DAULAT RAM COLLEGE SOCIETY & ANR vs. UNIVERSITY OF DELHI & ANR

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 30.11.2017
Pronounced on: 12.01.2018

+ LPA 550/2017 & CM Nos.29731-29733/2017 & 38053/2017

DAULAT RAM COLLEGE SOCIETY & ANR ..... Appellants

versus

UNIVERSITY OF DELHI & ANR ..... Respondents

+ LPA 551/2017 & CM Nos.29759-29760/2017 & 38054/2017

THE HINDU EDUCATIONAL TRUST ..... Appellant

versus

UNIVERSITY OF DELHI & ANR ..... Respondents

+ LPA 563/2017 & CM Nos.30408-30411/2017

THE INDRAPRASTHA EDUCATIONAL TRUST
..... Appellant

versus

UNIVERSITY OF DELHI & ANR ..... Respondents

Present: Ms. Diya Kapur with Ms. Akshita Sachdeva &
Ms. Sugandha Batra, Advs. for appellants in LPA
Nos.550/2017 & 551/2017.
Mr. G.K. Mishra & Mr. Raunaq Dutt, Advs. for
appellant in LPA No.563/2017.
Mr. V.P. Singh, Sr. Adv. with Mr. Mohinder J.S.
Rupal, Mr. Prang Newmai & Ms. Slomita Rai, Advs.
for University of Delhi.

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CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SANJEEV SACHDEVA

S. RAVINDRA BHAT, J.
1. In these three appeals, the correctness of a common judgment of a
learned Single Judge, upholding the requirement (contained in a
resolution of the Executive Council of the Delhi University [“the
University” hereafter] dated 03.11.2012 - hereafter called “the impugned
resolution”), stipulating that each affiliated college (such as the petitioner
colleges, hereafter “the colleges”) had to send 50% names in excess of
the approved strength of their respective governing council/executive
council membership (spelt out in the trust deed, or memoranda of
association, as the case may be). The impugned resolution embodied a
previous resolution of 21.08.1975 (Resolution No. 289). The impugned
judgment repelled the challenge to such stipulation, made on the ground
that the decision and norm were ultra vires the Delhi University Act,
(“the Act” hereafter), the University‟s statutes and ordinances, and
Article 19 (1) (c) and (g) of the Constitution of India.
2. It is unnecessary to elaborately recount all, but the essential facts.
The appellants, i.e. the Hindu Educational Trust, the Indraprastha
Educational Trust and the Daulat Ram Educational Society set up
colleges for imparting education. Each such trust or society had its
governing rules and regulation, which stipulated the governing structure,
defined its membership, tenure of governing council members, number of
members, their qualifications, etc. It is an undisputed fact that in
accordance with Statute 30 (1)(C) of the Statutes, framed by the Delhi
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University, the colleges‟ arrangements providing for appointment of
members to the Governing Body were approved by the University. It is
also not disputed that in accordance with Ordinance XVIII, the University
approved the members of the appellants‟ colleges governing council
consistently. The University‟s Executive Council framed model Rules for
composition and mode of appointment of governing bodies of the various
colleges through Executive Council Resolution No. 66 dated 27.04.1963;
Executive Council resolution of 23.04.1966 and Resolution No. 320 (a)
dated 19.11.1966. These model Rules were not given effect to. The
constitution, composition, term of office of members and Chairmanship
of the Governing Body is to be in accordance with Statute 30 read with
Ordinance XVIII of the Delhi University Act.
3. The University, by Executive Council Resolution No. 289 dated
21.08.1975 prescribed guidelines for appointment of members of
trusts/societies as nominees on the governing body of the colleges. Under
these guidelines, the trusts are to forward a panel of names to the
University, consisting of at least 50% more names than the required
numbers. The colleges‟ grievance was that the guidelines for the year
1975 never had any statutory force and were not binding on them. They
complained that the said guidelines were contrary to Statute 30 (1)(C),
which provides that the Governing Body shall consist of not more than 20
members and that the rules relating to composition of the Governing
Body should conform to the Statutes and Ordinance of the University and
the conditions of the Government grants to the colleges. The statute
nowhere stipulates that the trust/society should forward a panel of names
containing 50% more names than the required or stipulated number.
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4. The appellants approached the court, stating that the Vice-
Chancellor constituted a committee to recommend modalities/guidelines
for nomination of members on the Governing councils resulting in the
colleges being asked to comply with the guidelines and send 50% names
over and above the stipulated governing body/council strength, from
which the final names were to be approved by the University. This move,
however, was not carried through; the colleges state that the existing
practice – prevailing for about 40 years, of sending the required number
of names (i.e. for instance, if the governing council‟s strength in a given
case is 10, sending only 10 names, as opposed to 15 names, stipulated by
the guidelines) was continued. The petitioner/appellants state that the
prevailing situation continued, till 2009 when the University started
insisting that the guidelines, stipulated in Resolution 289 dated
21.08.1975, ought to be adhered to. Ultimately, the impugned resolution
was made on 02.11.2012, whereby the appellant societies/trusts were
required to adhere to the stipulation that the names to be sent for
approval, for membership of the respective governing council, ought to
be the stipulated number plus 50%, from amongst which, the University
would approve the requisite names. The Appellants through Writ Petition
No. 54/2012 challenged the said Executive Council Resolutions. During
the pendency of the said writ petition, the University passed Executive
Resolution dated 03.11.2012 being Resolution No. 51 of 2012 which
inter alia provided as follows:
(a) “The trust will forward a panel of names to the
University containing not less than 50% more names
than the required number, and
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(b) No member shall serve on the Governing Body of a
Delhi Government College ordinarily for more than two
consecutive terms, and on the Governing Body of a Trust
College for more than five terms; However, on the
request of the Trust, the Vice Chancellor may extend the
term of not more than two members on the Governing
Body beyond five years subject to the satisfaction of the
Vice Chancellor that such member(s) have made
valuable contribution to the Governing Body in their
earlier tenures.”

