TaxTMI 
TaxTMI 
2015 (7) TMI 1437
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....by CMJ Foundation and to provide for matters connected therewith or incidental thereto. As the questions call for decision in the present writ petition are to be decided taking into consideration of the provisions of the CMJ University Act, 2009 (for short 'the said Act of 2009'), it would be more profitable to reproduce the relevant Sections of the said Act of 2009. Accordingly, the relevant Sections of the said Act of 2009 are reproduced hereunder:- "1. (1) This Act may be called CMJ University Act, 2009 (2). It shall come into force on such date as the State Government may, by notification appoint. Definitions 2. In this Act, unless the context otherwise indicates: (i.) "Academic Council" means the Academic Council of the University; (ii.) "Act" means the CMJ University Act, 2009; (iii.) "AICTE" means the All India Council for Technical Education established under Section 3 of the All India Council for Technical Education Act, 1987; (iv.) "Affiliated College" means a college or an institution which is affiliated to this University; (v.) "Annual Report" means the annual report of the Universi....
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....he University or in a constituent college or institution and includes the Principal of a constituent college or institution, in conformity with the norms prescribed by the UGC; (xxxix.) "UGC" means the University Grants Commission established under the University Grants Commission Act, 1956; (xl.) "University" means CMJ University, established under this Act; (xli.) "Vice Chancellor" means Vice Chancellor of the University appointed under Section 15 of the Act; (xlii.) "Visitor" means the Visitor of the University as referred to in Section 13 Chapter 2 The University and its Object Proposal for the establishment of the University 3.(1) The sponsor shall have the right to establish the University in accordance with the provisions of this Act and the guidelines issued by the UGC. (2) The sponsor shall make an application containing the proposal to establish the university to the State Government. (3) The proposal may contain the following particulars, namely: (a) The object of the University along with the details of the Sponsor; (b) The extent and status of the University and ....
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....lishment of the University in accordance with the guidelines issued by the UGC. (3) The headquarters of University shall be at Shillong and it may have campuses or Regional Centres, Study Centres anywhere in India and abroad with prior approval of the UGC, the respective State Governments, the Government of India and the Government of the Host Country as the case may be. Provided that after the development of the main Campus and 5 years after the Act comes into force the University may obtain permission from the UGC to set up such off-Campus Centre(s) and/or Study Centre(s) and/or regional centres and/or off-shore campuses. (4) The Chancellor, the Vice Chancellor, members of the Board of Governors, members of the Board of Management and the Academic Council for the time being holding office as such in the University so established, shall constitute a body corporate and can sue and be sued in the name of the University. (5) On the establishment of the University under Sub-Section (2), the land and other movable and immovable properties acquired, created, arranged or built by the University for the purpose of the University in the State of Meghalay....
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....vide consultancy to industry, Government, public and private organization; (k) To create a Industry Academia partnership by inviting Industry in the University campus and other university places for mutual benefits. (l) To ensure that the standard of degrees, diplomas, certificates and other academic distinctions are not lower than those laid down by AICTE/NCTE/UGC/MCI/DEC/DCI/INC/BCI and Pharmacy Council of India; (m) To do all things necessary or expedient to promote the above objectives; and (n) To pursue any other objective as may be prescribed by State Government or Sponsor. Powers of the University. 8. The University shall have the following powers, namely: (a) To establish, maintain and recognize such Regional Centres, Study Centres, Campuses, Off-campus Centres and Off-shore campuses as may be determined by the University from time to time in the manner laid down by the Statutes; (b) To confer degrees, diplomas, certificates or other academic distinctions etc. (c) To institute and award fellowships, scholarships and prizes etc; (d) To launch any academic & research programmes & courses....
