T.M.A.Pai Foundation and others vs. State of Karnataka

and others, 2002 (9) SCC 1 on the ground of availability of an alternative

remedy of approaching the Education Tribunal but the same has not

been considered in the light of the fact that the counsel for the parties

stated at the Bar that there was no earlier judgment of this Court on the

Regulations in issue and on this aspect. The provisions required

interpretation to clear doubts which has been attempted and done above.

Now moving on to CWP No.17347 of 2010 filed by the

Governing Body challenging the letter dated 20.9.2010 issued by the

Registrar (Education) (C) for Education Secretary, Chandigarh

Administration informing the Governing Body that its decision dated

15.9.2010 is invalid. Mr.Rajiv Atma Ram submits that the Governing Body

of the College is a multi-member body where Director is having the same

powers as any other member of the Governing Body. He does not dispute

the fact that the Director is a member of the Governing Body but he states

that there is no extraordinary power with the Director to veto the decisions

taken by the Governing Body. There is no provision under the 1947 Act or

the Grant-in-Aid Scheme or the 1974 Act which provides that in case the

Director or his nominee is not present in a meeting, the decision taken

therein would not be valid. Notice of the meeting dated 14.9.2010 was duly

served on the Director vide letter dated 10.9.2010, who only expressed his

inability to attend the meeting due to his pre-occupation. He did not make a

request for deferring/postponement of the meeting. The only ground given

in the letter dated 20.9.2010 (which is under challenge in the writ petition)
C.W.P.No.16917 of 2010 -15-

is that the decision taken in the said meeting held on 14.9.2010 is invalid in

view of condition/para No.3 of the letter dated 26.11.1999. He contends

that as per the provisions of the Panjab University Calendar Volume-I

Chapter VIII (A) which deals with affiliated colleges and the conditions of

affiliation, Regulation 1.2 (a) deals with the Governing Body of a non-

government college wherein neither Director or his nominee nor the Vice

Chancellor or his nominee is mandated to be included in the Governing

Body. However, they have been included in the Governing Body of the

College. Earlier thereto, in the year 2000, as per Regulation 1.2 as

existing then, the nominee of the Vice Chancellor and the Director or his

nominee were sought to be inducted as members of the Governing Body

which was challenged in this Court in Civil Writ Petition No.2367 of 2001

titled as Sanatan Dharam Parcharak Sabha (Regd.) and others vs.

Union of India and others and the challenge was upheld by this Court vide

judgment dated 6.1.2003 and the amendment by inducting the nominees of

the Vice Chancellor and the Director was held to be ultra vires the

regulation making power of the University and violative of the fundamental

rights guaranteed to the College under Article 19 (1)(c) of the Constitution

of India. In any case, he contends that condition No.3 imposed in the letter

dated 26.11.1999 by the Director has been duly complied with as

according to the said condition, the nominee of the Director and the

nominee of the Vice Chancellor are required to be invited to every meeting

of the Governing Body which has been done and which fact has also been

admitted by the respondent in his reply to the writ petition. Letter dated

20.11.2010 is thus, unsustainable.

As regards the objection taken by the Director with regard to
C.W.P.No.16917 of 2010 -16-

the maintainability of the present writ petition through Mrs.Madhu Bahl, he

contends that she had been duly authorized by the Governing Body in its

meeting held on 14.9.2010. Vide the Governing Body Meeting dated

7.1.2011, the minutes of the meeting held on 14.9.2010 stand confirmed

and the decision authorizing Mrs.Madhu Bahl to initiate proceedings in

Court in relation to the matter of suspension of Dr.Josan by the Governing

Body stood rectified as the writ petition was filed on 23.9.2010. Reliance

has been placed on the judgment of the Supreme Court in the case of

Jugraj Singh and another vs. Jaswant Singh and others, AIR 1971 SC

761 as also on Punjab University vs. V.N.Tripathi and another, AIR

2001 SC 3672. He, on this basis prays for setting aside of the impugned

order dated 20.11.2010.

Mr.Amar Vivek, Advocate, appearing for respondent No.1 has

vehemently argued that the decisions taken in the meeting held on

14.9.2010 is illegal as the Director was not associated with the process of

decision making. As per condition 3 of the letter dated 26.11.1999, the

absence of the Director or his nominee in the meeting would result in the

decision taken in the meeting as invalid. He further contends that as per

condition 6 of the said letter, copy of the proceedings of every meeting of

the Governing Body was required to be sent to the Director, which has not

been done by the Governing Body which shows the mala fide on their part

and an effort has been made to overreach the power and authority of the

Director. Relying upon the communication dated 13.9.2010, he contends

that the notice inviting the respondent to the meeting was only served on

him on 13.9.2010 at 3.00 p.m. Thereafter, a request was made for

postponement of the meeting which was neither considered nor accepted
C.W.P.No.16917 of 2010 -17-

and, therefore, the order passed by the Director is in accordance with law.