5. The three societies/trusts, which are before this court, as appellants,
sought relief, contending that the said resolution and the University‟s
insistence that the guidelines should be complied with, is contrary to law.
According to them, the guidelines were ultra vires the Statute and
Ordinances of the University; they could not have been imposed upon
them. The colleges also stated that the guidelines were ultra vires the
Delhi University Act, 1922 (hereafter “the Act”). Furthermore, they
stated that the guidelines, especially violated Article 19 (1) (c) and (g) of
the Constitution of India. They relied upon T.M.A. Pai Foundation v State
of Karnataka (2002) 8 SCC 481; Bramho Samaj Educational Society v
State of West Bengal (2004) 6 SCC 224; Bijoe Emmanuel v State of
Kerala (1986) 3 SCC 615; State of Madhya Pradesh v Thakur Bharat
Singh AIR 1967 SC 1170; Kharak Singh v State of U. P. (1964) 1 SCR
332. It was also argued that besides, the core right of management
through the individuals chosen by the societies was taken away and that
the right to carry on the profession of establishing and managing the
institutions, under Article 19 (1) (g) was infringed.

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6. The University resisted the writ petitions, pointing out that the
resolutions merely filled a gap in the existing statutes and ordinances and
did not supplant or exceed any statutory condition. The University
particularly repelled the argument about ultra vires, set up by the
colleges, vis-à-vis Statute 30 and the provisions of the Act. It was argued
that the right to form an association did not assure the right to achieve the
objects for which the association is formed. The University also stated
that the right to set up an association, meant that once exercised, the
membership and the college set up was distinct from the body set up in
exercise of the right, i.e. the trust or society. If the society then set up a
college, which it desired recognition of, or affiliation to a University, the
college had to comply with the conditions prescribed. The right to
association, said the University, did not extend to the right to affiliation.
Furthermore, the colleges had accepted the major part of the resolution
dated 03.11.2012, impugned by them; therefore, they could not complain
that their right to association was infringed merely if they were asked to
send more names (which were chosen by them ) for the purpose of the one
year term of the college‟s governing council. The resolutions were made
in larger public interest of overall excellence of colleges.
7. The learned Single Judge, by the impugned judgment, held that the
right to form an association does not include the right to seek affiliation
of the colleges. It was also held, relying on the judgment reported as All
India Bank Association National Industries Tribunal AIR 1962 SC 17
that the right (to form associations, guaranteed by Art.19 (1) (c)) extends
only to establishment or formation of the association, but does not extend
or guarantee the achievement of its underlying objects. The Supreme
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Court had held that the right only:
“extends to the formation of an association and insofar
as the activities of the association are concerned or as
regards the steps which the union might take to achieve
the purpose of its creation, they are subject to such laws
as might be framed and the validity of such laws is to be
tested by reference to the criteria to be found in clause
(4) of Art.19 of the Constitution”.

8. The learned Single Judge also accepted the University‟s
contentions that the impugned resolutions were conceived in public
interest, to achieve excellence in imparting education. They did not, said
the judgment, usurp the right to choose the membership of the governing
council of every college- they continued to possess the power to choose
all the names, including the excess names to be sent for approval. Given
that the power to approve included the power not to approve (which is an
intrinsic part of Statute 30), the guidelines merely supplemented the
existing statutes and ordinances, governing the University. The learned
Single Judge accepted a challenge to the impugned resolution, to the
extent it restricted the right of society‟s or trust, to re-nominate members
to their governing councils, to only five terms. It was held that this
violated Ordinance XVII:
“Ordinance XVIII, inasmuch as, the said Clause, as
reproduced above, even though states, that the term shall
be for one year, but does not restrict, the renomination of
a Member(s) in subsequent years, which suggest, such
Member(s) can be renominated for any number of years,
without restriction, whereas, the impugned stipulation
restricts the period to five years. If that be so, till such
time a necessary amendment is effected in the Clause
3(1) of Ordinance XVIII, the stipulation in the impugned
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resolution could not have been issued by way of an
instruction/guideline through a resolution.”
Contentions of parties

