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C/M Handia P.G. College Thru' Manager & Anr. v. State Of U.P. Thru' Secy. Higher Education & Ors. - WRIT - C No. 33049 of 2005  RD-AH 7483 (14 December 2005)
Court No. 53
Civil Misc. Writ Petition No. 33049 of the 2005
Committee of Management of
Handia Post Graduate Degree
College, Handia, Allahabad
though its Manager Dr. Deo Raj Singh .......Petitioners
State of U.P. and others ........Respondents
HON. ARUN TANDON, J.
Heard Sri Ashok Khare, Senior Advocate assisted by Sri T.B. Pandey, on behalf of the petitioners, Sri S.M.A. Qazmi, learned Chief Standing Counsel, on behalf of the respondent nos. 1 and 2, Sri Anil Tewari, Advocate on behalf of respondent no.3 and Sri Saumitra Singh, Advocate on behalf of respondent no.4.
Handia Post Graduate College, Handia, District Allahabad through its Manager Dr. Deo Raj Singh, has filed this writ petition for quashing: (a) the letter of the Secretary, Higher Education, Secretariat, Uttar Pradesh, Lucknow (respondent no.2) dated 30th November, 2004 addressed to the Vice-Chancellors of all the Universities of the State of Uttar Pradesh, whereby it has been provided that from academic session 2004-05 all degree colleges must seek affiliations from the Universities within the territorial jurisdiction, whereof the colleges are situated. The institutions, which had obtained affiliations earlier from the Universities outside their territorial jurisdiction, must get themselves affiliated for the academic session 2005-06 with the University under whose territorial jurisdiction the institution is situated, (b) the consequential letter of the Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur , dated 18th January, 2005 addressed to the Manager, Handia Post Graduate Degree College, Allahabad (petitioner), directing that from the academic session 2005-06, the petitioner's institution has to obtain affiliation from the University under whose territorial jurisdiction the institution is situated.
The relevant facts are as follows:
Handia Post Graduate College, Handia situated in the District Allahabad, was established in the year 1973. Under the provisions of Section-5 of the U.P. State Universities Act, 1973 (hereinafter referred to as the '1973 Act), Kanpur University had the territorial jurisdiction to grant affiliation to the petitioners' institution and therefore, initially a temporary affiliation was granted in favour of the petitioners' institution, which was affiliated by the Kanpur University for B.A. and thereafter, for B.Ed. Classes in the year 1981.
In the year 1981 a new University known as "Veer Bahadur Singh Purvanchal University" was established by the State Government at District Jaunpur. The distance between Handia Post Graduate College, Handia and the Veer Bahadur Singh Purvanchal University at Jaunpur, was only 80 Kilometers, while the distance between the Handia Post Graduate College, Handia and the Kanpur University, was approximately 250 Kilometers. Having regard to the said facts and circumstances, the State Government issued an Ordinance , namely, "The Uttar Pradesh State Universities (Third Amendment) Ordinance, 1990" being U.P. Ordinance No. 26 of 1990.
The Ordinance No. 26 of 1990 reads as follows:
"No. 2198 (2)/ XVII-V-1-----2 (KA) 27-1990
Dated Lucknow, September 21,1990
In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English Translation of the Uttar Pradesh Rajya Vishwavidyalaya (Tritiya Sanshodhan) Adhyadesh, 1990 (Uttar Pradesh Adhyadhesh Sankhya 26 of 1990) promulgated by the Governor.
THE UTTAR PRADESH STATE UNIVERSITIES (THIRD
AMENDMENT) ORDINANCE, 1990
[U.P. Ordinance No. 26 of 1990]
(Promulgated by the Governor in the Forty-First Year of the
Republic of India.)
further to amend the Uttar Pradesh State Universities Act, 1973
WHEREAS, both the houses of the State Legislature are not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action:
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution, the Governor is pleased to promulgate the following Ordinance :- 1. This Ordinance may be called the Uttar Pradesh Universities (Third Amendment) Ordinance, 1990.
