1994 PLP 1642 (MLD)

This his judgment shall dispose of W.Ps. Nos. 3770/92, 6138/92, 3521/93, 4223/93,- 11571/92 and 17681/93 in which common questions arise for determination.

2. National College of Mass Communication, petitioner in W.P. No.3521/93 is an educational institution being run in the private sector and has been registered as such by the Government of Punjab under Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984.

3. On 18-2-1990 the petitioner applied to the University of Punjab for grant of affiliation for teaching the subject of Mass Communication at post-graduate level in terms of section 35 of the University of the Punjab Act, 1973. This was followed by another application dated 2nd July, 1991. These applications were referred to the Affiliation Committee of the University of Punjab which carried out inspection on 11-2-1992 and recommended to the University not to grant affiliation to the petitioner college in view of certain shortcomings pointed out by the Committee. On 5th March, 1992, a letter was addressed by the Registrar of the University to the Principal of the National College of Mass Communication informing him of the recommendation made by the Affiliation Committee and the decision of the University not to grant affiliation to the petitioner college. It was also stated in the notice that the petitioner can make a representation against the proposed decision on or before 11th March, 1992 and if it so desires, a personal hearing can also be granted by the Vice Chancellor. The petitioner sent its reply on 11th March, 1992 and its Principal was heard by Vice-chancellor on 2nd April, 1992 who proceeded to reject the application of the petitioner. This order was passed by the Vice-Chancellor on behalf of the Syndicate of University under section 15(3) of the Act, 1973. Thereafter, the matter was placed in the meeting of the Syndicate on 18-2-1993 which approved the decision of the vice-Chancellor.

4. Learned counsel for the petitioner, Dr. A. Basit, Advocate has raised various contentions in support of this petition; firstly that the Vice-Chancellor of the University had no jurisdiction to refuse affiliation, which power is vested in the Syndicate alone;" secondly that even if the Vice-Chancellor was competent to pass initial order in an emergency, the Syndicate should, when it met, have taken independent decision in the matter after applying its mind to the facts and circumstances but it had failed to do so and instead approved the order of the Vice-Chancellor in a mechanical manner and thirdly that in any event, if the Syndicate was minded to refuse the application of the petitioner, it should have granted an opportunity to it to represent against the proposed action before proceeding to pass any final order.

5. Learned counsel appearing for the University of Punjab has vehemently defended the order of the Vice-Chancellor by terming it to be unexceptionable. According to the learned counsel, the Vice-Chancellor had the power and jurisdiction 'under section 15(3) of the Act to pass an order on behalf of the Syndicate which subsequently met and approved the order of the Vice-Chancellor, no possible exception can be taken to same.

6. Before proceeding to embark upon the examination of the contentions raised by the learned counsel for the parties, a reference to relevant provisions contained in the Punjab University Act, 1973 would be beneficial. Chapter 3 of the University of the Punjab Act, 1973 in section 10 enumerates various officers to be appointed by the University whose powers and qualifications are provided for in sections 11 to 22 in the same Chapter. Similarly, a reference to Chapter IV would show that it contemplates setting up Authorities mentioned in section 22 while the remaining provisions in the said Chapter deal with the constitution and powers of these Authorities. There is no dispute that the power to grant or refuse affiliation vests in the Syndicate of the University alone under section 35 of the Act. Section 39 provides for an appeal against the decision of the Syndicate to the Senate. However, the Vice-Chancellor is authorized by section 15(3) of the Act to take such action as he may consider necessary in an emergency on behalf of any officer or authority/whereafter he is required to report his action for approval to the officer or authority which in ordinary course would have dealt with the matter. It has been explained in the written statement that since the question of affiliation is directly relatable to the right of candidate to take the examination, the matter by its nature is emergent and requires immediate attention and for that reason, application for affiliation are dealt with by the Vice-Chancellor as was done in the present case by him. To such course perhaps no possible exception can be taken.

7. The real question, however which arises, is as to the validity of the proceedings taken by the Syndicate on 18-2-1993 whereby the application of the petitioner was finally disposed of.

8. After hearing the learned counsel for the parties and considering their respective contentions, I am of the view that these proceedings are legally infirm and are not sustainable for two reasons; firstly that notwithstanding the Vice-Chancellor has a power to take action in an emergency under section 15(3) yet it is the Syndicate alone which is required to take the final decision in the matter as provided by section 35(4) of the Act and this power can neither be delegated nor exercised by any other authority. The conclusion which follows from the reading of section 35(4) with section 15 is that the Vice-Chancellor can pass an order which would be interim or interlocutory in nature but the final decision to refuse or grant affiliation must betaken by the Syndicate after due application of its mind to the facts and requirements of section 35(1) as also the recommendation of the Affiliation Committee. In short, the final order must be passed by the Syndicate and not by the Vice-Chancellor. This is all the more necessary because under section 39 of the Act, an appeal lies against the decision of the Syndicate refusing affiliation. This right is likely to be defeated if no order is passed by the Vice-Chancellor.

9. The second reason which has impelled me to hold that the proceedings of the Syndicate dated 18-2-1993 are without lawful authority is that no opportunity of making representation before the Syndicate against the proposed action of refusal was allowed to the petitioner despite the clear mandate of proviso to section 35(4) of the Act. To me it appears that grant of such an opportunity is a condition precedent/sine qua non for the exercise of this jurisdiction. It is unfortunate that the petitioner was never asked to state its point of view before the Syndicate.

10. I am not impressed by the argument of the learned counsel for the respondents as the petitioner was heard by the Vice-Chancellor, the requirement of proviso stood satisfied. The reason for so holding is that the proviso is to be read alongwith substantive provision of section 35(4) wherein the power vests in the Syndicate and not in the Vice-Chancellor and, therefore, opportunity of making representation contemplated by the proviso is of course, to be before the Syndicate itself.

11. Furthermore, according to the plain wording of the proviso, there are two stages in the process of deciding the application for affiliation; firstly when a tentative opinion is to be formed after the receipt of recommendation as to whether affiliation has to be granted or refused. If the Syndicate is of the view that the application is to be refused, then against that proposed action, an opportunity to make representation against that proposed action has to be made available and thereafter the Syndicate can take a final decision. In the instant case, even if the order of the Vice-Chancellor can be considered to b in this light, the order of Vice-Chancellor can at the most be considered to be an order proposing that the affiliation be refused but as the final decision ha to be taken by the Syndicate itself before proceeding to do so, an opportunity should have been granted to petitioner to represent against it. This view is strengthened by the use of the words "proposed decision" in the proviso itself. In view of what has been stated above, this petition is allowed; the proceedings taken by the Syndicate are declared to be without lawful authorit3 and of no legal effect with the result that the matter stands remitted to the Syndicate for decision after allowing the petitioner an opportunity of representing against the proposed decision. There shall be no order as to costs. M.B.A./S-480/L????????????????????????????????????????????????????????????????????????????????? Petition allowed