9. The appellants argue that the nature of power in terms of Statute
30, precludes the University from making norms (or resolutions) or
amending them so far as the management of colleges is concerned. The
University could only approve rules made in pursuance of Statute
30(1)(C) during affiliation of the College with the University, and that the
legitimate authority and right to make rules lies with the college itself,
which is governed by the rules so made by it. Thus, according to the
colleges, the University‟s involvement was restricted to ensuring that
such rules were in conformity with the Statutes, Ordinances and
Regulations as well as provisions of the Act, and to approve the said rules
at the time of granting affiliation to the College. Since the University
approved the rules relating to composition of the Governing Bodies at the
stage of affiliation, no further interference could be sought.
10. Ms. Diya Kapoor counsel for the appellant Hindu College trust,
argued that the Memoranda of Association of the trusts and societies,
which set up colleges, were approved and revalidated. The university
could only approve the personnel of the Governing Body so long as they
were appointed in compliance with the Ordinances, Statutes, Act and
Rules and that power did not possess the power of selection . The power
of selection sought to be exercised is plainly unsupported by the language
of the statute. Thus, the University cannot pick and choose and select
names of individuals who are to be part of governing bodies of colleges
(which they are seeking to contend is the power to approve/disapprove).
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Moreover, the source of this alleged power is plainly untraceable to any
of provisions of the Act, Statute or Ordinance and the University has not
been able to pin point the source of such power conferred upon itself.
11. Counsel states that Statute 30 provides the Executive Council only
the power of "approval" and not the power of "selection" of the personnel
of the Governing Body. The University‟s power is confined to approval
only. Yet, by requiring that the list of nominees forwarded contain 50%
more names than the required number, the impugned resolution
containing the guidelines seek to confer discretion upon the Executive
Council in deciding which of the ten nominees to select out of 15 (say, in
a given case). The colleges submitted that in conferring such power upon
itself, the University acted ultra vires the Act. They argued that the courts
recognize the distinction between the power of approval and power of
appointment and no authority is vested with such power, when expressly
power is granted in respect of another aspect. Statute 30(1)(C) according
to the college was superseded by the University‟s guidelines in approving
the members of the Governing Body of the colleges. That is the choice of
every institution and intrinsic to the right to association, enshrined under
Article 19 (1) (c). Ordinance XVIII (3)(1) only stated that "The members
of the Governing Body, other than the Principal, shall hold office for a
period of one year and shall be eligible for reappointment or re-election" .
12. Ms. Kapoor and other counsel appearing for the colleges, argued
that the right to establish and manage any college or educational
institution is an intrinsic part of the right to carry on any vocation,
guaranteed under Article 19 (1) (g) of the Constitution of India. They
relied on TMA Pai Foundation (supra) and submitted that the Supreme
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Court had frowned upon regulations or norms which would effectively
erode the choice of the institution. By insisting that nominations in excess
of the membership of every college‟s governing council should be made
and the University would pick who it deems appropriate, the element of
carrying on the management, in accordance with the institution‟s wishes
is compromised. Thus, if a college forwards names, all the excess (five)
additional names along with 5 which the college refers (out of 10) may be
finally accepted. There are no guidelines for acceptance or rejection of
names. The mere circumstance that the University exercises such power
is no guarantee that it would do so for relevant considerations.
13. It is argued that the power, under Statute 30, to approve or
disapprove a scheme can be exercised once. The question of issuing a
resolution embodying norms, despite the approval of the scheme, under
Statute, clearly points to exceeding statutory power. Counsel argued that
the impugned resolution cannot be imposed without amending the
Statute, given the mandate of Section 29 of the Act. Counsel submitted
that the impugned judgment, to the extent it holds to the contrary and
finds that the resolution amounted to executive instructions, which merely
supplemented existing guidelines or rules, is erroneous in law.
14. Learned counsel argued that in the present case, the insistence by
the University to approve the names out of a larger pool of names, is
nothing but selection and in the process of nominating, the governing
council‟s role is reduced to that of a screening and recommending body.
It is submitted that this substantially erodes functional autonomy of the
college concerned.
15. The appellants‟ counsel also urged that the resolutions, to the
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extent they violate Article 19 rights are unenforceable, because they are
not authorized by law. It is submitted that the condition requiring
nomination of 50% more names than required for the governing body is
neither contained in any provision of the Act, nor the statutes framed
therein. Therefore the law did not authorize it. Counsel, in this context,
relied upon the judgments of the Supreme Court in Kharak Singh (supra);
Bijoe Emmanuel (supra) and Union of India v Naveen Jindal (2004) 2
SCC 510, for the proposition that without the provision of enacted law, a
mere executive measure or instruction cannot restrict the enjoyment of a
fundamental right, in this case, the exercise of freedom under Article 19
(1) (g).
16. It was submitted, besides, that the right to carry on academic and
management activities through a governing body entirely of its choice, is
a core right that cannot be taken away through a mere resolution. In this
context, it was submitted that the autonomy to the societies, assured by
Section 29 of the Act, could not be taken away; the resolution was
consequently ultra vires the Act.
17. The University submits and its senior counsel, Mr. V.P. Singh
argues that though citizens have a fundamental right to association and to
carry on a vocation or occupation, that right does not extend to the
attainment of the object for which the society or trust is formed. The right
to form and manage the parent society may be the fundamental right of its
members. The society has also the right to pursue any activities that it
may so desire, including the setting up of an educational institution. Yet,
the college or institution so set up by the society has no right to be
affiliated to the University . To establish a college is distinct from its
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affiliation to a University. Mr. V.P. Singh relied on Ahmedabad St.
Xaviers College v. University of Gujarat , 1975(1) S.C.R. 17 in support of
the proposition.
18. Learned counsel argued that the right to carry on a vocation or
occupation or to set up an association has to be distinguished also from
the right to achieve the objects for which the association or business is set
up. The right to form association guaranteed under Article 19 does not
extend to the fulfillment of every object of an association. It is also
argued that as there is no fundamental right to be granted affiliation to the
University, colleges should comply with the norms of the University to be
entitled to continued affiliation. Nothing prevents a college from seeking
affiliation from any other University, if they are aggrieved by the
conditions prescribed by a University.
19. The University argued that Statute 30 (C) reflects overriding power
of the Executive Council which provides that "Colleges and other
institutions within the limits of State of Delhi, may be admitted to such
privileges of the University as the Executive Council may decide...." . The
statute provides that the Governing Body of the college shall be approved
by the Executive Council and the rule relating to composition and
personnel of the Governing Body and those relating to other matters
affecting the management of the College are to be approved by the
University‟s Executive Council. Since no rules were framed in this
regard, there was a need for the resolution - approving the guidelines -
impugned in this case. The University also argued that the impugned
resolution merely supplements the Statutes and the Ordinances.
Administrative instructions are valid and can fill gaps and supplement the
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statutory rules. The Executive Council acted within its powers in passing
the impugned resolution, which contains no infirmity; it is not ultra vires
Statute 30.
20. Learned counsel for the university also argued that the colleges had
complied with major part of the impugned resolution passed by the
Executive Council of the respondent University. The petitioner has
grievance only with respect to Clause B 2(a) and Clause B 4(e). All other
clauses have been duly accepted, except for the above two parts of clause
2 & 4. In one case, the petitioner Society on one hand has averred that
earlier two resolutions dated 21.08.1975 (Executive Council resolution
No.239) and 11.02.2003 (Executive Council resolution No.138) have
been superseded by the resolution passed by the Executive Council on
03.11.2012 (Executive Council Resolution No.51), but at the same time
the petitioner society is seeking quashing of only one of earlier
resolutions dated 21.08.1975 and the impugned resolution dated
03.11.2012. The said impugned resolution is applicable to 20 colleges
affiliated to the University of Delhi and only the Trust/Societies of the
three colleges have impugned the said resolutions. In these
circumstances, the relief as sought by the petitioners cannot be granted.
The petitioners cannot accept a part of the resolution and claim benefits
under it and at the same time repudiate the remaining part of the
resolution and refuse to comply with the same. Counsel states that the
petitioners admit categorically that the university has the power to
approve the names of the nominees forwarded by the petitioners for
appointment as Members of the Governing Body, total 10 in number. The
power to approve includes the power to disapprove any name of the
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nominees forwarded by the society/trust. If the society or trust sends only
10 names then it does not leave any scope to approve, choose or select the
names by the University. Therefore, the resolution of the Executive
Council seeking 50% names in excess of the required number i.e. 15
nominees out of which the University shall select 10 names to be
members of the governing body of the college concerned is valid and
proper. Furthermore the term of such members of governing bodies is one
year w.e.f. their date of appointment. If only 10 names are forwarded of
which few are not approved (by the University) the process of sending
fresh names would lead to undue delay, detrimental to the affairs of the
College and students. The impugned resolution is salutary and
wholesome.
Analysis and Conclusions
21. Before undertaking a detailed analysis of the contentions urged, it
is essential to extract the relevant provisions. Section 29 of the Delhi
University Act, reads as follows:

