Bharat Ratna Indira Gandhi College of Engg. vs State of Maharashtra

These Appeals have been filed against the impugned

judgment and order dated 03rd December, 2008 passed by the

High Court of Judicature at Bombay, Bench at Nagpur in Writ

Petition No.2216 of 2006.

At the very outset we may note that in fact there was no

petition before the High Court on which the impugned order

was passed. The High Court took suo motu action on the

basis of some information which has not been disclosed

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in the impugned order. The cause title in the impugned

judgment reads:

"Court on its own motion vs. State of Maharashtra through its Secretary, Education Department."

None of the colleges in respect of which the impugned

order was passed were made respondents, nor was notice

issued to them, nor were they heard by the High Court.

To say the least, this was a strange procedure adopted by

the High Court.

In our opinion, such suo motu orders, without even a

petition on which they are passed, are ordinarily not

justified nor sustainable. Ordinarily, there must be a

petition on which the Court can pass an order. In our

opinion, the High Court was not justified in taking suo

motu action in this case. Judges must exercise restraint

in such matters.

Moreover, we have perused the impugned order and we are

of the opinion that the directions contained in paragraph 7

of the impugned judgment were wholly unwarranted as they

amount to judicial legislation.

It appears that many private unaided Degree Colleges in

Maharashtra did not have permanent Principals, and this is

what motivated the High Court to pass the impugned order.

By the impugned order, the High Court has directed that

if the colleges fail to fill in the post of Principal by

31st May, 2009, the University will issue orders in the

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first week of June, 2009 prohibiting admissions in the

Colleges concerned.

In our opinion, no such direction could have been validly

given by the High Court. If there is no permanent

Principal, obviously the Acting Principal shall officiate as

Principal, but that does not mean that in the absence of the

permanent Principal, admissions to the college should be

prohibited. There is no statutory rule that in the absence

of a permanent Principal admissions in the Colleges cannot

be made. Thus, the High Court has indulged in judicial

legislation, which is not ordinarily permissible to the

Courts vide Divisional Manager, Aravali Golf Club & Another

vs. Chander Hass & Another (2008) 1 SCC 683.

Also, none of these Colleges were made parties before the

High Court, and hence the aforesaid direction is violative

of the principles of natural justice.

Accordingly, we allow these appeals and set aside the

impugned order of the High Court. No costs.

However, we direct that the process for filling up the

posts of Principal may continue in accordance with law, and

should be done expeditiously.

.........................J. [MARKANDEY KATJU]

NEW DELHI; .........................J. MARCH 28, 2011 [GYAN SUDHA MISRA]