TMI Blog2014 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature - if any liberty is given or privilege is extended, it is to the displaced employees, including the 1st respondent, but not to the colleges in which they earlier worked. Since Government made reemployment of the displaced teachers contingent on the existence of vacancies, Government later issued Ext.P-14 order creating supernumerary posts. The consequential orders, Exts. P-17 and P-2, do not differ much in the scope and ambit to conclude that they are in any way permissive in nature - Exts. P-11, P-17 and P-21 are peremptory and binding, subject to their validity. Statutory Scheme - Held that:- In the present instance, Government have created supernumerary posts and it being a college covered by Direct Payment Agreement, have agreed to pay the salary, without putting any financial burden on the appellant college. It has asked, nay directed, in terms of Section 56(7) of the Act, the appellant to reemploy its former employee, who has been made a victim of a collateral damage caused by certain judicial proceedings, in which he had essentially no say - It is fallacious to contend that always recourse shall be taken to regular recruitment from open market under all circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esistance takes myriad forms; it can be active or passive. He can lay a direct challenge or collaterally question the acts of Government, which, in his view, are not in consonance with the law of the land. On the other hand, the Executive is not a motionless monolithic; it is, in fact, a fine tuned administrative machine. Every official is a cog in the machine required to function as per the role assigned to him or her. Any malfunctioning of a cog in the machine, however small it is, throws the whole machine out of gear and renders it malfunctioning - In the present sentence, as has statutorily demonstrated above, the appellant is under the all pervasive control of the State and its manager is an official in terms of Article 12, as well as Article 226 of the Constitution of India Ipso facto, he cannot be allowed to ignore even void orders, without laying a proper challenge against them and justify his inaction and disobedience to binding administrative directives in the name of collateral challenge, by prejudging the purative voidness of the directive. Void Orders - Held that:- Unless a Court of law either set aside or declares an administrative instruction, direction or order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -6-1995. Soon thereafter, while the first respondent was under probation, Sree Sankaracharya University of Sanskrit, Kalady, ('the University' for brevity) appointed him as a Lecturer in Hindi through Ext. P-3 order dated 1-9-1995. The appointment of the first respondent in the said University is said to be in response to the application made by him before securing employment in the appellant college. 3. As a matter of better career prospects, the first respondent submitted Ext. P-4 application dated 20-9-1995 requesting the appellant Manager to grant leave without allowances for a period of two years with effect from 20-9-1995 so as to enable him to join duty in the University. Before he could get any response from the appellant, the first respondent, however, joined the University. As it turned out, the appellant, through Ext. P-5 dated 25-9-1995, declined to sanction the leave applied for by the first respondent. 4. On receipt of Ext. P-5 memorandum, the first respondent once again submitted Ext. P-6 application dated 4-10-1995 to the fourth respondent, reiterating his request for leave without allowances for a period of two years with a view to take up foreign ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are vacancies. 7. In the light of the above developments, the Registrar of the University sent Ext. P-10 letter dated 21-3-1997 to the first respondent, informing him that his services had been terminated and that, if he wish to avail himself of the benefit of Ext. P-11 Government Order, he must submit an application for onward transmission to the parent college, the appellant, by way of repatriation. At this juncture, the first respondent is stated to have addressed a letter on 17-4-1997 to the appellant enquiring about the vacancy position in the Department of Hindi, but he did not get any reply. The University, however, through Ext. P-12 dated 5-9-1997, terminated the first respondent's services with effect from 8-9-1997. 8. Stranded in the procedural wrangles, the first respondent sent Ext. P-13 letter dated 11-9-1997 to the appellant, referring to his earlier letter dated 17-4-1997 and Ext. P-11 Government Order dated 17-3-1997, requesting for permission to rejoin duty in the parent college, at the earliest. The appellant did not respond. 