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....or students belonging to the State of Meghalaya for admission in any course of the University or in a constituent college, affiliated college, Regional Centre, Off-campus centre, Off-shore campus or Study Centre; (q) To prescribe such courses for Bachelor Degree, Master's Degree, Doctor of Philosophy, Doctor of Science Degrees and Research and such other Degrees, Diplomas, Certificates etc.; (r) To provide for the preparation of instructional materials, including films, cassettes, tapes, video cassettes, CD, VCD, DVD and other software; (s) To recognize examinations or periods of study (whether in full or in part) of other Universities, Institutions or other places of Higher learning as equivalent to examinations or periods of study in the University and to withdraw such recognition at any time; (t) To create Industry Academia partnership by inviting Industry in the University campus and other university Centres for mutual benefits. (u) To raise, collect, subscribe and borrow with the approval of the Board of Governors whether on the security of the property of the University, money for the purposes of the University; (v) To....
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....ation or record; (b) To appoint the Vice-Chancellor; (c) To remove the Vice-Chancellor; (d) Such other powers as may be conferred on him by this Act made thereunder. The Vice Chancellor 15.(1) The Vice-Chancellor shall be appointed on such terms and conditions as approved by the Board of Governors for a term of four years by the Chancellor. (2) The Vice-Chancellor shall be appointed by the Chancellor from a panel of three persons recommended by the Board of Governors and shall hold office for a term of four years. Provided that, after expiration of the term of four years the Vice-Chancellor shall be eligible for re-appointment for another term not exceeding four years. (3) The Vice-Chancellor shall be the Principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of the authorities of the University. (4) If in the opinion of the Vice-Chancellor it is necessary to take immediate action on any matter for which powers are conferred on any other authority by or under this Act, he may take such acti....
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....y be prescribed or may be required from time to time, by the Board of Governors. (4) The Registrar shall be responsible for the due custody of the records and the common seal of the University and shall be bound to place before the Chancellor, the Vice-Chancellor or any other authority, all such information and documents as may be necessary for transaction of their business. (5) The Registrar shall exercise such powers and perform such duties as may be prescribed by Statutes of the University. (6) The Board of Governors is empowered to remove the Registrar after due enquiry. It will be open to the Board of Governors to suspend the Registrar during enquiry depending upon the seriousness of the charges, as he may deem fit. ***** ***** ***** ***** ***** ***** The Board of Governors and its powers 21. (1) The Board of Governors shall consist of the following members: (i) The Chancellor; (ii) The Vice Chancellor; (iii) Three persons nominated by the Sponsor; (iv) One representative of the State Government; (v) An educationist of repute to be nominated by the State Government; ....
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....ment of salaries and allowances of the officers and the employees of the University, members of the teaching and research staff, and payment of any Provident Fund Contributions, Gratuity and other benefits to any such officers and employees, members of the teaching and research staff; (f) The payment of travelling and other allowances of the members of the Board of Governors, the Board of Management, Academic Council, and other authorities so declared under the Rules & Regulations of the University and of the members of the Committee or Board appointed by any of the authorities of the-University in pursuance of any provision of this Act, or the Statutes made thereunder; (g) The payment of fellowships, freeships, scholarships, assistantships and other awards to students, research associates or trainees eligible for such awards under the Act, or Statutes of the University under the provisions of this Act; (h) The payment of any expenses incurred by the University in carrying out the provisions of this Act, or the Rules & Regulations made thereunder; (i) The payment of cost of capital, not exceeding the prevailing bank rate of interest, incurred by ....
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....overnment. (3) The manner of winding up of the University would be such as may be prescribed by the State Government in this behalf. Provided that no such action will be initiated without affording a reasonable opportunity to show cause to the Sponsor. (4) On Receipt of the notice referred to in Sub-section (1), the State Government shall, in consultation with the AICTE, UGC or other regulatory bodies make such arrangements for administration of the University from the proposed date of dissolution of the University by the Sponsor and until the last batch of students in regular courses of studies of the University complete their courses of studies in such manner as may be prescribed by the Statutes." 3. CMJ Foundation means Chandra Mohan Jha Foundation, a Trust registered at Shillong and recorded in Book No. 1, Vol-2, pages 166-188 being No. 383 of the year 2004. "Sponsor" means CMJ Foundation. Under Section 3 (1) of the said Act of 2009, the Sponsor shall have the right to establish the university in accordance with the provisions of the Act i.e. the said Act of 2009 and the guidelines issued by the UGC. Under Sub-Section (2) of Section 3 of the said Act of 200....