2. In section 5 of the Uttar Pradesh State Universities Act, 1973, after sub-section (1), the following sub-section shall be inserted, namely :---
"" (1-A) (a) Notwithstanding anything contained in sub-section (1), from such date as the State Government may, by notification, appoint in this behalf, in respect of Hndia Degree College in district Allahabad, instead of the University of Kanpur, the Purvancahl University shall, exercise the powers conferred on a University under this Act and thereupon the Schedule shall stand amended accordingly.
(b) The notification under this sub-section may provide for such other, transitory, supplemental, incidental and consequential provisions as the State Government may deem necessary for the implementation of the provisions of clause (a)"
With the issuance of the consequential notification, by the State Government the concerned files pertaining to the institution qua the courses/subjects for which the college was affiliated, including the files and records of teachers and staffs and also the examination forms of the students at relevant time, were transferred to the Purvanchal University. The affiliation already granted in respect of the subjects or courses by the Kanpur University to the Handia Degree College, were continue as if granted by Purvanchal University, the institution was not required to obtain fresh affiliation, in respect thereto from the Purvanchal University.
Since the Ordinance No. 26 of 1990 was not converted into the Act. The State Government issued successive Ordinances, namely, Ordinance Nos. 11 of 1991 (on 15th February, 1991), 37 of 1991 (on 11th September, 1991), 7 of 1992 (on 16th March, 1992), 13 of 1992 (on 18th May, 1992) and 27 of 1992 (on 29th November, 1992), whereby the acts done under the original Ordinance of 1990, were deemed to have been undertaken under the subsequent Ordinance, as if the amended provisions were applicable, at all material time with the Purvanchal University to be the University, which had the territorial jurisdiction under the State Universities Act for Handia Degree college.
Subsequent to the Ordinance no. 27 of 1992 dated 29th November, 1992, no further Ordinance was issued, however, Handia Degree College continued to be affiliated to Purvanchal University and during this period it applied for and was granted affiliation in Post Graduate Classes in various subjects and on various dates. It is also on record that permanent affiliation has been granted by the Purvanchal University vide order dated 26th February, 1998 in the subjects of Hindi and Psychology.
On 3rd September, 2003 and on 15th October, 2003 permanently, the Handia Post Graduate degree college has been granted temporary affiliation for M.Ed. Course as well as for B.P.Ed. Course by the Purvanchal University. At no point of time any objection was raised with regard to the Handia Post Graduate Degree College being continued in affiliation with the Purvanchal University. While the application of the petitioner's institution for extension of their affiliations for B.P.Ed course, was pending before the State Government, the order dated 30th November, 2004 was issued by the State Government providing that the colleges shall have to obtain affiliations from the University under whose territorial jurisdiction the colleges are sitauted.
According to the petitioner the said Government Order was not applicable to the petitioners' institution, inasmuch as the Schedule to the U.P. State Universities Act stood amended under the Ordinance No. 26 of 1990 permanently, qua the Handia Post Graduate Degree college. However, on misreading of the aforesaid, the State Government and the Purvanchal University has issued the letter dated 18th January, 2005 requiring the petitioners' institution to seek affiliation from the Kanpur University only.
On behalf of the petitioner it is contended that the Ordinance issued in the year 1990 followed by successive Ordinances issued thereof had the effect of amending the Schedule to the State Universities Act, so far as the Handia Post Graduate Degree college is concerned permanently. Even after the Ordinances have lapsed, amendment affected in the Schedule, so far as the Handia Post Graduate Degree college is concerned, still continuance to be operative and therefore, the Handia Post Graduate degree college cannot be asked to seek affiliation from the Kanpur University, inasmuch as for all the practical purposes, the Purvanchal University continue to be the University having territorial jurisdiction over the Handia Post Graduate Degree College. According to the petitioner mere lapsing of the Ordinances by which the amendment in Schedule to the State Universities Act was affected, will not in any way alter the settled position. The permanent effect of the amendment to the Schedule is not lost because of the lapsing of the Ordinances. Learned counsel for the petitioner further points out that the impugned orders do not taken care of the special status conferred upon the Handia Post Graduate Degree College under the Ordinances referred to above. In support of his contentions the learned counsel for the petitioner has placed reliance upon the judgments of Hon'ble Supreme Court reported in AIR 1985 SC 724; T.Venkat Reddy vs. State of Andhra, AIR 1962 SC 945; State of Orrisa vs. B.K. Bose and (1198) 5 SCC 643; Krishna Kumar Singh and another vs. State of Bihar.
