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Dr. (Mrs.) Shabbir Fatima and ors. Vs. the Chancellor, University of Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4586 of 1964
Judge
Reported inAIR1966All45
ActsAllahabad University Act, 1921 - Sections 11, 11(4), 14(1), 28(2), 42 and 45; Constitution of India - Articles 216, 217, 219, 220 and 226
AppellantDr. (Mrs.) Shabbir Fatima and ors.
RespondentThe Chancellor, University of Allahabad and ors.
Appellant AdvocateS.C. Khare, ;KML Hajala and ;V.K. Gupta, Advs.
Respondent AdvocateG.P. Singh, Adv. and ;H.N. Seth, Junior Standing Counsel and ;Adv. General
DispositionPetition dismissed
Excerpt:
(i) constitution - interpretation - section 11 (4) (i) (b) of allahabad university act, 1921 - 'chief justice' - judge of high court - powers of chief justice - held, entitled to nominate member of committee. (ii) power of chief justice - section 11(4)(i)(b) of allahabad university act, 1921 - nature power of nomination - no benefit or pecuniary benefit - exercises power in discharge of public duty imposed upon him by statute. (iii) election - sections 11(4)(i)(a) and 28(2) of allahabad university act, 1921 - process of election - election not conducted according to system of proportional representation by means of single transferable vote - held, election is void. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale,.....r.s. pathak, j.1. the petitioners, who are lecturers of the university of allahabad, pray for a writ in the nature of quo-warranto to enquire from the chief justice of this court and sri sri prakash by what authority they purport to act as members of the committee constituted under section 11 (4) of the allahabad university act and for a writ in the nature of mandamus directing the chancellor not to accept the recommendations made by the committee so constituted.2. the university of allahabad was established and incorported by the allahabad university act, 1887. it is presently governed by the allahabad university act, 1921. the vice-chancellor, who is a wholetime officer of the university, and its principal executive and academic officer, is appointed by the chancellor of the university.....
Judgment:

R.S. Pathak, J.

1. The petitioners, who are lecturers of the University of Allahabad, pray for a writ in the nature of quo-warranto to enquire from the Chief Justice of this Court and Sri Sri Prakash by what authority they purport to act as members of the Committee constituted under Section 11 (4) of the Allahabad University Act and for a writ in the nature of mandamus directing the Chancellor not to accept the recommendations made by the Committee so constituted.

2. The University of Allahabad was established and incorported by the Allahabad University Act, 1887. It is presently governed by the Allahabad University Act, 1921. The Vice-Chancellor, who is a wholetime officer of the University, and its principal executive and academic officer, is appointed by the Chancellor of the University under the Act which provides the mode of appointment. The Act has been amended from time to time, and for reasons which it is not necessary to mention here, the provision laying down the procedure governing the appointment of the Vice-Chancellor, was amended by the Uttar Pradesh University Act, 1961, and a new provision was substituted for the earlier one. This provision, which is Section 11 of the Act, in its material portion is reproduced below:

'11 (1). The Vice-Chancellor shall be a wholetime officer of the University and shall be appointed by the Chancellor from amongst the persons whose names are submitted to him by the Committee constituted in accordance with the provisions of Sub-section (4).

(2) ... .................

(3) ..........................

(4) (i) The Committee referred to in Sub-section (1) shall consist of three persons, namely--

(a) one person, not being a person who is connected with the University, a College, an Associated College, a Constituent College or a Hostel, to be elected by the Executive Council;

(b) another person, who is or has been a Judge of the High Court of Judicature at Allahabad to be nominated by the Chief Justice of that High Court; and

(c) a third person to be appointed by the Chancellor who shall also be the Convenor of the Committee;

(ii) The Committee shall, as far as may be, at least thirty days before the date on which a vacancy in the office of the Vice-Chancellor is due to occur by reason of expiry of term of resignation under Sub-section (2) and also whenever so required by the Chancellor, submit to the Chancellor the names of three persons suitable to hold the office of Vice-Chancellor. The Committee shall, while submitting the names, also forward to the Chancellor a concise statement showing the academic qualification and other distinctions of each of the said three persons, but shall not indicate any order of preference.

(5) .......... ...............