"29(1) On the commencement of the Delhi University
(Amendment) Act, 1943, Statutes of the University shall
be those set out in the Schedule. (2) The Executive *
Council may, from time to time, make new or additional
Statutes or may amend or repeal the Statutes:

Provided that the Executive Council shall not make,
amend or repeal any Statute affecting the status, powers
or constitution of any authority of the University until
such authority has been given an opportunity of
expressing an opinion in writing on the proposed
changes, and any opinion so expressed shall be
considered by the Executive Council.
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Provided further that except with the prior concurrence
of the Academic Council, the Executive Council shall not
make, amend or repeal any Statute affecting all or any of
the following matters, namely:

XXXXX XXXXX XXXXX

(vii) the extent of the autonomy which a College may
have and the matters in relation to which such autonomy
may be exercised."


22. The relevant statutes read as follows:

“6(1) The Executive Council shall, subject to the control
of the Court, have the management and administration of
the revenue and property of the University and the
conduct of all administrative affairs of the University not
otherwise provided for.

(2) Subject to the provisions of the Act, the Statutes and
the Ordinances, the Executive Council shall in addition
to all other powers vested in it, have the following
powers, namely:

XXXXX XXXXX XXXXX

(xiii) to exercise such other powers and to perform such
other duties as may be conferred or imposed on it by the
Act or the Statutes."

XXXXX XXXXX XXXXX

Section 30 reads as follows:
“30. Subject to the provisions of this Act and the Statutes,
the Ordinances may provide for all or any of the
following matters, namely:
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(a) the admission of students to the University and their
enrolment as such;
(b) the courses of study to be laid down for all Degrees,
Diplomas and Certificates of the University;
(c) the Degrees, Diplomas. Certificates and other
Academic distinctions to be awarded by the University,
the qualifications for the same, and the means to be taken
relating to the granting and obtaining of the same;
(d) the fees to be charged for courses of study in the
University and for admission to the Examinations,
Degrees and Diplomas of the University;
*
(g) the maintenance of discipline among the students of
the University;
*
(i) the special arrangements, if any, which may be made
for the residence, discipline and teaching of women
students, and prescribing for them of special courses of
study;
(j) the giving of religious instruction;
(l) the management of Colleges and other Institutions
founded or maintained by the University;
(m) the supervision and inspection of Colleges and other
Institution admitted to privileges of the University; and
(n) all other matters which by this Act or the Statutes are
to be or may be provided for by the Ordinances.”
23. Statute 30 (C) which is relevant for the present purpose, reads as
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follows:

XXXXX XXXXX XXXXX

“30…..(C) Colleges and other Institutions within the
limits of State of Delhi may be admitted to such
privileges of the University as the Executive Council may
decide on the following conditions, namely:
(i) Every such college or Institution shall have a
regularly constituted Governing Body, consisting of not
more than twenty persons approved by the Executive
Council and including, among others, at least two
representatives of the University and at least three
representatives of the teaching staff of whom the
Principal of the college or Institution shall be one. The
rules relating to the composition and personnel of the
Governing Body, and those relating to other matters
affecting the management of the college shall conform to
the Statutes and the Ordinances of the University and the
conditions of the Government Grant to College. Such
rule and the personnel will require the approval of the
Executive Council.