Sri S.M.A. Kazmi, Chief Standing Counsel, however, submits that in view of Article 213 of the Constitution of India the Ordinance has necessarily to be brought before the Legislative Assembly within the time specified, failing which the ordinance shall laps. The vary fact that the State Government has issued Ordinances on six occasions, for the purposes of amending the schedule to the State Universities Act, in respect of Handia Graduate Degree College, is in itself, sufficient to establish that no permanent rights were created under the Ordinance nor the Schedule stood amended permanently. Learned Chief Standing Counsel further submits that none of the ordinance were converted into an Act. Thus, with the lapse of last Ordinance dated 29th November, 1992, the arrangements made for the affiliation of Handia Post Graduate College, Handia, Allahabad with the Purvanchal University came to an end and thereafter the Handia Post Graduate College, Allahabad automatically came within the territorial jurisdiction of the University of Kanpur as before. It is therefore, contented that the State Government vide letter dated 30th November, 2004 has only clarified the legal position with regard to the affiliation of degree colleges to the respective Universities and has rightly insisted that the colleges must obtain affiliation from the Universities under whose territorial jurisdiction they are situate. Such an order of the State Government cannot be faulted with as it has been issued for appropriate action being taken by the University in accordance with law. Learned Chief Standing Counsel further points out that Purvanchal University, in such circumstances, has rightly issued the order dated 18th January, 2005 asking the petitioner to obtain affiliation from the Kanpur University.
Sri Anil Tewari, Advocate on behalf of the Purvanchal University has supported the contention raised on behalf of the State Government and only repeated the contentions raised on behalf of the State Government.
In view of the rival contentions raised the issue, which arises for consideration, is with regard to the nature and effect of the amendments brought about in the Schedule to the State Universities Act by the Ordinance No. 26 of 1990 and the subsequent Ordinances issued, whether the said amendments so made in the Schedule created permanent right, Veer Bahadur Singh Purvanchal University to exercise powers of University qua the petitioner's institution even after lapsing of the Ordinance itself.
From the aforesaid facts as noticed hereinabove, the controversy raised in the present writ petition boils down to the issue as to whether the amending Ordinance (being Ordinance No. 26 of 1990) had the effect of amending the Schedule to the State Universities Act permanently or not. In order to appreciate the aforesaid dispute, it is worthwhile to refer to Section-5, 5 (1-A) of the State Universities Act, as amended vide Ordinance No. 26 of 1990 and the Schedule, which read as follows:
"Section-5- Territorial exercise of powers- Save as otherwise provided by or under this Act, the powers conferred on each University (other than the Sampurnanad Sanskrit Vishvavidylaya and the Kashi Vidyapith) shall be exercisable in respect of the area for the time being specified against it in the Scheduled.
" (1-A) (a) Notwithstanding anything contained in sub-section (1), from such date as the State Government may, by notification, appoint in this behalf, in respect of Hndia Degree College in district Allahabad, instead of the University of Kanpur, the Purvancahl University shall, exercise the powers conferred on a University under this Act and thereupon the Schedule shall stand amended accordingly.
(b) The notification under this sub-section may provide for such other, transitory, supplemental, incidental and consequential provisions as the State Government may deem necessary for the implementation of the provisions of clause (a).
(See Section 5)
-------------------------------------------------------------------------------Sl.No. Name of University Area within which the
University shall exercise
---------------------------------------------------------------------------------1. 2. 3.