(6) Notwithstanding anything to the contrary contained in this section, the Chancellor may, in any case of emergency, of which the Chancellor shall be the sole Judge and in any case where the vacancy cannot be conveniently and uxpediriously filled in accordance with the provisions of Sub-sections (1) and (4) appoint any suitable person to the office of Vice-Chancellor.

Provided... ..............'

3. The term of the out-going Vice-Chancellor. Dr. Bulbhadra Prasad, was due to expire on October 27, 1964.

4. A meeting of the Executive Council to elect a person to the Committee under Section 11 (4) (i) (a) was convened on May 9, 1964. A notice, dated April 29, 1964, calling the meeting was issued to the members of the Executive Council but no agenda was circulated with it. The agenda was issued on May 4, 1964, and as regards members residing at Allahabad was received by them on May 5, 1964. The meeting was duly held on May 9, 1964, but of the 23 members of the Executive Council only 16 were present in the meeting. A number of names were proposed for election, but ultimately the members present decided unanimously to elect Sri Sri Prakash to serve on the Committee.

5. The second member of the Committee is, under Section 11 (4) (i) (b), to be nominated by the Chief Justice of this Court, The nomination must be of a person who is or has been a Judge of this Court. In the exercise of these powers, the Chief Justice nominated himself.

6. The third member was appointed under Section 11 (4) (i) (b) by the Chancellor.

7. The Committee met on September 12, 1964, and decided upon the persons whose names should be recommended to the chancellor from amongst whom he would appoint the Vice-Chancellor, Before the Chancellor could act upon the recommendations, the petitioners tiled the instant petition challenging the validity of the constitution of the Committee and, therefore, of its recommendations. On the admission of the petition, an interim order was granted restraining the Chancellor from appointing a Vice-Chancellor from out of the persons recommended by the Committee. In the circumstances, as the term of the outgoing Vice-Chancellor was due to expire on October 17, 1964, the Chancellor, in the exercise of his emergency powers under Section 11 (6), appointed Dr. Balbhadra Prasad as interim Vice-Chancellor to continue in office until a Vice-Chancellor was appointed under Section 11 (1).

8. The petitioners contend that the Chief Justice of this Court and Sri Sri Parkash were not competent to function as members of the Committee constituted under Section 11 (4) and that, therefore, the recommendations made by the Committee to the Chancellor were void.

9. The competence of the Chief Justice to function us a member of the Committee is assailed by the petitioners on the ground that he cannot nominate himself as a member of the Committee. Under Section 11 (4) (i) (b) the Chief Justice of this Court has been empowered to nominate a person 'who is or has been a Judge' of the Court. In nominating himself, it is said that he acted in excess of his powers. The contention proceeds on a number of grounds.

10. It is urged that the Chief Justice of this Court is not a Judge of the Court. Now that is not possible to accept. The High Court consists of Judges, one of whom is designated the Chief Justice. The Chief Justice performs judicial functions even as the other Judges, and in respect of such functions the Judges enjoy equal status. Superadded to the judicial function, certain additional responsibilities and functions are enjoyed by the Chief Justice which do not belong to the other Judges. These are such as are vested in him either under the Constitution, for example where, under Article 217, the President is required to consult him in the appointment of a Judge other than the Chief Justice, or by virtue of the Rules of Court made by the High Court under Article 225 of the Constitution, As Chief Justice, he also enjoys rank and precedence before the other Judges of the Court.

11. It will be generally found that when-ever reference is made to the Judges of a Court, land the Chief Justice has to be specifically mentioned the Judges will be described as the Chief Justice and the other Judges. We find for example that Sri William Holdsworth in his History of English Law, (Edn. 7, Vol. I, p. 252), white discussing the income of the Judges of England, points put:

'In the twelfth century the Judges do not appear to have had a regular salary; but, in 1268, Robert Bras, the First Chief Justice of the King's Bench, was granted a salary of 100 marks. This salary, or something like it, was usually paid to the Chiefs of the Courts in Henry III's reign, and salaries from 20 to 40 to the other Judges. But in the following reigus the salaries of the Chief Justices seem generally to have been from 40 to 60, and the salaries of the other Judges 40 marks.'

When the Judges of the Court are not referred to as 'the Chief Justice and the other Judges' they may be spoken of as the Chief Justice and his puisne Judges. The word 'puisne' is from the French 'puisne' and means 'later born, junior, inferior, lower in rank'. Defining the word thus, Earl Jowitt's Dictionary of English law (Edn. 1959, p. 1444), informs us that

'The Judges and barons of the former common law Courts at Westminster, other than the Chief Justices, were called puisne.