(ii) XXXXX XXXXX XXXXX”

24. It was contended on behalf of the University that the Appellants
being Societies and trusts, were not citizens of India and could not allege
infringement of Article 19(1)(g) of the Constitution. The learned Single
Judge upheld this argument, reasoning that the right to associate or carry
on business, once exercised by forming the association or setting up the
commercial activity, cannot be said to be infringed if the regulation
concerned (in this case, the resolutions requiring nomination of additional
names for approval) were for the larger public good, and good
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governance. The learned Single Judge also relied on judgments of the
Supreme Court to hold that the right to carry on trade or set up an
association did not guarantee the right to achieve the objectives for which
the association is set up or the trade carried on. In this regard, R.C.
Cooper v Union of India AIR 1970 SC 564, held, with respect to
maintainability of proceedings complaining of violation of fundamental
rights under Article 19 (of corporate entities such as societies/companies)
as follows:
“A measure executive or legislative may impair the
rights of the company alone, and not of its shareholders;
it may impair the rights of the shareholders not of the
Company; it may impair the rights of the shareholders as
well as of the company. Jurisdiction of the Court to grant
relief cannot be denied, when by State action the rights of
the individual shareholder are impaired, if that action
impairs the rights of the Company as well. The test in
determining whether the shareholder's right is impaired
is not formal: it is essentially qualitative: if the State
action impairs the right of the shareholders as well as to
the Company, the Court will not, concentrating merely
upon the technical operation of the action, deny itself
jurisdiction to grant relief.”

25. The Supreme Court therefore held that the fundamental rights of
shareholders as citizens are not lost when they associate to form a
company/society/ association. The above case has been followed in
Bennett Coleman & Co v. Union of India 1973 AIR 106, where it was
held as follows:
“In the Bank Nationalisation case this Court held the
statute to be void for infringing the rights under Articles
19(1)(f) and 19(1)(g) of the Constitution. In the Bank
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Nationalisation case, the petitioner was a shareholder
and a director of the company which was acquired under
the statute. As a result of the Bank Nationalisation case
(supra) it follows that the Court finds out whether the
legislative measure directly touches the company of
which the petitioner is a shareholder. A shareholder is
entitled to protection of Article 19. That individual right
is not lost by reason of the fact that he is a shareholder of
the company. The Bank Nationalisation case has
established the view that the fundamental rights of
shareholders as citizens are not lost when they associate
to from a company. When their fundamental rights as
shareholders are impaired by State action their rights as
shareholders are protected. The reason is that the
shareholders' rights are equally and necessarily affected
if the rights of the company are affected. The rights of
shareholders with regard to Article 19(1) (a) are
projected and manifested by the newspapers owned and
controlled by the shareholders through-the medium of the
corporation. In the present case, the individual rights of
freedom of speech and expression of editors, Directors
and shareholders are all exercised through their
newspapers through which they speak. The press reaches
the public through the Newspapers. The shareholders
speak through their editors- The fact that the companies
are the petitioners does not prevent this Court from
giving relief to the shareholders, editors, printers who
have asked for protection of their fundamental rights by
reason of the effect of the law and of the action upon
their rights. The locus standi of the shareholder
petitioners is beyond challenge after the ruling of this
Court in the Bank Nationalisation case (supra). The
presence of the company is on the same ruling not a bar
to the grant of relief.”

26. Therefore, RC Cooper (supra) has settled, and thereafter the
judgment in Bennett Coleman (supra) have established that fundamental
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rights of the citizens associating to form a company/society/association
cannot be undermined only because it is the company/society/association
that approaches the court, as long as the individual shareholders or
association members also approach it. There is no bar on the jurisdiction
of this court to give relief to the citizens who have asked for protection of
their fundamental rights by reason of the effect of the action upon their
rights. It is also seen that the second appellant in LPA 550/2017 is a
citizen of India, claiming a violation of her fundamental rights. The plea
of violation of fundamental rights including Article 19(1) (c) and 19 (1)
(g), urged by the appellants is, therefore, maintainable.

