TANZEEM FATIMA Vs. ALIGARH MUSLIM UNIVERSITY

JUDGEMENT

(1.) BY means of this writ petition the petitioner has challenged the order/decision of the Executive Council dated 10.10.2013 in so far as it authorises the Vice Chancellor to take a final decision in relation to the disciplinary proceedings/inquiry against the petitioner. She has also challenged the subsequent decision taken by the Vice Chancellor on 15.3.2014 based on such authorisation by which the petitioner has been removed from the services of the University. The impugned orders have been challenged on various grounds. One of the contentions raised by the learned counsel for the petitioner was that the very authorisation by the Executive Council on 10.10.2002 in favour of the Vice Chancellor was patently illegal being against the letter and spirit of Statute 40 (3)(a) and (b) of the University, which are being quoted hereinunder : -

(2.) SRI Shashank Shekhar Singh, learned counsel for the University, has stated that as per his instructions, no counter affidavit is required to be filed in the case at this stage and the matter can be disposed of on the legal issue involved with a direction to take a fresh decision in accordance with law. On a careful reading of the provisions as aforesaid we find that though statute 44 empowers any officer or authority of the University to delegate his or its power to any other officer or authority or person under their respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers but, we find that the power vested under Statute 40(3)(a) and (b) is of such a nature as could not be delegated under statute 44, therefore, the latter statute has to be read and understood in a manner so as to carve out an exception for the exercise of power under statute 44. The responsibility to take a collective decision by a two -third majority of the members of the Executive Council present and voting requires actual voting and we have no doubt that such powers cannot be delegated under statute 44. Statute 44 open with the words "subject to the provisions of the Act and these Statutes", therefore, the provisions of statute 43 (a) and (b) will prevail and they do not lend themselves for delegation under statute 44.

(3.) IT is expected that while taking a fresh decision the Executive Council shall take a decision with due and proper application of mind and in an objective manner. We also make it clear that we have not considered the merits of the charges levelled against the petitioner.