9. As it could be seen, on the strength of Ext. P-11 Government Order, though many Lecturers secured reappointment in their pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led O.P. No. 21638/2000 on 31-7-2000, assailing the inaction of the appellant in implementing the binding directives of the Government, namely, Exts. P-11 and P-14. LIS PENDENS DEVELOPMENT: 13. Pending disposal of the O.P., this Court, a learned Single Judge, issued an interim direction on 13-12-2005 to the appellant to consider the representations of the 1st respondent in Exts. P-15, P-16 and P-18 and pass appropriate orders thereon after affording him an opportunity of being heard. In compliance thereof, the appellant passed Ext. P-24 order dated 2-1-2007, rejecting the claim of the 1st respondent. 14. By amending the pleadings, the 1st respondent has also laid challenge against Ext. P-24 rejection order. THE IMPUGNED JUDGMENT: 15. The learned Single Judge has, on appreciation of the rival contentions, held that since the appellant, the fourth respondent therein, did not choose to challenge Exts. P-11, P-14 and other related Government Orders, he is bound to implement them. When the Government, the paymaster, have permitted the management to have a supernumerary post to accommodate the first respondent, it cannot be heard contending otherwise. The learned Single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 530, Ganga Pratap Singh v. Allahabad Bank Ltd. A.I.R. 1958 S.C. 293', Bharathidasan University v. All India Council for Technical Education (2001) 8 S.C.C. 676, Nawabkhan Abbaskhan v. State of Gujarat (1974) 2 S.C.C. 121, Union of India v. Arulmozhi Iniarasu (2011) 7 S.C.C. 397, Usman v. State of Kerala 2003 (1) K.L.T. 2 and Mamleshwar Prasad v. Kanhaiya Lal A.I.R. 1975 S.C. 907 and also the commentaries of Craig and de Smith on Administrative Law. 19. According to learned counsel for the appellant, since Exts. P-14, P-21 are in violation of the recruitment procedure established by law, the appellant college has rightly ignored them. It is the specific and repeated contention of the learned counsel that challenge against an executive order made by an authority bereft of power can be made directly or collaterally. 20. The learned counsel has further contended that the learned Single Judge has accepted the proposition in paragraphs 26 and 27 of the impugned judgment that there can be a collateral attack, even without a formal challenge directly. Having thus accepted the proposition, the learned Single Judge, contends the learned counsel, ought not have proceeded further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that beginning from 1997 till 2000, when 1st respondent filed the original petition, he went on making representations to the appellant, some of them being Exts. P-13, P-15, P-16 and P-18. The appellant, however, has not chosen to respond, at least by placing on record the reasons for its persistent refusal to follow the Government Orders. The learned counsel has drawn our attention to the fact that present writ appeal came to be filed only belatedly when 1st respondent filed a contempt petition against the appellant for not complying with the judgment of the learned Single Judge. 25. Placing reliance on Mohinder Singh Gill v. Chief Election Commissioner A.I.R. 1978 S.C. 851, the learned counsel for the 1st respondent has further contended that since the appellant has not provided any reasons for not obeying Exts. P-11 and P-14 either to the 1st respondent or to the Government at the earliest point of time, it cannot be allowed to supply reasons through counter-affidavits before this Court. In this regard, the learned counsel has also drawn our attention to Ext. P-24, which was passed by the appellant in compliance with an interim direction of this Court in the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efforts in 1997 to secure reemployment in his parent college, the appellant, on the strength of the binding directives of the Government, the paymaster and went on waging the legal battle for nearly a decade and half. Presently, pending the writ appeal, 1st respondent attained the age of superannuation in March 2014 and deemed to have retired from service. 29. The learned counsel for the 1st respondent has also sought to sustain Exts. P-11, P-14, P-17 and P-21 with statutory support under Sections 56, 62(2)(b), 77, 100 and 101 of the M.G. University Act. These provisions shall be referred to and discussed at a later stage of our adjudication. 