The Judicature Act, 1925, Section 2, replacing the Judicature Act, 1877, Section 5, provides mat the High Court shall be constituted of the following Judges, that is to say, the Lord Chancellor, the Lord Chief Justice, the President of the Probate Division and the puisne Judges of the several Divisions........

So also we find it said in Stroud's judicial Dictionary (Edn. 3, p. 240) that

'A Puisne Judge in England was one of the justices of the old Courts of the King's Bench, Common Pleas, or one of the Barons of the old Court of Exchequer, other than the Chief,' and reference is made to Blackstone's Commentaries, (Edn. 5, Vol. III. pp. 41, 45), Holds-worth, while still on the subject of the salaries of Judges, mentions, (Ibid, p. 254):

'The Commissioners appointed in 1815 to examine into the duties, salaries, and emoluments of the officers, clerics, and Ministers of Courts of justice reported that the salary of the Chief Justice of the King's Beach was 4000, that the salaries of the chiefs of the other two Courts was 3500, and that the salaries of the puisne Judges of all these Courts was 2400.''

In the United States, the fudges of the Supreme Court are referred to as the Chief Justice and the Associate Judges.

12. That the Chief Justice of a High Court in India is a Judge of that Court is clearly demonstrated by reference to the successive Constitution Act's governing this country. The Government of India Act, 1915, provided for the Constitution of High Courts. Section 101(2) declared:

'Each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think fit to appoint:

Provided as follows:

(i) ... .......

(ii) the Minimum number of Judges of a High Court, including the Chief Justice and additional Judges, shall be twenty.'

The Chief Justice, it is patently clear, was considered, therefore, as one of the Judges. This is again demonstrated by the circumstances that when Sub-section (3) of Section 101 set out the qualifications for appointment as a Judge, there was no separate provision setting out the qualifications of a Chief Justice. Then, Section 102 provided that every fudge of a High Court shall hold his office during His Majesty's pleasure and also that any such Judge may resign his office. This provision was intended to apply to a Chief Justice as to every other Judge, Section 103(1) declared that the Chief Justice shall have rank and precedence before other Judges. Section 104 made provision for the remuneration of a Judge and his other conditions of service. The Secretary of State in Council, by Sub-section (1), was empowered to fix the salaries, allowances, furloughs, retiring pensions and expenses for equipment and voyage of the Chief Justice and other Judges. Sub-section (2) provided that the remuneration fixed for each Judge shall commence on his taking upon himself the execution of his office, and Sub-sections (3) and (4) provided for the sum which must be paid to the legal personal representatives of a Judge who dies during his voyage to India for assuming his office or while in possession of his office. Section 105 indicated how the vacancy in the office of a Chief Justice would be filled and provided that 'one of the other Judges of the same High Court' shall be appointed to perform the duties of Chief Justice of the Court until some person had been appointed to that office. Sub-section (2) indicated how a vacancy in the office of any other Judge would be filled.

13. The same statutory pattern has been followed in the Government of India Act, 1919. Reference may be made to the provisions of Sections 101 to 105. No departure is visible in the expressions used in the Government of India Act, 1935, where Sections 219 to 222 make corresponding provision.