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.... for meeting and thereafter, the Secretary of the petitioner No. 1 and Shri. Chandra Mohan Jha met the Visitor. The petitioner No. 1/CMJ Foundation vide its letter dated 16.10.2009 to the Commissioner & Secretary Education Department Govt. of Meghalaya sought the approval of appointment of Chancellor. For easy reference, the said letter dated 16.10.2009 (Annexure-6 to the writ petition) is quoted hereunder:- "CMJ FOUNDATION Ref. No. CMJC/Uni.SHG/27 Date: 06.10.2009 The Commissioner and Secretary Education Department Govt. of Meghalaya, Shillong. Sub: Approval of appointment of the Chancellor of CMJ University, Shillong, Meghalaya. Dear Sir, With reference to the above, I would like to place before you the following facts, for your kind perusal and necessary action: 1. The CMJ University Bill, 2009 (No. LB.47/LA/2009/2) was passed by the Hon'ble Members of the Legislative Assembly of the State of Meghalaya, in its assembly session on 3rd July, 2009 (A copy of the bill is enclosed as Annexure 1) 2. After obtaining the assent of the Hon'ble Governor of Meghalaya on 14th July, 2009 the ....
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....ve the appointment of the Chancellor vide letter dated 17.11.2009. The second reminder dated 09.12.2009 was sent to the Officer on Special Duty to the Govt. of Meghalaya, Education Department and it reads as follows:- "CMJ FOUNDATION Ref. No. CMJC/Univ/SHG/09/36 Date: 09.12.2009 To, Shri. W. Khyllep, MC Officer on Special Duty to the Govt. of Meghalaya Education Department, Govt. of Meghalaya, Shillong. Ref No. EDN.142/2009/33 dated 30th Nov. 2009 Sub: Appointment of the Chancellor of the CMJ University. Sir, With reference to the above, it may be mentioned that the first Chancellor is the only competent authority to implement the provision regarding the establishment of an Endowment Fund as per Section 41(1) of CMJ University Act No. 4, 2009. In view of the above and in pursuance of the provisions of the section 14.1 & section 40 of the CMJ University Act, the Secretary of the CMJ Foundation vide its letter No. cmjf/univ/shg./09/26 dated 03.08.2009 recommended the name of Mr. C.M. Jha, Chairman, CMJ Foundation for approval of appointment of the First Chancellor of the CMJ....
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....may be assumed that the Governor has accorded his approval for functioning of the university and also the appointment of the first Chancellor of CMJ University. Since how we have received the copy of the communication received by the Government from the Hon'ble Governor of Meghalaya, wherein certain clarifications were sought for by him on the following issues: 1. Whether the CMJ University has complied with the UGC's norms and guidelines? In reply to the aforesaid query, we would like to inform your good self that without and appointment of the Chancellor of the University and without constitution and approval of the Board of Governors, etc. how CMJ University will function as there is no provision in the Act in respect of appointment of a Protem Chancellor and/or Vice Chancellor. Therefore, in order to fulfill the norms and guidelines prescribed by UGC and other conditions, we need the appointment and approval of the first Chancellor as per section 14(1) of the CMJ University Act, 2009. It needs to be mentioned here that from the date of publication of the CMJ University Act 2009 (No. 4 of 2009) in the Gazette of Meghalaya after due ass....
