AMITAVA LALA, J. - (1.) THIS writ petition has been made praying inter alia as follows: "1. issue a writ order or direction in the nature of certiorari quashing the order impugned dated 17.9.2005 passed by Hon'ble Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur (Annexure No. 1 to the writ petition). 2. issue a writ order or direction in the nature of mandamus restraining the respondents authority not to interfere in the working of the petitioner as Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur till his tenure i.e. 26.5.2007 and permit the petitioner to work as Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur. 3. issue a writ order or direction in the nature of mandamus restraining the respondent authorities from any proceeding of Search Committee for appointment of new Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur. 4. issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. 5. to award the cost of this petition of the petitioner. 6. issue writ, order or direction in the nature of certiorari calling for the record of appointment order dated 28.11.2005 issued by the Chancellor in regard to appointment of proposed respondent no. 5 and quashing the impugned order dated 28.11.2005."
(2.) AT the inception Mr. R.N. Singh, learned Senior Counsel appearing for the respondent nos. 2 and 5, raised an objection by saying that by the passage of time the writ petition has become infructuous, therefore, the same is liable to be dismissed. According to Mr. Singh, term of the Vice-Chancellor has already expired, therefore, there is no scope to replace the petitioner as Vice- Chancellor of Veer Bahadur Singh Purvanchal University, Jaunpur (hereinafter in short called as 'University') even if he succeeds. We have gone through the interim order passed earlier on 11th November, 2005, whereby the Division Bench after giving direction to the parties for exchange of affidavits was pleased to direct that the appointment of the Vice-Chancellor in the meantime, if any, shall be abide by the result of the writ petition. We have called upon Mr. R. Venkataramani, learned Senior Counsel appearing for the petitioner, to give reply to the said objection at first. Mr. Venkataramani, in turn, contended that he is not inclined to obtain such order from this Court but since the order impugned passed by the Chancellor on 17th September, 2005 seems to be stigmatic in nature for his position and career, therefore, though no order could be passed to replace the writ petitioner in the University as Vice-Chancellor yet the writ petition can not be said to be totally infructuous. Thus, according to us, hearing will be confined only with regard to Prayer No. 1 and not other prayers, which are related to the continuance or replacement of the writ petitioner in the post of Vice-Chancellor of the University. Mr. Venkataramani contended before this Court that only fault on the part of the writ petitioner is that he has started Distance Education Programme of the University as a Vice-Chancellor. But the Vice-Chancellor can not be held responsible for such action. It is a collective decision taken by him as Chairman of the Executive Council to enure the benefits of the students. If it seems to be irregular or contrary to law, the programme can not be approved. But for such action, a Vice-Chancellor can not be put on the dock and the disciplinary action resulting to removal from the service with various stigmatic remarks can not be made by the Chancellor. The post of the Vice-Chancellor is very high in the office of a University. Therefore, a Chancellor, before passing any extreme order, should consider all these aspects. In other words, a Vice-Chancellor can be removed from the office only when he is individually involved in any charge contemplated under Section 12 (12) of the Uttar Pradesh State Universities Act, 1973 (hereinafter in short called as the 'Act') and to come to a definite conclusion a regular enquiry is needed. Section 12 (12) of the Act is a charging section. Distance Education is a policy of a University to render education. The University is empowered to make ordinance in this regard in accordance with the aforesaid Act. Therefore, if any contravention is there, it can not be treated as an individual act of the Vice-Chancellor for his punishment. The decision of the Vice-Chancellor, being Chairman of the Executive Council, may not be regular but that can not be treated to be an illegality in the eye of law, for which the petitioner as a Vice-Chancellor can be removed from the service. There is a difference between illegality and irregularity. The University has to take a pragmatic view for the benefit and welfare of the students which under no circumstances can be said to be an illegality to attract the provisions of Section 12 (12) of the Act. Indira Gandhi National Open University is opened for the Distance Education Programme by way of correspondence. Such policy has become successful, but when the Universities have started their distance education course, the same are being criticized. Action on the part of the University about distance education course can not be said to be forbidden by law or fraud or alike. It can not be done on a day but it takes several years in its implementation. There is no basic difference between correspondence course and distance course.