5. The University of Kanpur District of Allahabad, Banda
(i) Until the establishment Barabanki, Etawah,
of the Universities of Farukhabad, Fatehpur,
Bundelkhand and Awadh Hamirpur,Hardoi, Jalaun,
Lalitpur, Lucknow, Raibareily,
Sitapur and Unnao excepting the area which lies within the limits of the Universities
of Allahabad and Lucknow
12. The Purvanchal University District of Azamgarh, Ballia,
Ghazipur, Jaunpur, Mirzapur
The aforesaid Section-5, therefore, mandates the area over which the State Universities established under the U.P. State Universities Act could exercise their powers. Degree colleges situated within the territorial jurisdiction of the University have necessarily to obtain affiliations from the said University alone.
Under Ordinance No. 26 of 1990 it was provided that on issuance of the notification by the State Government, the Schedule to the State Universities Act shall stands amended from the dates of notification, and Veer Bahadur Singh Purvanchal University shall exercise powers, conferred upon the University under the Act in respect of Handia Post Graduate Degree College, Handia.
It is not in dispute that the State Government, in fact, issued necessary notification, whereby Section-5 (1-A) was given effect to and as a consequence thereto, the Schedule to the State Universities Act stood amended and accordingly, Veer Bahadur Singh Purvanchal University got territorial jurisdiction in respect of Handia Post Graduate Degree College, Handia, District Allahabad. The facts in that regard are not in dispute.
It is established from the records that the said Ordinance was never placed before the legislative assembly and therefore, in view of Article 213 of the Constitution of India the said Ordinance lapsed after expiry of six months because of not being converted into an act. The State Government thereafter issued fresh Ordinances being Ordinance Nos. 11 of 1991 (on 15th February, 1991), 37 of 1991 (on 11th September, 1991), 7 of 1992 (on 16th March, 1992), 13 of 1992 (on 18th May, 1992) and 27 of 1992 (on 29th November, 1992). The language of the subsequent Ordinances is identical and under Section 5 of the subsequent Ordinances the action taken under the provisions of previous Ordinance was saved by providing that they shall be deemed to be taken under the provisions of the subsequent Ordinances and as if the provisions of the subsequent Ordinances were in force at all material time.
All the subsequent Ordinances made a reference to a notification to be issued by the State Government for notifying the date from which the Schedule shall stands amended. The writ petition is completely silent about any notifications having been issued by the State Government in pursuance of the Ordinance Nos. 11 of 1991 (on 15th February, 1991), 37 of 1991 (on 11th September, 1991), 7 of 1992 (on 16th March, 1992), 13 of 1992 (on 18th May, 1992) and 27 of 1992 (on 29th November, 1992). However, the State respondents have not disputed that despite the Ordinances issued from time to time having lapsed, Purvanchal University continued to exercise territorial jurisdiction over Handia Post Graduate Degree College, Handia upto the year 2004-05.
As a matter of fact permanent affiliation was granted to the said Post Graduate Degree College by the Purvanchal University in various subjects and courses upto the year 2003. Certain applications of the institution for grant of affiliation in additional subjects were also processed and as a matter of fact the college made deposits towards Endowment Fund to the sum of Rs. 18,30,000/- in form of Fixed Deposit Receipt on 9th April, 2005.
In the aforesaid factual background, it has to be ascertained as to whether on the issuance of the notification by the State Government with reference to Ordinance No. 26 of 1990, Schedule to the State Universities Act stood amended permanently or not, i.e. the amendment made in the Schedule with regard to the territorial jurisdiction of Veer Bahadur Singh Purvanchal University qua Handia Post Graduate Degree College, Handia was permanent in nature or else it lost its life, once the Ordinance had lapsed after expiry of six months, in view of Article 213 of the Constitution of India.
The legal position with regard to the effect of lapsing of an Ordinance/temporary Act has been subject matter of consideration before the Hon'ble Supreme Court of India in the case of State of Orrisa vs. B.K. Bose (Supra).