He contends that the agenda for the meeting dated 14.9.2010 was not

correctly drafted and the Governing Body has exceeded the agenda by

proceeding to decide on the initiation of the departmental proceedings

against Dr.Josan and further by approving the charge-sheet and putting him

under suspension which was not a part of the agenda. Mrs.Madhu Bahl was

also authorized to act on behalf of the Managing Committee/Governing

Body to sign all documents including plaints and to engage advocate(s) in

connection therewith. In this very meeting, the Governing Body delegated

its powers to the President and/or the General Secretary of the Governing

Body which encroaches upon and obliterated the powers of the Director

and that of the nominee of the Vice Chancellor which could not have been

done by the Governing Body as the same was beyond the agenda circulated

for the meeting. He contends that the delegatee cannot further delegate his

powers and Mrs.Madhu Bahl was not authorized to file the present writ

petition and if any authorization was there, it was to the President and/or

General Secretary of the Governing Body. In support of his contention, he

relies upon a Full Bench judgment of this Court in the case of Bhupinder

Singh and others vs. State of Punjab and others, 1985 (3) SLR 643. He,

on this basis, prays for dismissal of the writ petition.

On a candid question put to him by the Court, Mr.Amar Vivek,

has very fairly stated that there are no statutory powers with the Director to

interfere in the management of the private aided non-government colleges

under the 1974 Act or the 1947 Act or under the Grant-in-Aid Scheme for

the private colleges of the State of Punjab which stands adopted by the

Chandigarh Administration.

C.W.P.No.16917 of 2010 -18-

Mr.Anupam Gupta, Advocate, appearing for the Panjab

University has taken me through the various provisions of the 1947 Act

with an intention to highlight the stature and status of the Director in the

scheme of the Act wherein he is a member of the Senate and the Syndicate.

Senate is the supreme authority of which the Director is an ex-officio

member. He has also impressed upon the Court by referring to the role of

the Principal and the importance of the post held by him. His contention

primarily is that the Governing Body cannot, on its whims and fancies,

proceed to take action against the Principal of the College and the Vice

Chancellor of the University with which the college is affiliated as also the

Director, who overlooks the disbursement of grant-in-aid to the colleges,

cannot be mute spectators. Reference has been made by him to various

judgments of the Supreme Court highlighting the jurisdiction of the

University to which the College is affiliated to support his contention that

the University has the power and jurisdiction to interfere in the management

of the college and the affairs of the Governing Body. The judgments of the

Supreme Court referred to are T.M.A.Pai’s case (supra), P.A.Inamdar and

others vs. State of Maharashtra and others, 2005 (6) SCC 537, The

Gandhi Faiz-e-am College, Shahjahanpur vs. University of Agra and

others, AIR 1975 SC 1821, The Ahmedabad St. Xavier College Society

and another vs. State of Gujarat and another, AIR 1974 SC 1389. He,

on this basis, contends that the order passed by the Director, Higher

Education, deserves to be upheld.

Counsel for Dr.Josan has also made his submissions on similar

lines in support of the impugned letter dated 20.9.2010.

Counsel for the Governing Body has responded by submitting
C.W.P.No.16917 of 2010 -19-

that the power of suspension has been provided under Regulation 9 of

Chapter VIII (E) of the University Calendar Volume-I (2007). The Punjab

Affiliated Colleges (Security of Service of Employees) Act, 1974 gives

powers to the Governing Body of the college to place an employee under

suspension as is apparent from Section 2(b) with the heading ‘suspension of

employees’. There is nothing under this provision which would curtail the

powers of the Governing Body to act in this regard. Referring to Section

11 of the 1974 Act, counsel contends that the provisions of this Act have an

over-riding effect over the regulations or Statute of any University. He

contends that the power of suspension having been conferred upon the

Governing Body, it is the satisfaction of the employer which would

determine whether an employee has to be placed under suspension or not.