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....ces we do hope that we have clarified all the queries which have been sought for by the Hon'ble Governor of Meghalaya. Therefore, we most respectfully request your kind self to look into the matter very sympathetically and send the nomination of one State representative and one educationist in order to start functioning of CMJ University for the larger interest of the student community of the State of Meghalaya and for which act of your kindness we are duty bound and shall ever remain grateful. We assure your kind self to abide by the norms and guidelines of UGC as well as all the provisions contained in the CMJ University Act, 2009. Awaiting an early response from your kind self. Thanking you, Yours faithfully, Sd/- (Govind Jha) Secretary CMJ Foundation Copy to: 1. Deputy Secretary to Hon'ble Governor of Meghalaya for kind information. 2. Hon'ble Chief Justice, Government of Meghalaya, for kind information. 3. Hon'ble Minister, Education Department, Government of Meghalaya, for kind information. 4. Principal Secretary, Education Department, Governmen....
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....rector of Higher and Technical Education, Meghalaya, Shillong is nominated as State representative and Shri. T. Marak, Retired Director of Elementary & Mass Education, Meghalaya, Shillong as Educationist to the Board of Governors of the CMJ University. The above has the approval of the competent authority. Yours faithfully, Sd/- Under Secretary to the Government of Meghalaya, Education Department No. EDN.142/2009/69-A Dated Shillong, the 16th July, 2010. Copy to: 1. The Director of Higher & Technical Education, Meghalaya, Shillong. 2. Shri. W. Khyllep, MCS, Director of Higher & Technical Education, Meghalaya, Shillong for information. 3. Shri. T. Marak, (Retired) Director of Elementary & Mass Education, Meghalaya, Shillong for information. By order etc., Under Secretary to the Government of Meghalaya, Education Department" 9. The UGC vide its letter dated 25.11.2010 informed the CMJ University that the CMJ University had been established by an Act of State Legislature of Meghalaya as State Private University and is empowered to award degrees as specified by the UGC under S....
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....required to follow the UGC (Establishment and Maintenance of Standards in Private University) Regulation, 2003 (copy enclosed) & other Regulations issued from time to time and posted on UGC website www.ugc.ac.in. You are also requested to send the information in the prescribed format (copy enclosed) for inspection purpose as per UGC Regulation referred to above within one month from the date of receipt of this letter. Encl: As above. Yours faithfully, Sd/- (Uma Bali) Under Secretary Copy to: 1. The Education Secretary, Government of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhavan, New Delhi - 100001. 2. The Secretary (Education) Govt. of Meghalaya, Addl. Sectt. Bldg. I.G.P. Point, Meghalaya, Shillong - 793001. 3. Publication Officer, UGC, New Delhi for posting on Website. 4. JS (RO)/DS(SU)/DS(NRCB), New Delhi. (Dr. Mahender Kumar) Section Officer" 10. Further, in order to have clarity with regard to the nature of the CMJ University and degree granted by the CMJ University, information under the Right to Information Act....
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....deline, 2009. 5. Are all courses approved by State Govt. and UGC? 3 & 5 May be asked for from the University concerned in this regard 6. Its Doctoral/Degree/Diploma Programmes are approved for govt. job as well as for hither studies. the degree/diploma programmes have been obtained under regular mode in the main campus with the approval of concerned statutory council/body. 7. Is CMJ University Meghalaya eligible to offer Engineering Courses (B.Tech. M.Tech., B.E., M.E.), M.Phil. Ph.D. Whether these degrees are valid in India and abroad? Your application has been transferred to AICTE, New Delhi under Section 6(3) of RTI Act, 2005. 8. Whether CMJ University Meghalaya is DEC approved or Not? Your application has been transferred to DEC, New Delhi under Section 6(3) of RTI Act, 2005. 9. Is Ph.D. degree from CMJ University Meghalaya is equally valid comparing to any central or State Govt. University? And if Ph.D. holder from Private University who is doing job in Govt. Section and getting promotion based on Ph.D. then Private University Ph.D. degree will be eligible for any type of promotion in Govt. Sector? If Ph.D. degree is pursued as per UGC Regulati....