Plea of ultra vires
27. Section 29 of the Act provides that the Executive Council shall not
make any rules affecting the autonomy of the college and the matters in
relation to which such autonomy may be exercised . In this case, the
appellant societies‟ power to nominate trustees or members to the
governing body exists in terms of their respective trust deeds/memoranda
of association. It is mainly the governing body that has any control over
the administration and management of the college. The appellant
societies‟ scheme (i.e. trust/memoranda/constitution) had been approved
the power to nominate 10 members as their representatives as they set up
and promoted the colleges. Any encroachment of this power invades the
autonomy of the college as the governing body is the root of autonomy in
any affairs of the college and matters of its governance. Any restriction
on the composition of the governing body would affect the autonomy of
the college as the Rules and regulations of the colleges clearly provide for
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nomination of 10 members of the governing body by the respective
appellant societies/trusts. If any regulation of this power was to be done,
the provision of the statute, i.e. Section 29 clearly stated that it was to be
done through statutes. For this reason, the impugned resolutions are not in
conformity with Section 29 of the Delhi University Act.
28. The University contends that the power of approval provided for in
Statute 30(1)(C)(i), includes the power to decline approval. The learned
Single Judge held that the power of disapproval being there in Statute
30(1)(C)(i), even before the issuance of the impugned resolution, it must
be held that the stipulation that the Society shall forward additional 50%
names, is in conformity with Statute 30 (1)(C)(i). The learned Single
Judge found merit in the argument that the object behind the decision as
stated/canvassed by the University is if only ten names are forwarded by
the Society, and out of which few are not approved by the Executive
Council, then fresh names shall be required to be submitted by the
petitioner leading to undue delay and laches, which shall be detrimental
to the College and Students.
29. It is undeniable that the power of approval includes the power to
decline approval. However, this cannot translate into a power to pick and
choose from a set of options, which would amount to „selection‟. The
statute does not empower the University to „select‟ the trustees, but only
to approve them. Approval is merely for the satisfaction of the University
that the nominations and appointment are in compliance with the Act,
rules, statute, etc. The approval can be declined by the University only on
the basis of non-conformation to the set standards and for no other
reason. The Statute does not give any discretion to the University to pick
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and choose from a set of options.
30. The resolution prescribing sending 50% additional names would
result in giving the choice to the University to „choose‟ the names of the
persons who can be part of the governing body. The argument (of the
University) that the additional names shall also be proposed by the
Society itself or that it will solve undue delays, is not tenable as the
power to choose from a set of names takes away the right of the society
or trust, to nominate the „most suitable‟ persons. Every institution has the
right to nominate its “best team”. If there are any issues germane to the
suitability of a few (maybe three) of such names, the University may not
approve them. In refusing approval too, the University should indicate
valid reasons, germane to the issue of governance of the institution. If the
institution is compelled to send the requisite number of individuals‟
names plus 50% of that limit, its right to have a governing body of its
“best team” is diluted, if not completely denuded, because the University
can exercise its right to veto five out of the best ten names and choose the
balance from the “B team”. This is not conducive to the autonomy
guaranteed by Section 29 of the Act. It would not be unreasonable to
assume that highly qualified people would not be inclined to offer
themselves for nomination when there is a likelihood of rejection, which
could be detrimental to the wellbeing of the educational institution.
31. Therefore, a power to approve or disapprove cannot be interpreted
to be a power to choose by the University. The Executive Council could
not therefore pass a resolution making it mandatory to send 50%
additional names as that would give them the power to choose/appoint,
which is not otherwise provided for by Statute 30(1)(C)(i). The
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Resolutions are therefore not in conformity with Statute 30(1)(C)(i). This
Court is also of the opinion that the rationale which persuaded the
learned Single Judge to hold that the condition limiting five terms for
nominations to governing bodies of colleges were invalid and
unenforceable without amendment of statutes, applies equally to the
condition requiring nomination of the total number of membership of the
governing body, with an additional 50% of such membership for the
University‟s approval.

Is the resolution contrary to the rights of the petitioners under Article 19
of the Constitution of India?
32. The next question is whether the rights of the societies to govern
the association in the manner chosen by them (under Article 19 (1) (c)),
and the right to carry on an avocation or occupation (Article 19 (1)(g))
infringed in any manner. The learned Single Judge here had rejected the
appellant‟s claim, holding that once a group of individuals forms a
society or company, their right to association, or its right to carry on trade
(under Article 19 (1)(g)) cannot be said to be infringed, if laws or
regulations concerning the activity are made, because the right to
association does not carry with it the right to achieving the objective for
which the association is set up, in the first place.
33. The judgments in Kharak Singh (supra), Bijoe Emmanuel v. State
of Kerala 1986 (3) SCC 619 and Union of India v. Navin Jindal 2004 (2)
SCC 510 are authorities for the proposition that any attempt of the state to
restrict any fundamental right has to be through authority of law. This
means that the restrictive condition is valid, if sanctioned by law.
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In Jindal, the position was summarized in the following manner:
"13. (3) (a) "Law" includes any Ordinance, order bye-
law, rule, regulation, notification, custom or usage
having in the territory of India the force of law."
A bare perusal of the said provision would clearly go to
show that executive instructions would not fall within the
aforementioned category. Such executive instructions
may have the force of law for some other purposes; as for
example those instructions which are issued as a
supplement to the legislative power in terms of clause (1)
of Article 77 of the Constitution of India. The necessity as
regard determination of the said question has arisen as
the Parliament has not chosen to enact a statute which
would confer at least a statutory right upon a citizen of
India to fly a National Flag. An executive instruction
issued by the appellant herein can any time be replaced
by another set of executive instructions and thus deprive
Indian citizens from flying National Flag. Furthermore,
such a question will also arise in the event if it be held
that right to fly the National Flag is a fundamental or a
natural right within the meaning of Article 19 of the
Constitution of India; as for the purpose of regulating the
exercise of right of freedom guaranteed under Article 19
(1) (a) to (e) and (g) a law must be made.
In Kharak Singh vs. State of U.P. [AIR 1963 SC 1295],
this Court held :
"Though learned counsel for the respondent started by
attempting such a justification by invoking section 12 of
the Indian Police Act he gave this up and conceded that
the regulations contained in Chapter XX had no such
statutory basis but were merely executive or
departmental instructions framed for the guidance of the
police officers. They would not therefore be "a Law"
which the state is entitled to make under the relevant
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clauses (2) to (6) of Article 19 in order to regulate or
curtail fundamental rights guaranteed by the several sub-
clauses of Article 19 (1), nor would the same be a "a
procedure established by law" within Article 21. The
position therefore is that if the action of the police which
is the arm of the executive of the state is found to infringe
any of the freedom guaranteed to the petitioner the
petitioner would be entitled to the relief of mandamus
which he seeks, to restrain the state from taking action
under the regulations."
To the same effect are the decisions of this Court in State
of Madhya Pradesh v Thakur Bharat Singh [AIR 1967 SC
1170], Binoe Emmanuel & Ors v State of Kerala & Ors
[(1986) 3 SCC 619].”
In the present case, Section 29 and Statute 30(C) do not impose the
restriction, which is challenged in these proceedings. Indeed, the latter, i.e
Statute 30C clarifies that the total membership of any college‟s governing
council cannot exceed 20 and that of that 5 are to be representative of
certain classes, i.e. University nominees, teaching staff and Principal.
Therefore, the societies possess the unimpeded right to nominate the rest
(of not more than 15), subject to approval by the University. If the latter
wished to retain control to choose from amongst a larger group, there
should have been a clear justification for such stipulation, with guidelines
to regulate the power to choose, in the form of a statutory norm (such as
the Statute itself). Therefore, the impugned resolution, not being “law” i.e
either enacted by legislature, or tracing its source to it, but a mere fiat of
the University, cannot override the rights of the appellant societies.