Reliance has been placed on a Full Bench judgment of this Court in the case

of Guru Nanak University vs. Dr.(Mrs.) Iqbal Kaur Sandhu and

others, AIR 1976 Punjab & Haryana 69. He contends that no objection

was raised by the Director on receipt of the letter inviting him for the

meeting to be held on 14.9.2010 nor had any objection been taken that no

details in the agenda have been given or that the agenda is vague. He

contends that an effort has been made by respondent-Director to support the

impugned letter by supplementing the same by further reasons and grounds

which is impermissible in law. He contends that when an order based on

certain grounds stands passed, its validity is to be judged by the reasons so

mentioned and they cannot be supplemented by fresh reasons in the shape

of affidavits or otherwise. Reliance has been placed on a judgment of the

Supreme Court in the case of Mohinder Singh Gill and another vs.

The Chief Election Commissioner, New Delhi and others, AIR 1978
C.W.P.No.16917 of 2010 -20-

SC 851.

On consideration of the submissions as made by the counsel for

the parties and going through the records of this case, I am of the considered

view that the impugned letter dated 20.9.2010 cannot be sustained.

As per the Panjab University Calendar Volume-I 2007, Chapter

VIII (A) which deals with the affiliated colleges, Regulation 1.2 (a)

thereunder provides for the constitution of the Governing Body of a non-

government college which reads as follows:-

“1.2. (a) The Governing Body of a non-

Government college shall include on its management, in

addition to the Principal who shall be ex-officio member,

two representatives of teachers in case of Governing

Bodies consisting of 15 members and three

representatives of teachers in case of Governing Bodies

consisting of more than 15 members, elected by all

confirmed teachers provided that

(1) two/three teachers so elected shall be of not less

than five years’ standing;

(2) if two/three teachers of five years’ standing are

not available on the staff of the colleges, two/three

teachers who happen to be the senior most on the staff

shall be invited by the Governing Body to serve on it;

and

(3) the term of office of such representatives shall be

the same as for the remaining members of the

Governing Body provided that in no case it shall exceed
C.W.P.No.16917 of 2010 -21-

three years.

Provided further than a casual vacancy shall

be filled by the election within three months of the

vacancy occurring and the members so elected shall

continue for the rest of the term of the outgoing

member.”

A perusal of the above would show that the Director or his

nominee or the nominee of the Vice Chancellor are not mandated to be the

part of the Governing Body. There is no such statutory requirement to have

them on the Governing Body as members.

Counsel for the petitioner has conceded that the Director or his

nominee and the nominee of the Vice Chancellor are members of the

Governing Body but that does not confer any extra privilege/right upon

them. They are members of the Governing Body like any other member. It

is a multi-membered body and the Director or his nominee as also the

nominee of the Vice Chancellor are required to be informed of the

holding of meeting of the Governing Body. It has been stated by the

counsel for the Director that neither under the 1947 Act, nor 1974

Act, or the Grant-in-Aid Scheme, the Director has the power or

jurisdiction to interfere with the working of the Governing Body of the

college. The decisions are taken by the Governing Body as per majority

and the nominee of the Vice Chancellor or the Director or his nominee has

no veto power or power to overrule the decision taken by the Managing

Committee by a majority.

The only reason assigned vide letter dated 20.9.2010 for not

accepting the decision of the Governing Body suspending Dr.Josan
C.W.P.No.16917 of 2010 -22-

is that the condition imposed in para 3 of the letter dated 26.11.1999

vide which approval was granted to the Governing Body stands

violated as the decisions taken in the meeting dated 14.9.2010 were taken

without associating the Director with the process of decision making

i.e. in his absence as he did not attend this meeting. At this stage,

condition No.3 as imposed by the Department of Education while

approving the Governing Body of the College requires reproduction which

reads as follows:-

“3. The nominee of Director Public Instruction

(C) UT, Chandigarh and the nominee of Vice

Chancellor, Punjab University, Chandigarh shall be

invited in every meeting of the Governing Body without

which any decision taken by the Governing Body may

not be considered valid by the Director Public

Instruction (C ) UT, Chandigarh.”

Condition 6 also may be reproduced herein as this is one of the

additional grounds which have been pressed into service by the counsel for

respondent No.1-Director which reads as follows:-

“6. A copy of proceedings of every meeting of

Governing Body shall be sent to the Director Public

Instructions (C) UT, Chd. for his information.”