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....J University has not established any off campus counseling centres run by the CMJ University. With regard to collaboration, it was submitted that in terms of Section 7(e) of the said Act of 2009, collaboration has been made with apex E-learning Technologies Ltd. Bangalore for promoting Industrial Collaborating education and research programme as an innovative initiative. The petitioner No. 1 further stated that the details of courses approved by the academic council of the CMJ University. The petitioner No. 1 in clear and categorical terms stated that there is a provision of allotting Ph.D. Guideship to the qualified faculty members of the CMJ University. 12. The Visitor sent one more letter dated 11.04.2013 pointing out for the first time that the appointment of Chancellor of the CMJ University is irregular stating that it has not been approved by the Visitor and time was given to furnish the information by 22.04.2013 positively. It may be relevant to mention that in the letter of the petitioner No. 1 dated 01.04.2010 in clear terms it was mentioned that if the approval was not granted, it will be considered as deemed approval. Thereafter, there was no communication whatsoever ....
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....vernor of Meghalaya lodged a complaint on 26.04.2013 against the CMJ University and its officials to the Director General of Police, Meghalaya, Shillong and requested for investigation into the functioning of the CMJ University in Meghalaya. On the same day, the Visitor sought more information. It is the further case of the petitioners that criminal case was lodged with the object to ensure that officials of the CMJ University would not be in a position to provide the desired information. The registration of the FIR clearly shows that the State authorities had been used to prosecute the innocent and hapless officials and members of the CMJ University. It is the further case of the petitioners that the Visitor without having any authority in law passed an order in the form of letter dated 30.04.2013 that many irregularities had been committed by the CMJ University and no fresh admission of students shall be undertaken by the CMJ University till the compliance of the instructions given therein and till appointment of the Chancellor in accordance with Section 14(1) of the said Act of 2009. The said letter dated 30.04.2013 of the Principal Secretary to the Governor of Meghalaya i.e. Vi....
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....the Annual Reports to the Visitor in violation of Section 45(3) of the CMJ University Act, 2009. 7. CMJ University has also acted in contravention of Section 52 of the CMJ University Act, 2009 in respect of maintenance of standards and other related matters applicable to Private Universities. In view of the above, the Governor of Meghalaya, in his capacity as the Visitor of the CMJ University issued the following directions under the Section 13(3)(b) of the CMJ University Act, 2009 for immediate compliance: 1. The CMJ University shall recall/withdraw all the degrees awarded so far and publish this fact in national and local newspapers at their own cost. 2. The CMJ Foundation shall submit a fresh proposal for appointment of the Chancellor along with the correct Bio-data of the candidate recommended and supporting document. 3. The CMJ University shall frame rules and procedures for admission into the M.Phil and Ph.D. degree programmes, allocation of supervisor, course work, evaluation, assessment and other related matters in accordance with the UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D. Degree) Regulation, 2009. ....
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....lor of the CMJ University. Sir, I am enclosing herewith a copy of letter No. Cmjf/univ/shg/09/26 dated 3rd August, 2009 regarding recommendation the name of Shri Chandra Mohan Jha as the first Chancellor of the CMJ University by the Governor who is the visitor of the said University. Before approval of the same, the Governor desires to have the clarifications on the following issues: (1) Whether the CMJ University has complied with the UGC's norms and guidelines? (2) Whether the University has fulfilled the conditions laid down in Section 3(1) and 4(1) & 4(2) of the CMJ University Act? (3) Whether all other conditions required before appointment of Chancellor has been fulfilled by the University and (4) Whether the Govt. is satisfied that all conditions for setting up Public University has been fulfilled. The same may kindly be sent to the undersigned at the earliest for information of the Governor. Yours faithfully Sd/- (K.G. Choudhury) Deputy Secretary to the Governor of Meghalaya" 12. The further case of the appellants/writ petitioners projected in th....