34. Article 19(1)(c) guarantees the freedom of association to all
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citizens. However, Article 19(4) provides that the right to form
associations or unions can be limited by reasonable restrictions in the
form of an existing or new law made „in the interests of the sovereignty
and integrity of India, or public order or morality…‟.
The Supreme Court discussed the right to freedom of association in
relation to composition of membership of an association in the case of
Damyanti Naranga v Union of India 1971 AIR SC 966. In that case, the
Court considered the UP Sahitya Sammelan Act, 1956 which had
superimposed a newly created statutory body in the place of the Hindi
Sahitya Sammelan - a registered society. Therefore, the Sammelan was
now composed of existing members of the erstwhile society, and others
who became members without the consent of these original members. It
was held that since the original members did not decide the terms of
admission of new members, the statue violated the right to form an
association under Article 19(1)(c). The Court held:
“The Act does not merely regulate the administration of
the affairs of the Society, what it does is to alter the
composition of the Society itself as we have indicated
above. The result of this change in composition is that the
members, who voluntarily formed the Association, are
now compelled to act in that Association with other
members who have been imposed as members by the Act
and in whose admission to membership, they had no say.
Such alteration in the composition of the Association
itself clearly interferes with the right to continue to
function as members of the Association which was
voluntarily formed by the original founders. The right to
form an association, in our opinion, necessarily, implies
that the persons forming the Association have also the
right to continue to be associated with only those whom
they voluntarily, admit in the Association. Any law, by
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which members are introduced in the voluntary
Association without any option being given to the
members to keep them out, or any law which takes away
the membership of those who have voluntarily joined it,
will be a law violating the right to form an association. If
we were to accept the submission that the right
guaranteed by Art. 19 (1) (c) is confined to the initial
stage of forming an Association and does not protect the
right to continue the Association with the membership,
either chosen by the founders or regulated by rules made
by the Association itself, the right would be meaningless
because, as soon as an Association is formed, a law may
be passed interfering with its composition., so that the
Association formed may not be able to function at all.
The right can be effective only if it is held to include
within it the right to continue the Association with its
composition as voluntarily agreed upon by the persons
forming the Association.”

35. The learned Single Judge relied on All India Bank Employees‟
Association v. National Industrial Tribunal, (1962) 3 SCR 269 which held
that the right to form an association does not entitle the citizen or
individual or group forming the association a concomitant right to claim
that the objects for which the association is formed too is part of the
larger fundamental right to form association. The learned Single Judge
went on to hold that “ the said stipulations do not relate to/have a
bearing/effect the petitioners‟ existence as Societies or their right to carry
any profession or carry on any occupation, trade or business, rather they
relate to the procedure for nomination to the Governing Body and the
tenure of the Membership of the Governing Body of the Institutions run
by the petitioners.”

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36. In view of the above reasoning, the learned Single Judge refused to
engage with the impact of actions on the exercise of rights. In Damyanti
Naranga (supra) the Court considered the direct and indirect ways in
which freedoms could be impacted. The unwillingness of the Court to
assess the constitutionality of actions by considering whether the act in
question indirectly impacts the exercise of the freedom diminishes the
1
conception and utility of the right. In this case, the right to nominate
members as representatives of the Trust on to the governing body is part
of the fundamental right to form association of all the citizens forming the
society, as the very object of each of the societies‟ existence is to manage
the respective colleges which is done through the governing body.
37. This court is of opinion that the single judge overlooked the fact
that none of the colleges or societies claimed that their right to set up
associations or set up the college, in exercise of Article 19 (1) (c) or
Article 19 (1) (g) was per se impaired. The Supreme Court‟s decision in
the Bank Employees‟ Association (supra) merely held that the right to set
up a society does not automatically result in the assurance that the object
(of its formation) can be achieved; similarly the right to carry on a
business or vocation does not mean that there is a right to continue it, or
that its objective of profit is assured. In the context of the present case,
these rights mean that the society, which sets up the college, can
administer it, in accordance with its choice, provided it complies with
laws, that regulate the activity. Any restriction on 19(1)(c) should be
under Article 19(4) „in the interests of the sovereignty and integrity of
India or public order or morality‟ . In this case, there is no reasonable

1
The Oxford Handbook of the Indian Constitution, page 870.
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nexus between the restriction (to send 50% more names than the required
number, giving greater role to the state in deciding who forms the
governing body) and public order or morality. Regardless of whether the
restriction is “law” or not, there is no rationale for the University to
impose such a restriction which has an impact on the exercise of
fundamental rights of the Appellant-societies/trusts, and none such reason
or justification has been advanced by the University. There is no reason
or justification for a change given by the University. Therefore, such
condition is an unreasonable restriction on the rights of appellants, which
is not in the interests of the general public. Hence the said restrictions
cannot be imposed in accordance with Article 19(4) of the Constitution.
38. The right to govern is not a “concomitant” right, as the learned
Single Judge erroneously held. It is a part of the core right to set up the
college, and manage it. If the reasoning that persuaded the learned Single
Judge were to be upheld, it would be open to the executive to take over,
or take effective control, at least, of all private colleges, by resolving that
the right to nominate members to colleges‟ governing bodies is a mere
concomitant right and not a part of the right to association or right to
carry on a profession or vocation and that such resolutions are necessary
in the public interest.
39. As far as Article 19 (1) (g) is concerned, the following passage
from the judgment in T.M.A. Pai (supra) are decisive:
“50. The right to establish and administer broadly
comprises of the following rights:-
(a) to admit students:
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(b) to set up a reasonable fee structure:
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part
of any employees.
…..