30. Eventually, the learned counsel for the 1st respondent has assailed, what is in his view, the inadequacy of the judgment under challenge. According to the learned counsel, having held that the appellant college had not been justified in refusing to implement the Government Orders, the learned Single Judge, contends the learned counsel, ought not to have stopped short of providing full relief, including the pay and allowance for the interregnum, to the 1st respondent. In this regard, the learned counsel has placed reliance on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the powers of the Government authorities who issued them? Whether a statutory authority or agency can ignore or refuse to honour the Government Orders on an assumed premise that they are void? Whether a Government Order of perceived voidness or voidability can be assailed collaterally? If Exts. P-11 and P-14 as well as Exts. P-17 and P-21, are held to be enforceable at the behest of the 1st respondent, whether the first respondent is entitled to pay and other service benefits for the interregnum period from the date of his ceasing to be an employee of the University till the date of his actual reemployment in his parent college, the appellant? The Scope of Precedents: 34. Before we proceed further to appreciate the dictum laid down in the plethora of precedents cited at the Bar by both the learned counsel, it is well to bear in mind the adjuration in Union of India v. Arulmozhi Iniarasu (2011) 7 S.C.C. 397, on the application of precedents. The well-settled principle of law in the matter of applying precedents is that the Court should not place reliance on the decisions without discussing as to how the fact situation of the case before it fits in with the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee who resigned from the parent institution is, at best, only an obiter. As such, it can safely be held that the issue of applicability of Government Orders to a resigned employee remains an unexplored arena. 38. Though, neither party to the present proceedings is affected by the judicial pronouncement in Narayanan's case to the extent stated above, there is another issue which stood decided. As has been contended by the learned counsel for the appellant, in Narayanan's case too, the respondents raised an objection that the Government have absolutely no right to intervene in administrative matters of private colleges. Repelling the said contention, it was held in Narayanan's case that under the subsisting system, as evidenced by Ext. P-16 Government Order therein, Government have the responsibility to pay for those teachers and as such Government have control over sanction of posts in the matter of prescribing the method of appointment of teachers and in the matter of promotions. Such general powers will certainly include the power to intervene in administering justice to the persons who were on deputation to the University when the deputation has ceased to be eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsity (M.G University), is primarily governed by the provisions of the M.G. University Act, especially Sections 59(1) and (1A) of the Act. Since, the appellant has raised the issue of ultra vires, it is profitable to extract Sections 59(1) and (1A), which are as follows: Appointment of teachers in private Colleges. -- ['(1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government.'] ['(1 A) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.'] 43. Before discussing the statutory impact on the issue on hand, we may have to examine a few more provisions of the Act. Indeed, the administrator of a private college is the Manager, whose powers and obligations are dealt with under Section 76 of the Act. A perusal of the said section makes it amply clear that sub-section (7) thereof mandates that the Manager shall abide by the instructions issued by the Government or the University, lest he should be subjected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the parent Act. Be that as it may, in the manner stated above, Section 101 is only a legislative devise, but not a carte blanche for overcoming the day-to-day administrative exigencies. 48. At any rate, Section 62(2)(b) of the Act, relied on by the learned counsel for the 1st respondent, has some bearing on the issue, though it may not be squarely applicable to the present case. It is profitable to extract the said provision, which is as follows: 62(2)(b)--a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area. 49. Keeping Section 62(2)(b) of the Act in juxtaposition with Section 59(1) and (1A) of the Act, we may see that it is the prerogative of the Government to sanction posts in private Government colleges. In this case, under peculiar circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not infringe on legal right of any person. 54. Formulation of policy and its implementation is pre-eminently a function of the Executive and the task of the Executive is facilitated by the Parliamentary system of Government which operates both at the Centre and the States in India. An important point to note with respect to functioning of the administrative organ is that it does not always need a statutory authorisation to act and execute a policy. Many a time, the administration can implement policies without any statutory sanction. Government are not confined to discharge only such functions as specifically conferred on it by the legislation or the Constitution. The executive power is not, however, free from ultimate legislative control (see MP Jain SN Jain's Principles of Administrative Law, Vol.1, 7th Edn.). 