(3.) MR . R.N. Singh, learned Senior Counsel, and Mr. D.K. Arora, learned Additional Advocate General, jointly and severally contended before this Court that, in effect, there are two charges against the Vice-Chancellor; one is financial irregularity regarding collection of fund of Rs. 42 lacs, and other is conducting distance education course without prior approval of the State and/or the Chancellor. Correspondence course and distance education course are not same or similar. Correspondence course is directly conducted by the University, whereas distance education course is conducted by the University through middleman. About 89 distance education centres were opened by this University not only in the States and in the Country but also in a neighbouring country i.e. Nepal. Vice-Chancellor has no power to make ordinance. Ordinance can only be made by the State Government. Whatever argument has been made by the learned Senior Counsel appearing for the petitioner about the distance education is the personal opinion of the petitioner, there might be different opinion also. Therefore, when different views are possible, writ jurisdiction of the Court can not be invoked. There is no scope of judicial review. The writ petition is liable to be dismissed also on such ground. In reply, Mr. Venkataramani contended that under the direction of a learned Single Judge, a general enquiry has been initiated, which under no circumstances can be contemplated as a regular enquiry under Section 12 (12) of the Act. General enquiry means, an enquiry to form an opinion by the authority i.e. the Chancellor to conduct a regular enquiry. Wrongful understanding can not be the ground of removal. So far as the charge of misappropriation of Rs. 42 lacs is concerned, a Vice-Chancellor under no circumstances can be held to be involved in such misappropriation. It has to be dealt with by the Accounts Department. However, learned Single Judge of this Court in its judgement and order dated 27th June, 2005 passed in Civil Misc. Writ Petition No. 45363 of 2005 (Ashwani Kumar Shukla and others Vs. Hon'ble Kuladhapati, Narendra Dev University of Agriculture and Technology, Raj Bhavan, Lucknow, Uttar Pradesh and others) observed that in view of such situation a collective decision has been taken in respect of all the Universities on a general overall view. The individual cases of each university, therefore, required further examination as to whether the Universities had framed any proper rule in accordance with the Act to enable them to run the distance education programmes. After having realized the problem, the Chancellor's office issued a notice on 06th June, 2005. In such circumstances, learned Single Judge of this Court held as follows: "34. In view of the aforesaid observations and keeping in view the seriousness of the nature of the present litigation, it is hereby required that his Excellency the Chancellor will proceed with the matter as per the letter dated 6.6.2005 and take a decision in the matter as expeditiously as possible preferably within a period of 6 weeks from today. The Vice Chancellors of the respective Universities are directed to cooperate with the Chancellor and submit whatever material is required for consideration by the Chancellor as soon as possible without any further delay. 35. The directions issued by the Chancellor in the impugned order shall attain finality only after fresh orders are passed as directed herein above and no penal action shall be taken against the students of the study centers/coordinators who are the petitioners before this Court till then. His Excellency- the Chancellor shall proceed to decide the matter and it is expected that the decision shall be taken by a speaking and reasoned order in respect of individual Universities in the light of the observations made herein above. The orders impugned shall be subject to the orders passed by His Excellency- the Chancellor hereinafter." From the Act we find that certain provisions are relevant for the purpose. Relevant parts of Section 7 of the Act are as follows: "7. Powers and duties of the University.-- ..... ..... .... .... ..... ..... .... .... (4) ..... ..... .... ..... (c) have pursued a course of study by correspondence whether residing within the area of the University or not, and have been registered by the University, subject to such conditions as may be laid down in the Statutes and Ordinances as external candidates; or ..... ..... ..... ..... ..... .... ..... ..... (7) to grant such diplomas to, and to provide such lectures and instructions for persons, not being students of the University, as the University may determine; (8) to co-operate or collaborate with other Universities and authorities in such manner and for such purposes as the University may determine; ..... ...... ...... ..... ..... ..... ...... ....." Sub-sections (6), (7) and (8) of Section 8 speak as follows: "8. Visitation.-- .... .... .... ...... ..... ....... ..... ...... ..... ...... ...... (6) If the University authorities do not within a reasonable time, take action to the satisfaction of the State Government, the Government may, after considering any explanation which the University authorities may furnish, issue such directions as it may think fit, and the University authorities shall be bound to comply with such directions. (7) The State Government shall send to the Chancellor a copy of every report of an inspection or inquiry caused to be made under sub-section (1) and of every communication received from the Vice-Chancellor under sub-section (5) and of every direction issued under sub-section (6) and also of every report or information received in respect of compliance or non-compliance with such direction. (8) Without prejudice to the provisions of sub-section (6) if the Chancellor on consideration of any document or material referred to in sub-section (7) of this section including any report of an inquiry held before the commencement of this Act, is of opinion that the Executive Council has failed to carry out its functions or has abused its powers, he may, after giving it an opportunity of submitting a written explanation, order that in supersession, of the said Executive Council, an ad hoc Executive Council, consisting of the Vice-Chancellor and such other persons not exceeding ten in number as the Chancellor may appoint in that behalf including any member of the superseded Executive Council, shall for such period not exceeding two years as the Chancellor may from time to time specify, and subject to the provisions of sub-section (11), exercise and perform all the powers and functions of the Executive Council under this Act. ...... ....... ....... ..... ...... ....... ....... ....." Section 12 (12) of the Act says that: "12. The Vice-Chancellor.