REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2704 OF 2011     (Arising from S.L.P.(C) No.13944/2009)

Bharat Ratna Indira Gandhi College of Engineering & others ..Appellants

versus

State of Maharashtra & Others ..Respondents

WITH

CIVIL APPEAL NOS.2705-2716, 2776,2717-2725, 2727,2728,2731-2736,2738-2744  &  2746-2769  OF 2011(Arising from S.L.P.(C) No.15363,15353, 15367,15360,14976,14844,14845,15358,15364, 15310 & 15333/2009, SLP(C)No.8960/2011 @ CC9074/2009,15331,15335/2009,15408/2009, 17331/2010,13866,13868 & 13869/2009,20675, 20674,17596,17597,17599,17600-17613,17615, 17332,25735,25738,25737,25736,19018,19020, 19022,19023,20529,29386,23493,23494,24033, 24034,25744,24028,24029,23049,23441 &  29841 of 2010 & 25560 of 2009)

 O R D E R

Delay condoned.

Leave granted.

Heard learned counsel for the parties.

These  Appeals  have  been  filed  against  the  impugned  

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

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

Petition No.2216 of 2006.

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

petition before the High Court on which the impugned order  

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

basis of some information which has not been disclosed  

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in the impugned order.  The cause title in the impugned  

judgment reads:

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

None of the colleges in respect of which the impugned  

order  was  passed  were  made  respondents,  nor  was  notice  

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

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

the High Court.

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

petition  on  which  they  are  passed,  are  ordinarily  not  

justified  nor  sustainable.   Ordinarily,  there  must  be  a  

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

opinion, the High Court was not justified in taking  suo  

motu action in this case.  Judges must exercise restraint  

in such matters.  

Moreover, we have perused the impugned order and we are  

of the opinion that the directions contained in paragraph 7  

of the impugned judgment were wholly unwarranted as they  

amount to judicial legislation.

It appears that many private unaided Degree Colleges in  

Maharashtra did not have permanent Principals, and this is  

what motivated the High Court to pass the impugned order.

By the impugned order, the High Court has directed that  

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

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

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first  week  of  June,  2009  prohibiting  admissions  in  the  

Colleges concerned.

In our opinion, no such direction could have been validly  

given  by  the  High  Court.   If  there  is  no  permanent  

Principal, obviously the Acting Principal shall officiate as  

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

permanent Principal, admissions to the college should be  

prohibited.  There is no statutory rule that in the absence  

of a permanent Principal admissions in the Colleges cannot  

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

legislation,  which  is  not  ordinarily  permissible  to  the  

Courts vide Divisional Manager, Aravali Golf Club & Another  

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

Also, none of these Colleges were made parties before the  

High Court, and hence the aforesaid direction is violative  

of the principles of natural justice.  

Accordingly, we allow these appeals and set aside the  

impugned order of the High Court.  No costs.

However, we direct that the process for filling up the  

posts of Principal may continue in accordance with law, and  

should be done expeditiously.

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

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