It would be worth while to refer to the law as has been laid down by the Hon'ble Supreme Court. The relevant portion of the said judgment reads as follows:
"19. It is true that the provisions of Section-6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras, 1951 SCR 621 : (AIR 1951 SC 301), the general rule in regard to a temporary statute is that in the absence of special provisions to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can, and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respect similar to that of S. 6 of the General Clauses Act. Incidentally, we ought to add that, it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Article 213 (2) (a).
20. Wicks v. Director of Public Prosecutions, 1947 AC 362 is an illustration in point. The Emergency Powers (Defence) Act, 1939, section 11, sub-section 3, with which that case was concerned, provided that the expiry of the Act shall not affect the operation thereof as respect things previously done or omitted to be done. The appellant Vicks was convicted in May 1946, of offenses committed in 1943 and 1944 contrary to Regulation 2A of the Defence (General)Regulations 1939, made pursuant to the Act. Both the Act and the Regulation expired on February 24, 1946. It was as a result of this specific saving provision contained in S. 11(3) of the Act that the House of Lords held that, although regulation 2A had expired before the trial of the appellant, he was properly convicted after the expiration of the Act, since S.11 (3) did not expire with the rest of the Act bing designed to preserve the right to prosecute after the date of expiry. Mr. Chetty contends that there is and can be, no corresponding saving provisions made by the Ordinance in question and so, the invalidity of the Cuttack Municipal Elections would revive as soon as the Ordinance expired by lapse of time. This contention is based on general rule thus stated by Craies:
" that unless a temporary Act contains some special provision to the contrary after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. That is why offenses committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate (Craies on Statute Law, P. 377)
21. In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies in inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the Act expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an inflexible and universal rule? In our opinion, what the effect of the expiration of a temporary Act, would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. As observed by Parker, B. in the case of Steavenson v. Oliver (1841) 151 E.R. 1024 at pp. 1026-1027.
"there is a difference between temporary statutes and statutes which are repealed: the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are mattes of construction."
In this connection, it would be useful and interesting to consider the decision in the case of Stenvenson, (1841) 151 E.R. 1024 at pp. 1026-1027 itself. That case related to 6th Geo. 4, c. 133, section 4 which provided that every person who held a commission or warrant as surgeon or assistant-surgeon in His Majesty's navy or army, should be entitled to practise as an apothecary without having passed the usual examination. The Statute itself was temporary and it expired on August 1, 1826. It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after August 1, 1826 because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. The Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute, Lord Abinger, C.B. observed that
"it is by no means a consequence of an Act of Parliament's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an Act of Parliament would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration? The case of a right acquired under the Act is stronger. The 6 Geo. 4, C. 133, provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment."
It is in support of the same conclusion that Parker. B. made the observations which we have already cited. "We must look at this act," observed Parker, B, " and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question. It seems to me that the meaning of the legislature was that all assistant-surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on August 1, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after August 1, 1826."
Take the case of a penalty imposed by a temporary statute for offences created by it. If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal? In our opinion, the answer to this question has to be in the negative. Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter."
Reference may also be had to the law as has been laid down by the Hon'ble Supreme Court in the case of T. Venketa Reddy vs. State of Andhra Pradesh(Supra). The relevant portion of the said judgment reads as follows:
19. The next question is whether the posts of part-time village officers revive as the Ordinance is not replaced by an Act of the Legislature of the State. This contention of the petitioners is based on clause (2) of Art. 213 of the Constitution. It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance had never become effective and that it was void ab initio. This contention overlooks two important factors namely the language of cl. (2) of Art. 213 of the Constitution and the nature of the provisions contained in the Ordinance. Cl. (2) of Art. 213 of the Constitution says that an ordinance promulgated under that Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor but every such ordinance (a) shall be laid before the Legislative Assembly of the State, or, where there is a Legislative Council in the State, before both the Houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the council and (b) may be withdrawn at any time by the Governor. It is seen that Art. 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Art. 213. Secondly the Ordinance deals with two separate matters. By S. 3 of the Ordinance it abolishes the posts of part-time village officers on the commencement of the Ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date.By S.4 and other allied provisions the Ordinance has provided regarding the creation of posts of Village Assistants and appointment and conditions of service of Village Assistants who are full-time employees of the Government. There is no doubt that a separate Provision is made in S. 5 of the Ordinance for payment of some amount to the ex part-time village officers. Now by virtue of S. 3 of the Ordinance all the posts of part-time village officers stood abolished on January 6, 1984 and the petitioners ceased to be employees of the State Government. These two matters became accomplished facts on January 6, 1984, irrespective of whether the holders of these posts were paid any amount under S.5 or whether the new posts of Village Assistants were filled up or not. Even if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of clause (2) of Art. 213, the effect of S. 3 of the Ordinance was irreversible except by express legislation. An analogous question arose for consideration before a Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose (1962) Supp (2) SCR 380: (AIR 1962 SC 945).