A perusal of condition No.3 would leave no manner of doubt

that what is mandated therein is that the nominee of the Director and the

nominee of the Vice Chancellor shall be invited in every meeting of the

Governing Body. Upon failure to do so, any decision taken by the

Governing Body may not be considered valid by the Director. Here again, it
C.W.P.No.16917 of 2010 -23-

is to be noted that not all the decisions which are taken by the Governing

Body without inviting the nominees is/are to be invalid but only that/those

which the Director considers to be invalid. Further, Condition No.3 does

not speak that if the nominees are not present in the meeting it would be an

illegal one but what is required is an invitation to the nominees in every

meeting of the Governing Body. In case the nominees fail to attend the

meeting or remain absent that would not give discretion to the Director to

declare a decision invalid merely because he/they did not attend the

meeting of the Governing Body. If the contention of the counsel for the

Director is accepted, the nominees would virtually stall and hijack the

Management of the College leaving the Governing Body at the mercy of

these nominees. If one or both the nominees choose to abstain from the

meeting, no decision would be final and the Director can annul any decision

of the Governing Body. This would be against the principles on the basis of

which the amendment made in the University Calendar in 2000 was

quashed by this Court in CWP No.2367 of 2001 in Sanatan Dharam

Parcharak Sabha (Regd.) case (supra) decided on 6.1.2003, which cannot

be allowed. The exercise of powers by the Director while communicating

letter dated 20.9.2010 is usurping and abrogating to him all such powers

which are not vested in him by law. It can by no stretch of interpretation be

led to conclude that the Director was not associated with the decision taken

by the Governing Body of the College in its meeting held on 14.9.2010

which was conveyed to him vide order dated 15.9.2010 by the

Governing Body. That apart, it is not in dispute that the Director was

invited to the meeting of the Governing Body to be held on 14.9.2010.

This is a naked abuse of power and misuse of Authority by the Director.
C.W.P.No.16917 of 2010 -24-

What had failed through Amendment of Regulation 1.2 in the University

Calendar in the year 2000, the Director has attempted to enforce through his

executive fiat. In absence of any power under any statute which could

invalidate any decision taken by the Governing Body or to interfere with the

management of the college, except by participating in the decision making

process by attending the meetings of the Governing Body, the letter under

challenge leaves no option to this Court but to hold that it is without any

jurisdiction.

The additional grounds which have now been taken to support

the letter dated 20.9.2010 also do not cut much ice. One of the grounds

which has been pressed into service is that the agenda for the meeting dated

14.9.2010 was vague and that postponement of the meeting was requested

by the Director. To test this ground, reference needs to be made to the

letter dated 13.9.2010 written by the Director to the General Secretary of the

Governing Body in response to the invitation to attend the meeting fixed for

14.9.2010. The same reads as follows:-

“Sub: Meeting of Governing Body of DAV
College.

Reference your notice no.17637 dated
10.9.2010 on the subject noted above which has been
received at 3.00 p.m. on 13.9.2010.

Due to pre-scheduled official assignments, I
am not in position to attend the above said meeting. It is
further intimated that at least two weeks notice may be
given before scheduling the meeting of Managing
Committee.

Sd/-

Director Higher Education Deptt. of Education,
Chandigarh Administration.”

C.W.P.No.16917 of 2010 -25-

A perusal of the above would indicate that what was

communicated was that the Director was unable to attend the meeting due

to his pre-scheduled official assignments and a further request was made

that at least two weeks’ notice may be given before scheduling the meeting

of the Managing Committee. No question was asked about the agenda

or its vagueness nor was there any request for postponement of the

meeting. The ground which has now been urged is an afterthought

and without any basis as the same is not forthcoming from the documents

on record.

As regards the contention that the agenda did not spell out the

disciplinary action to be taken against Dr.Josan and further the

authorization to file court cases is concerned, suffice it to say that as per the

letter dated 10.9.2010 which was an invitation to the Director to attend the

meeting on 14.9.2010, it clearly spells out that the meeting was being

convened to discuss the case regarding “Dr.Josan, Principal, DAV College,

Chandigarh”. This obviously meant taking appropriate decision on the said

agenda item as required as per the discussion. A perusal of the minutes of

the meeting dated 14.9.2010 (duly attested photocopy of which has been

produced in Court), would show that the decisions vide Resolutions 1 to 4

taken therein were directly connected with the agenda. Resolution No.1

pertains to placing Dr.Josan under suspension with immediate effect.