-- ...... ...... ...... .... ...... ...... ..... .... (12) If in the opinion of the Chancellor, the Vice-Chancellor wilfully omits or refuses to carry out the provisions of this Act or abuses the powers vested in him, or if it otherwise appears to the Chancellor that the continuance of the Vice-Chancellor in office is detrimental to the interest of the University, the Chancellor may, after making such inquiry as he deems proper, by order, remove the Vice-Chancellor. ...... ..... ...... ..... ...... ..... ...... ....." Section 13 (1) (b) of the Act prescribes as under: "13. Powers and duties of the Vice-Chancellor.--(1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall-- ...... ..... ..... .... (b) give effect to the decisions of the authorities of the University; ...... ..... ..... .... ..... ..... ..... ...." Section 15 of the Act says as follows: "15. The Finance Officer.-- (1) There shall be a Finance Officer for the University, who shall be appointed by the State Government by a notification published in the Official Gazette, and his remuneration and allowances shall be paid by the University. (2) The Finance Officer shall be responsible for presenting the budget (annual estimates) and the statement of accounts to the Executive Council and also for drawing and disbursing funds on behalf of the University. (3) He shall have the right to speak in and otherwise to take part in the proceedings of the Executive Council but shall not be entitled to vote. (4) The Finance Officer shall have the duty-- (a) to ensure that no expenditure, not authorised in the budget, is incurred by the University (otherwise than by way of investment); (b) to disallow any proposed expenditure which may contravene the provisions of this Act or the terms of any Statutes or Ordinances; (c) to ensure that no other financial irregularity is committed and to take steps to set right any irregularities pointed out during audit; (d) to ensure that the property and investments of the University are duly preserved and managed. (5) The Finance Officer shall have access to and may require the production of such records and documents of the University and the furnishing of such information pertaining to its affairs as in his opinion may be necessary for the discharge of his duties. (6) All contracts shall be entered into and signed by the Finance Officer on behalf of the University. (7) Other powers and functions of the Finance Officer shall be such as may be prescribed." Relevant part of Section 26 of the Act is as follows: "26. The Finance Committee.-- The Finance Committee shall consist of-- (a) the Vice-Chancellor; ..... ..... .... ... ..... ..... .... ... (e) the Finance Officer who shall also be the Secretary of the Committee. ..... ..... ..... ... (2) The Finance Committee shall advise the Executive Council on matters relating to the administration of property and funds of the University. It shall, having regard to the income and resources of the University, fix limits for the total recurring and non-recurring expenditure for the ensuing financial year and may, for any special reasons, revise during the financial year the limits of expenditure so fixed and the limits so fixed shall be binding on the Executive Council. ..... ..... ...... .... ..... ..... ...... ...." Relevant portion of Section 50 of the Act is as under: "50. Statutes how made.-- The First Statutes of the University shall be made by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statutes are not so made, the Statutes as in force immediately before the commencement of this Act, in so far as they are not inconsistent with the provisions of this Act, shall, subject to such adaptations and modifications whether by way of repeal, amendment or addition as may be necessary or expedient, as the State Government may, by notification in the Gazette provide, continue in force, and any such adaptation or modification shall not be called in question. ...... ..... ...... ..... (1-B) Until the First Statutes of the Purvanchal University are made under this section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide. ...... ...... ...... ...... ...... ...... ...... ......" Relevant portion of Section 51 of the Act speaks as below: "51. Ordinances.-- (1) Subject to the provisions of this Act and the Statutes the Ordinances may provide for any matter which by this Act or the Statutes is to be or may be provided for by the Ordinances. (2) Without prejudice to the generality of the provisions of sub-section (1), the Ordinance shall provide for the following matters, namely-- ...... ...... ....... ....... ....... ...... ...... ...... (h) all matters relating to correspondence courses and private candidates; ....... ..... ....... ....... ....... ..... ....... ......." Section 52 of the Act speaks as under: "52. Ordinance how made.-- ...... ...... ...... ...... ....... ...... ...... ...... ....... ...... (4) The Executive Council shall not have power to amend any draft proposed by the Academic Council under sub-section (3) but may reject it or return to the Academic Council for reconsideration either in whole or in part together with any amendments which the Executive Council may suggest. (5) All Ordinances made by the Executive Council shall have effect from such date as it may direct and shall be submitted as soon as may be to the Chancellor. (6) The Chancellor may, at any time signify to the Executive Council his disallowance of such Ordinances other than those referred to in clause (c) of the proviso to sub-section (3) and from the date of receipt by the Executive Council of intimation of such disallowance, such Ordinances shall become void. (7) The Chancellor may direct that the operation of any Ordinance other than those referred to in clause (c) of the proviso to sub-section (3) shall be suspended until he has an opportunity of exercising his power of disallowance. An order of suspension under this sub-section shall cease to have affect on the expiration of one month from the date of such order." ;