From the aforesaid it is apparent that as a general rule with regard to a temporary statute in absence of special provisions to the contrary, the statute valid for limited time, ceases to exist after its expiration. Nothing remain on the statute book of the temporary Act, on which further action could be taken after expiry of the temporary Act, subject, however, to the condition that the rights/obligations created by the Statute if of enduring character and have vested in a person, such rights cannot be taken away because of the statute under which they had been created, has expired. Such a permanent right would survive the expiration of the temporary statute.
From the Ordinance No. 26 of 1990 it is apparent that from the date the State Government notified, Purvanchal University was conferred powers of the University over the Handia Post Graduate Degree College, Handia and the Schedule under Section-5 of the State Universities Act was declared to have been amended accordingly. Once main Section i.e. Section-5 (1-A) of the Act ceased to exist because of expiration of the ordinances, consequential declaration with regard to the amendment in the Schedule to Section-5 would fall automatically.
This Court is satisfied that the amendment in the Schedule cannot survive subsequent to the expiration of the main Section i.e. 5 (1-A) because of the lapsing of the ordinance. To that extent the contention raised on the petitioners, cannot be accepted and they are not right in contending that the Schedule to Section-5 of the State Universities Act stood permanently amended with the issuance of notification by the State Government under Section 5 (1-A) as inserted by Ordinance No. 26 of 1990.
The aforesaid conclusion is supported by the fact that the Ordinances making authority had himself itself issued successive ordinances subsequent to Ordinance No. 26 of 1990. If the Schedule had been amended permanently as suggested by learned counsel for the petitioner under the Ordinance No. 26 of 1990 qua Handia Post Graduate Degree College, Handia, there was no need of any subsequent ordinances being issued by the ordinance making authority.
Now it is still to be ascertained in the facts of the present case, as to whether the amendments incorporated under the Ordinance No. 26 of 1990 and the subsequent Ordinances thereof, had the effect of creating any rights/ liability of enduring nature.
From the records, it is established that Handia Post Gradate Degree College, Handia at the time of its inception in the year 1973 was initially affiliated to Kanpur University with the induction of Section-5 (1-A) to the State Universities Act by Ordinance No. 26 of 1990 i.e. after nearly ten years of its initial affiliation, the Purvanchal University became the University from which the said institution was to be affiliated and the affiliations granted by the Kanpur University in respect of various subjects and courses as well as the records of the teachers and staffs etc., were accordingly transferred to the Purvanchal University. The aforesaid fact establishes that affiliation in respect of particular subjects or courses granted by a particular University, can be transferred to another University in accordance with the Section-5 on creation of new University or amendment in the Schedule to Section-5 by an legislative Act. Thus the right and the obligations created in the Handia Post Graduate Degree College, Handia in respect of its affiliation to Kanpur University at time of its inception were transferred and brought within the territorial jurisdiction to the Purvanchal University under the Ordinance No. 26 of 1990. Similarly the affiliations in various subjects or courses for which the Handia Post Graduate Degree College, Handia has been granted by the Purvanchal University because of Section 5 (1-A) of Ordinance No. 26 of 1990, can also be transferred back to Kanpur University once the ordinance has lapsed. The Institution cannot insist upon the affiliation with the Purvanchal University, even after the Ordinance has lapsed.