55. It pays to remind oneself of the subtlety between powers which are inherent and those which are incidental. Incidental powers are the necessary concomitants to the substantive power, which have its origin in some statute or another. Inherent power is the power that is de hors the statutory sanction, but, at any rate, not in conflict with it either. An incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first propounded by Chief Justice John Marshall in Brown v. Maryland 25 U.S. 419 (1827). In Lochner v. New York 198 U.S. 45 (1905), Justice Peckham, delivering the majority opinion, has himself stated that 'police powers' is vaguely termed and its exact description and limitation has not been attempted by the Courts. 60. In Charanjit Lal Chowdhuri v. Union of India A.I.R. 1951 S.C. 41, a Constitution Bench of the Supreme Court has observed that in interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the imparting expression like 'police power', which is a term of variable and indefinite connotation in American law, can only make the task of interpretation more difficult. It has subsequently been affirmed by other Constitution Benches of the Supreme Court. It was declared to be antithetical to Indian Constitutional scheme in State of West Bengal v. Subodh Gopal Bose. The fact, however, remains that, on occasions, the doctrine of police powers has been employed by the Courts in India in the context of res extra commercium. 61. In fact, in common law terms, police powers is not confined to regulating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authors. In due deference to their wisdom, it is still to be stated that the English jurisprudential fidelity to the principle of Wednesbury is too steadfast, for too long a time, to the comfort of the cross currents of the droit administrative demands from the Continental France or to the American administrative advances from across the Atlantic. In the meanwhile, Indian Administrative Jurisprudence took a leap--a leap of liberality--to temper the tentative and nascent field of administrative law with the fortifying factor of Article 14 of the Constitution, to suggest one aspect of its growth. 66. Even otherwise, on a comparative scale, in the formative years of the branch of Administrative Law, which is still nebulous and amorphous, England had the shackles of the Diceyan Rule of Law; the USA, the doctrinaire dilemma of the Separation of Powers; and India, none. 67. The issue of collateral challenge is a procedural remedy against the orders which are manifestly void. Contextually, it can be stated that an administrative order can be void on two counts: audi alteram partem and ultra vires. Since Exts. P-11, P-14, P-17 and P-21 are not quasi- judicial in nature, ever so thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain litigation. Eventually, this Court through judgment in Sree Sankaracharya University of Sanskrit v. State 1996 (2) K.L.T. 378 declared that the teachers thus recruited had to be repatriated. 70. When first respondent and his batch were caught in the web of litigation and were eventually ousted from their newly secured employment, they looked upon the Government as their saviour. Under those circumstances, it felt to the Government to ameliorate their difficulties and redress their grievances. Collateral Challenge: 71. 'Collateral Challenge', variably referred to as 'Collateral Attack' as defined in Black's Law Dictionary, is as follows: An attack on a judgment in a proceeding other than a direct appeal; esp., an attempt to undermine a judgment through a judicial proceeding in which the ground of the proceeding (or a defense in the proceeding) is that the judgment is ineffective. Typically a collateral attack is made against a point of procedure or another matter not necessarily apparent in the record, as opposed to a direct attack on the merits exclusively. A petition for a writ of habeas corpus is one type of collateral attack. -- Also termed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretionary and can be refused, despite the suitor meeting all the requirements, under well established principles governing the prerogative writs. The issue of laches and equity may also weigh with the courts. By laying a collateral challenge, the 1st respondent, who ought to have approached the court for a positive relief, may as well use this shield to circumvent those limitations. 