Resolution No.2 related to the approval of article of charges and the

decision to serve them upon Dr.Josan. Resolution No.3 was that Dr.Josan

be directed to hand over charge to Sh.Shashi Kumar Gupta, the next senior-

most Professor of the College with immediate effect. Resolution No.4 dealt

with authorization of Mrs. Madhu Bahl to file caveat in this Court on behalf
C.W.P.No.16917 of 2010 -26-

of the Governing Body/Managing Committee on suspension of Dr.Josan.

She was further authorized to assign all documents including plaint(s), suit

(s), replication(s), rejoinder(s), affidavit(s) as well as to engage advocate(s)

in connection therewith. Resolution No.5 was general in nature delegating

the powers to the Governing Body/Managing Committee to the President

and/or General Secretary relating to the various matters dealing with the

employees of the college. It cannot, thus, be said that the decision taken in

the meeting dated 14.9.2010 was not related to or beyond the agenda

circulated for the meeting. In any case, this was not a ground which was

taken for holding the order of suspension of Dr.Josan dated 15.9.2010 as

invalid in the impugned letter dated 20.9.2010 and, therefore, cannot be

taken into consideration.

The ground which has been taken that the minutes of the

meeting dated 14.9.2010 had not been sent to the Director Higher

Education as per condition 6 of the letter dated 26.11.1999, suffice it to

say that letter dated 20.9.2010 which is under challenge in the present case

is not based upon non-supply of the proceedings of the Governing Body

Meeting dated 14.9.2010, nor does it influence or has any bearing on the

decision communicated vide letter dated 20.9.2010. This is also not a

ground mentioned in the said letter for declaring the decision taken in the

meeting dated 14.9.2010 as illegal which was communicated vide order

dated 15.9.2010 by the Governing Body. In any case, as per condition 6,

copy of the proceedings of every meeting of the Governing Body was

required to be sent to the Director only for his information. It would not be

out of way to mention here that after the meeting dated 14.9.2010, the next

meeting of the Governing Body was held on 7.1.2011 which was attended
C.W.P.No.16917 of 2010 -27-

by the Director. A perusal of the minutes of the same would show that the

minutes of the meeting dated 14.9.2010 were duly circulated to all the

members of the Governing Body and various objections raised by the

Director against confirmation of the minutes were duly considered in the

meeting. There was no objection raised by him with regard to the non-

supply of the proceedings of the meeting held on 14.9.2010. This reason as

has been urged now to support letter dated 20.9.2010 is again an

afterthought.

The principles as laid down in the judgment of the Supreme

Court in Mohinder Singh Gill’s case (supra) would be applicable to this

case, according to which when an Authority makes an order based on

certain grounds, its validity must be judged by the reasons so mentioned and

cannot be supplemented by fresh reasons in the shape of affidavit or

otherwise to justify it. Orders passed by public authorities are meant to

have public effect and are intended to affect the acting and conduct of

those to whom they are addressed and must be construed objectively

with reference to the language used in the order itself. Otherwise an order

bad in the beginning may by the time it comes to Court on account of

challenge, may get validated by additional grounds later brought out.

Otherwise also, the additional grounds pressed into service by the

Director as dealt with above have failed to justify the impugned letter

dated 20.9.2010.

The submissions as made by Mr.Anupam Gupta, relying upon

the judgments of the Supreme Court which have been referred to above,

emphasize the eminent position and important role which has been assigned

to the Director in the scheme of the 1947 Act as also of the Principal of a
C.W.P.No.16917 of 2010 -28-

College and thus, importance attached to the said post. There can be no

doubt or dispute on the said aspect. However, an Authority when

exercising its powers cannot act arbitrarily, without any jurisdiction or

authority conferred by/under any statute or law. In the case in hand, the

Acts and the Rules/Regulations, which are applicable, do not confer the

power and authority which has been exercised by the Director, while

communicating the letter dated 20.9.2010. Simply because the scheme of

the Act and Rules/Regulations assign an important role to an Authority,

does not confer any jurisdiction unto him unless so provided under such

Act, Rule or Regulation. If this principle is to be accepted, as has been

contended by Mr.Gupta, it would lead to total chaos and give

unfettered, unbridled and unregulated powers to the Authorities to

proceed in the manner at their whims and fancies, which cannot be

approved.