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.... interfere with the impugned order/letter dated 30.04.2013. 16. Accordingly, this writ appeal is dismissed." 15. The petitioners filed SLP being SLP (Civil) No(s). 19617/2013 against the said judgment and order of this Court dated 31.05.2013 in the Supreme Court. The CMJ University in view of the pending cases before the Apex Court and also in view of the fact that the police had arrested its officials Registrar, Deputy Registrar, Director etc. was handicapped in providing the information sought for by the Visitor. The learned counsel for the CMJ University approached the police for providing the copies of seized documents and also approached the Chief Judicial Magistrate for the purpose of seeking compliance of the directives of the Visitor on 10.06.2013. A request was also made to the Visitor vide letter dated 10.06.2013 seeking time to comply with the direction without prejudice to the rights and contentions of the University by the counsel of CMJ Foundation. The Visitor in haste, without giving adequate opportunity held that the University had acted in contravention of various statutory provisions and also held that there was criminal liability on the part of the Un....
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....gle Judge refusing to quash order dated 30.4.2013 passed by Principal Secretary to the Governor of Meghalaya under Section 13(3)(b) of the CMJ University Act, 2009 (for short, 'the 2009 Act') was dismissed. During the pendency of the special leave petitions, the Visitor-cum-Governor, Meghalaya made comprehensive recommendations on 12.6.2013 for dissolution of the University on the grounds of mismanagement, maladministration, indiscipline and failure in the enforcement of the objectives of the University, apart from criminal liability. The note containing the decision of the Visitor including the recommendations made by him reads as under: "1. I have perused the letter dated 10th June, 2013 from Shri S.P. Sharma, Advocate for CMJ Foundation with reference to the Directives issued by this office vide letter No. GSMG/CMJU/82/2009/311 dated 24th May, 2013. It is observed that the CMJ Foundation/University has moved the Court of Chief Judicial Magistrate seeking copies of documents for the purpose of compliance of the Directives, after much delay, on 10th June, 2013 the last date fixed for compliance of the Directives. It thus appears that the CMJ Foundation is....
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....ross violation of the standards and norms set by the University Grants Commission and other regulatory bodies, CMJU Act 2009, and Meghalaya Private Universities (Regulations of Establishment and Maintenance of Standards) Act 2012. This is even more serious an offence; it constitutes a breach of trust in addition. Even with the legally appointed Chancellor no university can be allowed to function with such fraudulent intent and vitiate the academic environment, disgrace the institution of higher learning and bring disrepute to the state where it is established. 6. On the basis of facts and circumstances available it is concluded that the university committed the following grave irregularities: i) The University functioned from 17/10/2010 with the self-appointed Chancellor without the approval of the Visitor in terms of Section 14(1) of the CMJ University Act, 2009 on the presumption of "deemed approval" of the Visitor. This is not legally valid and the position has been affirmed by the order dated 16th May, 2013 of the Hon'ble High Court of Meghalaya which has further been upheld by the Division Bench of the Hon'ble High Court of Meghalaya in their order da....
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....cation programme outside the boundaries of Meghalaya and outside India. These actions are in gross violation of UGC Regulations and guidelines. viii) Total students enrolled by CMJ University as per information submitted by the University in 2010-11:176, 2011-12: 469, 2012-13: 2734. All these admissions are illegal as all its actions are db initio void in absence of a legally appointed Chancellor. x) The University has violated Section 45(3) and Section 46(4) of the CMJ University Act, 2009 by not submitting the Annual Report and the Annual Accounts/Balance Sheet and the Audit Report to Visitor. xi) Even after the initiation of actions by the Visitor the University continued to mislead the students and public by press statements. It issued a news paper advertisement in the Shillong Times on 22nd April, 2013 claiming it has not yet awarded any PhD degree to any of the students enrolled from the State of Assam which is false. Again it issued advertisement in newspaper on 2nd May and 16th May, 2013 in matters of holding Convocation and Award of PhD Degree knowing full well that there can be no Convocation without the legally appointed Chancellor and that the....