75. Neil Parpworth, in his Constitutional and Administrative Law (p. 263, 7th Edn., Oxford), accepting existence of the general principle that public law decisions ought to be challenged by way of judicial review, opines that it raises a related issue--Whether such a principle prevents a person from challenging the validity of a public law decision in proceedings brought against him? In short, can a public law matter be used as a shield or as a sword, or does the principle require that in those circumstances, an application for judicial review should be made? He underlines the importance of the answer to those questions by saying that the issue is clearly important from a practical stand point. It also has wider ramifications in terms of justice and fairness. Is it right that an individual should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese cases there are exceptions which are as plain as the exception this case. (as quoted in Neil Parpworth, P. 267) 78. Fluctuating as the judicial dicta have been, Chief Justice Bray of the Supreme Court of South Australia (the federal apex court of Australia paradoxically being the High Court) in Hinton Demolitions Pty. Ltd. v. Lower (No. 2) (1971) 1 S.A.S.R. 512, has observed as follows: [The] authorities are in such a state of flux and confusion that it is hardly likely that this Court will be able to construct an enduring causeway through the flood. The task of imposing order on this chaos must, I think, be reserved for the High Court, the Privy Council and the House of Lords. It seems to me that is hardly possible to disentangle any general principle which will not be opposed to some decision which is binding on us or would be if it stood alone. The celebrated Administrative Law experts, de Smith, Woolf Jowells, in their Principles of Judicial Review (Sweet Maxwell, 1999) at page 129, has summarized the position in relation to collateral attack as follows: 1. Except possibly for a decision which is clearly invalid on its face, all official decisions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shments. Considerable disruption and cost may occur if that decision is set aside at a late stage in the implementation of the closure plans. Challenges to measures of general application may also have a wide impact on a wide range of interest and persons. Retrospective quashing may create difficulties and unfairness for individuals and administrators who have relied upon the measure: unraveling the consequences of invalid acts may impose a heavy burden on the administration and divert resources towards re-opening decisions taken on the basis of the invalid regulations. 80. In Administrative Law Text and Materials (p. 106, Oxford, 3rd Edn.), Mark Elliott speaks of the limits of collateral challenge in the following manner: 3.4.3. The Limits of Collateral Challenge.--In spite of the importance attached to collateral challenge in Boddington, that case did not vouchsafe its universal availability: while Their Lordships cast off the restrictive approach adopted in earlier cases, they recognized that there will be circumstances in which administrative action cannot be challenged collaterally. Collateral Challenge - the Indian View: 81. The Courts have mostly approached th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own.... But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights.... (emphasis original) 84. Continuing in the same vein, we can state that a collateral challenge or attack is clearly permissible against orders or judgments obtained by playing fraud and such other vitiating factors, as can be seen, for instance, in matrimonial proceedings. 85. In Nawabkhan Abbaskhan v. State of Gujarat (1974)2 S.C.C. 121, it is prefatorily stated on the issue to be decided that the appeal raises a thorny issue of some importance which may be epigrammatically expressed as when has the citizen the discretion to disobey an order? When is a determination not a determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is relied upon; in other words, it is subject to 'collateral attack'. 88. Placing reliance on Ridge v. Baldwin 1964 A.C. 40, Rubinstein (Discretion to Disobey), etc., the Supreme Court took note of the adjudicatory difficulties faced by the Courts in demarcating the boundaries of the orders which are void and which are voidable. Yet again, it is worth quoting the inimitable expressions of the centenarian, V.R. Krishna Iyyer, J: 18. The test of ex facie illegality or bad on its face or in Lord Radcliffe's words 'it bears no brand of invalidity on its forehead', is also unworkable in the work-a-day world of law. Error of jurisdiction and error within jurisdiction, have been suggested as a means to cut the Gordian Knot. Many great writers have dealt with the subject but few have offered a fair answer to the question, is a determination at all when made without a statutory hearing and when is it void and to what extent? Decisions are legion where the conditions for the exercise of power have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the competent authority as early as 21-4-1994, so far the 3rd respondent management has not chosen to take any steps to challenge the same in a manner known to law either before the statutory authorities stipulated under the Act or before this Court under Article 226 of the Constitution of India. While that be the position, it is not permissible for the 3rd respondent