The expression "education" in the Articles of the
Constitution means and includes education at all levels
from the primary school level upto the post-graduate
level. It includes professional education. The expression
"educational institutions" means institutions that impart
education, where "education" is as understood
hereinabove.
The right to establish and administer educational
institutions is guaranteed under the Constitution to all
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citizens under Articles 19(1)(g) and 26, to minorities
specifically under Article 30.

Other Aided Institutions
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73. There are a large number of educational institutions,
like schools and non-professional colleges, which cannot
operate without the support of aid from the state.
Although these institutions may have been established by
philanthropists or other public-spirited persons, it
becomes necessary, in order to provide inexpensive
education to the students, to seek aid from the state. In
such cases, as those of the professional aided institutions
referred to hereinabove, the Government would be
entitled to make regulations relating to the terms and
conditions of employment of the teaching and non-
teaching staff whenever the aid for the posts is given by
the State as well as admission procedures. Such rules
and regulations can also provide for the reasons and the
manner in which a teacher or any other member of the
staff can be removed.
*
All citizens have a right to establish and administer
educational institutions under Articles 19(1)(g) and 26,
but this right is subject to the provisions of Articles 19(6)
and 26(a). However, minority institutions will have a
right to admit students belonging to the minority group,
in the manner as discussed in this judgment.”
40. This court is of the opinion that members of the societies in these
cases will be left with no rights if the right to nominate trustees is
undermined or taken away from them. It practically impacts the exercise
of the right to freedom of association and the right to carry on the
profession or vocation, of administering an educational institution, if
those forming the society are imposed with an obligation to send 50%
additional names, even if the names are to be given by the appellants. The
mere circumstance that the additional names are to be given by the
Appellants does not mean their freedom of association or freedom to
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carry on a profession, through the governing body of their choice is
respected. These freedoms can be exercised meaningfully only when
citizens form and continue an association voluntarily with members they
choose to associate with and whom they want to involve in the
governance structure of the profession or vocation. The obligation to send
additional names implies that the University retains discretion to take
away the nomination of those who may have voluntarily joined the
association to be representatives of the Trust on the Governing Body. It
takes away the rights of the members of the Societies to choose the „most
suitable‟ members they would want to associate with as the 10 members
chosen by the University amongst the 15 names may not be the „most
suitable‟ as perceived by the Appellants. They would be 10 members
„most suitable‟ according to the choice of the University. The essence of
the right to form association is taken away when the composition of such
association is not entirely in the hands of the citizens so forming it.
41. In T.M.A. Pai (supra) the Supreme Court had observed that the
right to nominate, reserved through government policies and legislation,
in private institutions, violates the right of the society or trust and those
who set it up to govern it:

of aid by the University Grants Commission and cannot thus, object to an
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innocuous provision that requires nomination of 50% more names than
the requisite membership of the governing council, for approval. This
court is of opinion that the grant of aid, by a third party (and not the
University) ipso facto does not result in denuding the basic right of the
society to govern its institution in accordance with its choice. T.M.A Pai
(supra) too dealt with the extent of regulation of aided institutions, by the
state or public authorities and held that:

with respect to aspects of management such as selection of teachers,
standards of education, conditions of service of teaching and non teaching
LPA No.550/2017 & conn. matters Page 34 of 36


staff, etc. Necessarily, this regulatory inroad cannot extend to choosing
which individuals are to govern the college or educational institution.
Here, statute 30C in fact regulates the extent of membership of the
governing council of college, when it provides that such governing
councils would be “consisting of not more than twenty persons approved
by the Executive Council and including, among others, at least two
representatives of the University and at least three representatives of the
teaching staff of whom the Principal of the college or Institution shall be
one.” Therefore, the balance (after providing for two representatives of
the University and three of the teaching staff) i.e a maximum of 15
(which in most of the cases, is not more than 10- to be nominated by the
society in its discretion) are to be entirely nominated by the concerned
society. The insistence that instead of 10 names, 15 names are to be
provided, would considerably, if not entirely erode the right of the society
to be governed by a body comprising individuals selected by it. It is
therefore, held that the impugned resolution infringes the right of the
appellant societies under Article 19 (1) (g) of the Constitution of India.
Conclusions
44. For the foregoing reasons, it is held that the impugned resolution-
and the resolutions it seeks to enforce (i.e. requiring colleges to send 50%
more names for approval, over and above the maximum number
stipulated in their constitution/trust deed/memoranda of association) to
the University, is ultra vires Section 29 of the Act, Statute 30 of the
Statutes and violates Article 19 (1) (c) and (g) of the Constitution of
India. As such, the impugned resolution and other such resolutions are
not binding and enforceable upon the appellant societies and other
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similarly situated societies. The impugned judgment is accordingly set
aside; the writ petitions filed by the appellants are consequently allowed
in terms of the above directions but without any order on costs.


S. RAVINDRA BHAT
(JUDGE)




SANJEEV SACHDEVA
(JUDGE)
JANUARY 12, 2018
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