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.... State Govt. issued Show Cause bearing No. EDN.110/2013/33 dated 12.11.2013 (Annexure-33 to the writ petition) to the petitioners, which reads as follows:- "GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT No. EDN.110/2013/33 Dated Shillong, the 12th November, 2013. From: Shri.B.S. Sohliya, Deputy Secretary to the Govt. of Meghalaya, Education Department. To: Vice Chancellor/Registrar, CMJ University, Laitumkhrah, Shillong. Subject: Show cause against the on mismanagement, mal administration, in-discipline, failure in the accomplishment of the objectives of CMJ University. In pursuance of orders of the Hon'ble Supreme Court dated 13/9/2013, the CMJ University is asked to show cause why action under Section 48 of the 2009 Act may not be taken for the following alleged failures:- 1. Whereas, on the basis of facts and records the University functioned from 7.10.2010 with a self appointed Vice Chancellor without approval of the Visitor as required under Section 14(1) of the CMJ University Act, 2009 (hereinafter referred to as the 'Act'). 2. Whereas, the University has not submitte....
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....9 and whereas the norms laid down by the U.G.C. not followed. 9. Whereas, B.Ed degree are awarded through Distance Mode without the requisite approval of the regulatory bodies and without affiliation. The B.Ed. degrees awarded by the CMJ University were held to be invalid in the eye of Law by the order dated 24th May, 2013 of the Hon'ble High Court of Gauhati. 10. Whereas, the Shillong Engineering and Management College was de-affiliated by NEHU from academic session 2011-2012. This College, which was in existence prior to the sanction for establishment of the CMJ University, cannot be affiliated with the CMJ University. While the fate of the students of this College was already uncertain in view of the said de-affiliation, the College continued to make admissions by misleading the students that the degrees will be issued by the CMJ University. 11. Whereas, the CMJ University continued to mislead the student and public by incorrect press statement through Newspaper advertisement in the Shillong Times on 22nd April, 2013, 2nd May, 2013 and 16th May, 2013 regarding the Ph.D. Degree, convocation etc. 12. Whereas, CMJ University have failed to co....
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....rization of Establishment and Maintenance of Standards) Act, 2010 within 10 (ten) days of receipt of this Notice as to why action should not be taken against the CMJ University as per law. Yours faithfully, Sd/- Joint Secretary to the Govt. of Meghalaya, Education Department" 18. In response to the second show cause notice dated 24.01.2014, the Registrar of the CMJ University submitted the show cause reply with the assurance that if any direction are issued in future for rectification of any alleged shortcoming, the management system of the University would follow them accordingly and in earnest. The State Govt. without issuing direction to the management system of the University to correct the mismanagement and mal administration, if any, and also without affording reasonable opportunity as provided under Sub-Sections (2) & (3) of Section 48 issued the impugned order dated 31.03.2014 for dissolution of the CMJ University with immediate effect. The main ground for challenging the impugned order dated 31.03.2014 is that the State respondents did not comply with the mandatory requirement as provided under Sub-Sections (2), (3) and (4) of Section....
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.... 326 (CB)]. It is settled rule of interpretation of statute that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all. In other words, where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. For this settled principle of law, it would be sufficed to refer to the decisions of the Apex Court in (i) Patna Improvement Trust v. Laxmi Devi & Ors (4 Judges): AIR 1963 1077; (ii) State of Gujarat v. Shantilal Mangaldas & Ors (Constitution Bench): 1969 (1) SCC 509 and; (iii) Hukum Chand Shyam Lal v. Union of India & Ors (4 Judges): (1976) 2 SCC 128. The relevant portion of Para 12 of the AIR in Patna Improvement Trust case (Supra) reads as follows:- "12........A combined effect of the said two principles may be stated thus: a general Act must yield to a special Act de....
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....n of mismanagement, mal administration, in-discipline, failure in accomplishment of the objectives of the University and economic hardships in the management of the University. This is the case of the petitioners. It is the further case of the petitioners that the impugned show cause notice dated 12.11.2013 cannot be treated as a direction of the State Govt. to be followed by the petitioners as contemplated under Section 48(2) of the said Act of 2009. Learned Advocate General appearing for the State respondents contended that sufficient directions had been issued by the Visitor by referring to the earlier directions discussed in the aforesaid paras before passing the said judgment and order of the Apex Court dated 13.09.2013. On plain perusal of Section 48(2) of the said Act of 2009, it is clear that it is not the Visitor who is to issue direction but it is the State Govt. to issue the direction under Section 48(2) of the said Act of 2009. The show cause notice is the one for asking explanation as to why action of punitive nature should not be taken against a person to whom show cause notice had been issued. The learned senior counsel appearing for the petitioners by referring to t....