to collaterally attempt to attack the order while opposing the claim of the appellant in this case under of the Article 226 of Constitution. Analysis of the Authorities cited at the Bar: 93. In State of Rajasthan v. D.R. Laxmi (1996) 6 S.C.C. 445, the question is whether absence of publication of the substance of the notification under Section 4(1) of the Land Acquisition Act in the locality renders the entire proceedings void? 94. In that context, the Hon'ble Supreme Court has held that, the order or action, if ultra vires the power, becomes void and it does not confer any right. Their Lordships, however, proceeded further to observe that the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the expression any right or privilege of emoluments . It was in the context of an employee's right or privilege to emoluments, which he is entitled to in terms of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society. In that backdrop, the Full Bench has made copious reference to various statutes, lexicons and standard legal commentaries, such as Corpus Juris Secundum, Salmond, G.W. Paton, Dias, Hohfeld. 100. Eventually, Their Lordships have held that where there is a right, there is a duty. Where it is only a privilege, it is only liberty without any corresponding duty. Privilege provides an opportunity to choose among alternatives. Privilege can be the dispensation of a bounty, a conferment of a personal benefit or advantage, a sanction of immunity or the grant of an exemption. Privilege is thus essentially discretionary. It may or may not be granted. Privilege has thus no compulsive element and is thus not judicially enforceable. When there is no duty to enforce a privilege, there can be sanction for its breach. Privilege cannot be equated with right and failure to grant a privilege does not attract any sanction. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. This defence, therefore, raised a question as to the validity of a provision in the Act. So, the appellant made an application to the Civil Judge, under the proviso to Section 113 of the Code of Civil Procedure seeking reference for the opinion of the High Court of Allahabad on the issue. The unsuccessful appellant initially approached the High Court of Allahabad and later the Supreme Court. In that backdrop, the Hon'ble Supreme Court has held that appellant's case comes within the proviso to Section 113 of the Code as also Article 228 of the Constitution. It can be seen that the question contemplated by the proviso to Section 113 of the Code is as to the validity of an Act or of a provision in it, while Article 228 of the Constitution has, in view, a question as to the interpretation of the Constitution. Neither of those contingences is obtained here. 105. In Mamleshwar Prasad v. Kanhaiya Lal A.I.R. 1975 S.C. 907, the facts are that through a common judgment a Division Bench of the Delhi High Court disposed of four appeals, the points covered by all being admittedly identical. Though four appeals came to be filed, the appellants moved the Supreme Court to dispose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinct and specific legislative power is not recognised in our Constitution and it is, therefore, contrary to the scheme of the Constitution. 108. The learned counsel for the appellant has laid heavy stress on Bharathidasan University v. All India Council for Technical Education (2001) 8 S.C.C. 676. The important question of law that has arisen for consideration in that case is whether the University created under the Bharathidasan University Act, 1981 should seek prior approval of AICTE to start a department for imparting a course or programme in technical education or a technical institution as an adjunct to the University itself to conduct technical courses of its choice and selection. 109. The contention of the University in that case is that it is not a 'technical institution' in terms of Section 2(h) of the AICTE Act and therefore, it stood outside the purview of Section 10(1)(k) of the said Act. Consequently, it is not obliged to seek and obtain prior approval of the AICTE for starting a department or introducing new courses or programmes. 110. In response thereto, the Supreme Court has held that a careful scanning through all the provisions of the AICTE Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of the court to raise the familiar defence of ultra vires, which can normally be pleaded as a collateral issue, when the defendant was not able to select the procedure adopted. 