The only aspect which now needs to be considered and

decided is with regard to the authorization given to Mrs.Madhu Bahl

for filing the present writ petition. Various submissions have been

made as has been referred to above but it should not detain the Court

for long in the light of Resolution No.4 passed by the Governing

Body in its meeting dated 14.9.2010. Reference to the said resolution

would be beneficial to decide this aspect and the same reads as

follows:-

“4. Resolved that a caveat be filed in the

Punjab and Haryana High Court, Chandigarh and that

Mrs.Madhu Bahl, Principal, Kailash Bahl DAV

Centenary Public School, Sector-7-B, Chandigarh, be
C.W.P.No.16917 of 2010 -29-

authorized to file a caveat in the Punjab & Haryana High

Court at Chandigarh on behalf of the Governing

Body/Managing Committee, DAV College, Sector-10,

Chandigarh/DAV College Managing Committee, Chitra

Gupta Road, New Delhi on the suspension of Dr.Josan,

Principal DAV College, Sector-10, Chandigarh who has

been placed under suspension by the Governing

Body/Managing Committee, DAV College, Sector-10,

Chandigarh. She be further authorized to sign all

documents including plaint(s), suit(s), replication(s),

rejoinder(s), affidavit(s), as well as to engage

Advocate(s) in connection therewith.”

It is not in dispute that the present writ petition is related

to and in connection with suspension of Dr.Josan and the

authorization as reproduced above would cover the authorization to

file this writ petition as well for the reason that Mrs.Madhu Bahl has

been given Authority to sign all documents including plaint(s), suit(s),

replication(s), rejoinder(s), affidavit(s) as well as to engage advocate(s)

in connection with a matter relating to suspension of Dr.Josan. The

objection as raised by respondent No.1-Director, with regard to the

maintainability of the writ petition is thus, without any basis and is hereby

rejected. In the light of this, there is no necessity to go into the aspect

of ratification of filing writ petition by the Governing Body in its

meeting dated 14.1.2011.

C.W.P.No.16917 of 2010 -30-

In view of above;

(i) CWP No.11022 of 2010 Dr.Balbir Chand Josan vs. Chandigarh

Administration, U.T., Chandigarh and others is disposed of as

infructuous.

(ii) Order dated 17.9.2010 passed by the Registrar, Panjab University,

Chandigarh, which is under challenge in CWP No.16917 of 2010 Dr.Balbir

Chand Josan vs. Chandigarh Administration, U.T., Chandigarh and others

is hereby set aside. However, no relief is granted to the petitioner in this

writ petition on the ground that the earlier order dated 16.9.2010 passed by

the Registrar, Panjab University, Chandigarh is also not in accordance with

law as held above. However, in the light of the fact that now the order of

suspension and the charge sheet have been duly conveyed to the Registrar,

Panjab University and are in his knowledge, it would be open to him to pass

appropriate orders in accordance with law. It shall also be open to Dr.Josan

to move a fresh application to the Registrar, if so advised, to claim relief

under Regulation 9.2.

(iii) C.W.P.No.17347 of 2010 The Governing Body, DAV College,

Sector 10, Chandigarh vs. Chandigarh Administration and others is

allowed. The impugned order dated 20.9.2010 is hereby quashed. Costs of

Rs.20,000/- is imposed on respondent No.1, to be deposited with the

Legal Services Authority, U.T., Chandigarh, within a period of four weeks

from today, failing which the Secretary, Legal Services Authority, U.T.,

Chandigarh, shall initiate process for recovery of the same.

This Court while exercising its powers as conferred by the

Constitution under Article 226 is mandated to do justice and in

furtherance thereto to pass such orders and/or directions as necessary.
C.W.P.No.16917 of 2010 -31-

While adjudicating over a dispute or issue not only a decision has to be

pronounced thereon but efforts should be made to resolve and

conclude the matter at the earliest so that complete justice is done. The

Court must see to it that the matter reaches its logical conclusion

leaving nothing to confusion or uncertainty so that the cause of justice or

justice itself is not a casualty. It is rather unfortunate as to what has

happened in DAV College, Sector 10, an educational institution of high

repute of Chandigarh. No one would dispute that this has not only harmed

its image and reputation but the studies and interest of students have

suffered immensely because of this tussle. The charge sheet was issued to

Dr.Josan on 18.9.2010 and the consequential proceedings are pending

which need to be finalized at the earliest so that the mist of uncertainty is

cleared. This would not only be in the interest of the parties but the

institution also. Accordingly, direction is issued to the concerned parties to

finalize the departmental proceedings initiated against Dr.Josan within a

period of two months from today so that the education and students are not

made to suffer any more because of the friction between the Management,

its employee and others.

July 14th , 2011                        ( AUGUSTINE GEORGE MASIH )
poonam                                            JUDGE


Whether referred to Reporters?               Yes/No