14. I shall now examine the provisions ofour present Constitution. Article 216 declaresthat every High Court shall consist of a ChiefJustice and such other Judges as the Presidentmay from time to time deem it necessary toappoint. Article 217 provides for the appointment of the Judges of a High Court. EveryJudge of a High Court is appointed by thePresident by warrant under his hand and sealafter consultation with the Chief Justice ofIndia, the Governor of the State, and, 'in thecase of appointment of a Judge other than theChief Justice,' the Chief Justice of the HighCourt. It also provides that every Judge shallhold office until he attains the age of sixty-twoyears. (The provision as to age does not applyto Additional or Acting Judges.) A Judge mayresign his office or may be removed from officeor his office may be vacated by his being appointed as a Judge of the Supreme Court or byis being transferred to another High Court.A person is qualified for appointment as a Judgeonly if he is a citizen of India and has for atleast ten years held judicial office in India orfor that same period has been an Advocate ofa High Court. Now, in respect of all these matters no separate provision has been made concerning a Chief Justice. If the word 'Judge' did not include a Chief Justice, we should be faced with the anomalous situation that it would not be necessary for a person being appointed as Chief Justice to enjoy any qualification although that is required for a puisne Judge. A person appointed as Chief Justice need not be a citizen of India and need never have held judicial office nor been au Advocate of a High Court. Article 219 requires a person appointed to be a Judge of a High Court to make and subscribe an oath or affirmation. There is no separate provision for the making of an oath or affirmation by a person appointed as Chief Justice. It is difficult to conceive that while a puisne Judge is required, before assuming office, to make and subscribe an oath or affirmation, the Constitution should relieve a Chief Justice from that obligation. Then there is Article 220 which bars a person who, after the commencement of the Constitution has held the office of a permanent Judge, from pleading or acting after retirement in the Court where he has held such office. If the Chief Justice is not a Judge, we should come to the strange result that he is not debarred from practising in the Court of which he has been Chief Justice although a puisne Judge upon retirement suffers from that disability. Provision is made for the salaries of Judges by Article 221, which declares the Judges entitled to the salaries specified in the Second Schedule. The relevant provision of the Second Schedule reads:

'10 (1) There shall be paid to the Judges of High Courts, in respect of time spent on actual service, salary at the following rates per mensem, that is to say--

The Chief Justice . . 4,000 rupees. Any other Judge .. 3,500 rupees.'

Then follows Article 222 which provides for thetransfer of a Judge from one High Court toanother. The President after consultation withthe Chief Justice of India is empowered totransfer a Judge from one High Court to anyother High Court. There are several otherprovisions all pointing to the same conclusionthat the Chief Justice is a Judge of the Court, It seems manifestly clear to me that the word'Judge', without anything more, will includethe Chief Justice.

15. In this view of the matter, I am also not inclined to accept the contention of learned counsel appearing for the Chief Justice that the Chief Justice satisfied the description of a person 'who has been a Judge of the High Court of Judicature at Allahabad'. It seems to me that those words refer to a person who at one time occupied that office and no longer enjoys it.

16. The next ground urged on behalf of the petitioners is that since the expressions 'the Chief Justice' and 'a Judge' have been used in the same clause, the latter must be construed to exclude the former. Now, there is nothing to ray mind which Indicates that by the mere use of the two expressions in the same, clause the Legislature intended to abridge the meaning of the expression 'a Judge' so as to preclude it from including the Chief Justice. To establish this, there must be something clearly pointing to such conclusion. On the contrary, it seems to me that the context required the distinct use of the two expressions. The power of nomination was to be assigned to a single individual. It was necessary to specify that individual. When reference is made to the Chief Justice in the clause it is for the purpose of specifying him as the nominating authority.

17. The third ground upon which it is contended that the Chief Justice cannot nominate himself is that Clauses (b) and (c) of Section 11(4) (i) follow a similar pattern and that it will be clear from Clause (c), where the Chancellor has been empowered to appoint a person as member of the Committee, that the Chancellor cannot appoint himself and, therefore, it is said, the Chief Justice acting under Clause (b) similarly cannot nominate himself. The argument proceeds upon the unwarranted assumption that the two provisions are woven upon an identical pattern. If regard be had to the context in which these provisions appear it will be plain that there is no foundation for this assumption. The Chancellor cannot appoint himself under Clause (c) because it is he who has to ultimately consider the recommendations of the Committee. It is not possible to conceive that the Legislature should have intended the Chancellor to be a member of the Committee, and to appoint him also as the officer who will consider the recommendations of the Committee and take his decision thereon. Such a position would be clearly illogical. The position of the Chief Justice under Clause (b) is very different. The only function assigned to him is the nomination of a person to the Committee. If the Chief Justice nominates some other person to the Committee, he has no further function to perform. If he nominates himself, his function concludes as soon as the Committee submits its recommendations to the Chancellor. There is no reason for spelling out a limitation upon the power of nomination under Clause (b) which attaches itself to the power conferred under Clause (c).

18. Then, the petitioners point out that if the Legislature had intended that the Chief Justice could nominate himself, it would have framed Section 11(4) (i) (b) in the same terms as Section 14(1) (iii). Section 14(1) provides that the Registrar of the University shall be appointed by the Executive Council on the recommendation of a Selection Committee, and one of the members of the Selection Committee shall be--

'(iii) the Chairman of the Public Service Commission, Uttar Pradesh, or a member thereof nominated in this behalf by the Chairman.'