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....entation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution. The High Court, in our opinion, was perfectly justified in quashing the impugned circular." Para 14 of the SCC in Shekhar Ghosh's case (Supra) reads as follows:- "14. A post-decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion." Paras 15 & 16 of SCC in K.I. Stephard's case (Supra) read as follows:- "15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the ....
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....urt vide judgment and order dated 31.05.2013 passed in WA No. (SH) 16/2013 had already held that there cannot be legal friction of deemed approval of the Chancellor under Section 14(1) of the said Act of 2009. However, as the appointment of the Chancellor is subject to the approval of the Visitor, the appointment of the Chancellor is good so long it is not disapproved. In the present case, the Trustees of the CMJ Foundation as early as 29.07.2009 had adopted the resolution appointing Shri. Chandra Mohan Jha as Chancellor of the University in terms of Section 14(1) of the said Act of 2009 and the petitioner No. 1 sent the letter dated 03.08.2009 to the Commissioner & Secretary, Education Department, Govt. of Meghalaya, seeking approval of the Visitor for appointment of the Chancellor i.e. Shri. Chandra Mohan Jha. Several reminders had been sent to the Visitor to approve the appointment of the Chancellor. As the Visitor did not object to the appointment of the Chancellor, the State Govt. issued a Notification dated 17.06.2010, that the Governor of Meghalaya is pleased to accord sanction for the establishment of the CMJ University and the CMJ University had started functioning with Sh....
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....sufficed to refer to the decisions of the Apex Court in (i) U.P. Avas Evam Vikas Parishad & Anr v. Friends Coop. Housing Society Ltd. & Anr: 1995 Supp (3) SCC 456; (ii) High Court of Judicature for Rajasthan v. P.P. Singh & Anr: (2003) 4 SCC 239 and; (iii) Ashok Kumar Das & Ors v. University of Burdwan & Ors: (2010) 3 SCC 616. Para 6 of the SCC in U.P. Avas Evam Vikas Parishad's case (Supra) read as follows:- "6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. : 1986 (1) SCC 264, considering the distinction between "special permission" and "general permission" "previous approval" or "prior approval" in paragraph 63 held that "we are conscious that the word 'prior' or 'previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act". Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may v....
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....ns precedent to the exercise of a power have been fulfilled may not debar the Court in a given case from considering the question whether, in fact, those conditions have been fulfilled. And, a fortiori, the Court may consider and decide whether the authority concerned has applied its mind to really relevant facts of a case with a view to determining that a condition precedent to the exercise of a power has been fulfilled. If it appears, upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object or purpose of a power, so that the result is that the exercise of power could only serve some other or collateral object, the Court will interfere. The Apex Court in Ranjit Thakur v. Union of India & Ors : (1987) 4 SCC 611 held that Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not ....
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....tc. The distinctive features of some of the recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality" and the third "procedural impropriety". The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. 27. It is now well settled that judicial review of the administrative action/quasi judicial orders passed by the Govt. is limited only to correcting the errors of law or non compliance with/breach of fundamental procedural requirements which may lead to manifest injustice. The Apex Court in Kalinga Mining Corporation v. Union of India & Ors : (2013) 5 SCC 252 held that it is by now well settled that judicial review ....
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....s of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. ii) Irrationality, namely, Wednesbury unreasonableness. iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time" The aforesaid judgment has been followed again and again. It was clearly observed in the said judgment that where the Court comes to the conclusion that the administrative decision is arbitrary, it must interfere. However, the Court cannot funct....