'In any event', Lord Fraser said, 'the arguments for protecting public authorities against unmeritorious or dilatory challenges to their decisions have to be set against the arguments for preserving the ordinary rights of private citizens to defend themselves against unfounded claims'. A defendant is entitled to make his defence as a matter of right, whereas judicial review proceedings are subject to the discretion of the court. (emphasis added) 113. As could be seen from the above extract, Lord Fraser did acknowledge the dichotomy of the issue; protecting the public authorities against unmeritorious or dilatory challenges to their decisions on one hand; and preserving the ordinary rights of private citizens to defend themselves against the unfounded claims of the authorities. In this case, can we say that the appellant, an institution, though suing in the name of its manager, is facing the official oppression as an ordinary citizen? For all practical purposes, it is an instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent to state that in U. Sharafali's case, the issue has already attained finality, having been dealt with in another writ petition, to which Government is a party. As such, it is held that even in the absence of a formal challenge against the validity of the order, the court can justifiably ignore the order, particularly when the party in sufferance is the respondent to the proceedings. Collateral Challenge Rule of Law: 119. Constitution is a matter of limitation of powers, while statutes are regulatory in nature. For a common man, Court of law is the last resort and as such, to preserve his rights and to negate the State's excessive interference, if any, in his affairs, his resistance takes myriad forms; it can be active or passive. He can lay a direct challenge or collaterally question the acts of Government, which, in his view, are not in consonance with the law of the land. On the other hand, the Executive is not a motionless monolithic; it is, in fact, a fine tuned administrative machine. Every official is a cog in the machine required to function as per the role assigned to him or her. Any malfunctioning of a cog in the machine, however small it is, throws th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urayappah v. Fernando (1967) 2 A.C. 337, the learned Author, Wades, says that although action which is ultra vires is properly described as void or a nullity, this voidness necessarily depends upon the right remedy being sought successfully by the right person. Citing an example, the learned author says that if a person is dismissed without being heard, his dismissal may be held as void if he challenges it. But, if he has not challenged it, other people have to accept it also, for, as against 3rd parties, whose rights are not infringed, a void act may well be valid, if they have no legal title to challenge it. In that context, he concludes thus: 'Void' is therefore meaningless in any absolute sense. It's meaning is relative depending upon the court's willingness to grant relief any particular situation. If this principle of legal relativity is borne in mind, confusion over void voidable can be avoided... So long as the ultra vires doctrine reminds the basis of a twisted to law, the correct epithet must be 'void'. 124. Echoing the same view, another learned author, de Smith, comments thus: Is it correct to say that 'there are no degrees of nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main as effective for its ostensible purpose as the most impeccable of orders. 129. Further, the Supreme Court also quotes with approval the observations of Prof. Wade: The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. (emphasis added) 130. Following Gurdev Singh, a Division Bench of this Court in Gopalakrishnan Nair v. State of Kerala I.L.R. 1992 (3) Kerala 739, has held that unless a Court of law either set aside or declares an administrative instruction, direction or order as invalid and inoperative, it will be presumed to be valid and operative. 131. In Pune Municipal Corpn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is illegal, is totally unsustainable. In support of his submissions, the learned counsel has relied on the following decisions: Commissioner, Karnataka Housing Board v. C. Muddaiah (2007) 7 S.C.C. 689, State of U.P. v. Dayanand Chakrawarty (2013)7 S.C.C. 595 and Shiv Nandan Mahto v. State of Bihar (2013) II S.C.C.626. Despite the unquestionable efficacy of the judicial dicta of the above judgments of the Apex Court, the issue is whether the ratio laid down therein applies to the present factual situation. 136. In this case, it is the Government, which is the paymaster. All along it has been directing the management to re-employ the 1st respondent, but it is the appellant management that has proved recalcitrant. Under these circumstances, directing payment of back wages puts an unjustifiable burden on the Government, which has never been at fault. It cannot be made to pay for the mistakes of the appellant college. The fact further remains that the 1st respondent attained the age of superannuation and deemed to have been retired from service in April, 2014. 137. Under these peculiar circumstances, in our considered view, it subserves the interest of justice if a direction is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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