Under the said judgment of the Hon'ble Supreme Court it is only enduring rights and obligations, which are created under a temporary statutes which are of permanent nature survive, even after expiration of the temporary Act. It is therefore, necessary to examine as to what rights have been permanently created and as to what rights conferred under the Ordinances, where permanent in nature. The rights/obligations may be categorized into two heads broadly.
(1) Subjects and Courses in which permanent affiliation has been granted:
So far as the courses or subjects in which permanent affiliation has been granted by the Purvanchal University are concerned; the transactions in that respect have been completed and vested right as accrued in the institutions. So far as the such subjects or courses are concerned, the permanent affiliation granted by the Purvanchal University cannot be said to have been rendered inoperative nor the petitioners can be deprived of their affiliation rights after expiration of the Ordinance. The transaction in that respect is completed and is of enduring character.
(2) Subjects and Courses in which temporary affiliation has been granted or applications in that regard are pending:
So far as the subjects/courses in which temporary affiliation has been granted or applications for affiliation are pending, with the lapsing of the Ordinances, the Purvanchal University ceases to have any territorial jurisdiction over the Handia Post Graduate Degree College and therefore, it is but necessary that the institution may now seek affiliation in the subjects/courses concerned as well as for grant of affiliation in new subjects or courses from the Kanpur University only. The temporary affiliations granted by the Purvanchal University cannot be held to have resulted in the transaction being completed/having enduring consequence, nor any vested right in that regard, has been created in the petitioner's institution by gran of such temporary affiliations. So far as affiliation in new subjects or courses is concerned, it is the Kanpur University, which can provide the same, in view of the provisions of the State Universities Act.
This Court is also conscious of the fact that the Purvanchal University has continued to exercise territorial jurisdiction over the Handia Post Graduate Degree College, Handia upto the year 2005. In such circumstances, it is appropriate to direct as follows:
1. So far as the courses and subjects in which permanent affiliation has been granted by the Purvanchal University to the Handia Post Graduate Degree College till date, records in that regard shall stands transferred to the Kanpur University along with service records of the teachers and staffs concerned and it shall be deemed in the eyes of law that the affiliation so granted are legally valid for all practical purposes and no hindrance shall be placed in the running of the said courses by the institution.
2. As so far as the subjects or courses in which temporary affiliation has been granted by the Purvanchal University, the records of such temporary affiliation shall also be transferred to the Kanpur University and institution shall be deemed to be affiliated temporarily with the Kanpur University with the opportunity to the petitioners' institution to seek further affiliation/permanent affiliation with the Kanpur University in the said courses or subjects on fulfilling the necessary conditions, which may be required under law. However, no hindrance shall be placed in running of the such courses or subjects for the period temporary affiliation is valid, by the petitioners' institution, so long as the Kanpur University does take a final decision qua the said subjects and courses. In that regard the petitioner may make necessary applications within one month from today with the Kanpur University.
3. So far as the pending applications in respect of new courses or subjects are concerned, same shall be transferred to the Kanpur University and shall be processed by the Kanpur University at the earliest possible and every effort should be made that the academic interest of the institution is safeguarded. The endowment fund in form of Fixed deposit, if any, made by the petitioners' institution with Purvanchal University shall also be transmitted to the Kanpur University.
4. Since under the existing State of affairs, the students could have already been admitted in various under Graduate examinations or Graduate examinations in different courses or subjects, it is necessary that such students may be permitted to complete their courses or subjects with the Purvanchal University itself. Accordingly it is provided that till the completion of the courses already started upto the academic session 2005-06, the Purvanchal University shall continue to be the examining body of the students of the petitioner's institution and their examinations form shall be accepted by the Purvanchal University and results as well as degrees shall be issued accordingly.
5. New admissions in any of the courses or subjects for the academic session 2006-07 and onwards shall be made by the institution and forms transmitted to the Kanpur University only and for such newly admitted students w.e.f the academic session 2006-07, Kanpur University shall be the examining body.
With the aforesaid directions the writ petition is disposed of finally.
December 14th, 2005
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