The argument is that it is only if similar language was incorporated in Section 11(4) (1) (b) that you could say that the Chief Justice could nominate himself. An examination of the two provisions will show that they carry different degrees of emphasis. While the language of Section 14 (1) (iii) appears to stress that primarily the Chairman or the Public Service Commission should be a member of the Selection Committee, and that failing him a member of the Commission may be nominated in this behalf by the Chairman, when we turn to the language of Section 11(4) (i) (b) no such inference is open and any person, be it the Chief Justice or some other person who is or has been a Judge, may be nominated to the Committee. On behalf of the Chief Justice, it was urged that the two provisions, Section 11(4) (i) (b) and Section 14(1) (iii) mean the same thing, and that the difference in language has been occasioned by the accident that the two provisions were brought into the statute at different times and, therefore, probably by different draftsmen who did not appreciate the desirability of following the same pattern of language. There is nothing on the record to suggest this as the reason, and ordinarily a Court of law would be reluctant to accept the explanation that two provisions couched in different language bear the same meaning, and the difference in language is due to their becoming part of the statute at different points of time.

19. Another argument advanced on behalf of the petitioners is that the words 'another person' in the beginning of Clause (b) of Section 11(4) (i) should be so read with the remaining words of that clause as to render the meaning that the Chief Justice must nominate a person, other than himself, who is or has been a Judge. There is no substance in this argument. The reason for using that expression will be apparent at once if Section 11(4) (i) is reproduced as under:

'(4) (i) The Committee referred to in Sub-section (1) shall consist of three persons namely--

(a) one person .... to be elected by the Executive Council,

(b) another person.... to be nominated by the Chief Justice. . . .; and

(c) a third person to be appointed by the Chancellor. . .

The three expressions 'one person', 'another person' and 'third person' have been used merely by way of enumeration. Upon the rules of grammar, the clause as constructed could not fairly bear the meaning, which is sought to be put upon it on behalf of the petitioners. If that meaning had been intended, some such construction would have found place as

'a person other than the Chief Justice of the High Court of Judicature at Allahabad who is or has been a Judge of that High Court to be nominated by the Chief Justice of that High Court'.

Learned counsel for the petitioners relies upon Sampson v. Sampson, 1906-1 Ch 435, in order to show that the words 'another person' must mean a person other than the appointer. As I shall presently show, when considering the next argument for the petitioners, the decision proceeds upon wholly different considerations from those obtaining in the instant case.

20. The petitioners say that the Legislature has, by virtue of Clause (b), confided in the Chief Justice a trust for the purpose of nominating a member of the Committee, and that as a repository of that trust he is under a fiduciary obligation not to appoint himself. The argument, it seems to me, proceeds upon a misconception of the nature of the power vested in the Chief Justice. In the case of a trustee, there is little doubt that he stands in a fiduciary relationship to the cestui que trust. When two persons stand towards each other in such a relation that while it continues one necessarily reposes confidence in the other and this enables the other to exert influence or dominion over the former to his own benefit and advantage at the expense of the confiding party, it might be said that the relation existing between them is of a fiduciary character. The term 'fiduciary' is borrowed from the civil law. Bouvier's Law Dictionary, (Edn. 1948, p. 412) tells us that--

'The Roman laws called a fiduciary heir the person who was instituted heir, and who was charged to deliver the succession to a person designated by the testament.' and that

'Fiduciary may be defined in trust, in confidence.' Then it goes on--

'The law forbids one standing in such a position making any profit at the expense of the party whose interests he is bound to protect, without full disclosure;' and cites several instances where a person stands in a relation of trust or confidence to another by reason of which he is in a position to benefit himself on account of such position of peculiar confidence. A trustee cannot be allowed in equity to make a profit to himself out of his trust, and statutory recognition to that principle has been accorded by the Legislature in Section 88 of the Indian Trusts Act, 1882, which extends it to an executor, partner, agent, director of a company, legal adviser and other person bound fn a fiduciary character to protect the interests of another person. If a person so bound, by availing himself of such fiduciary character, gains for himself any pecuniary advantage or enters into dealings under circumstances in which his own interests are, or may be, adverse to those of the person whose interests he is bound to protect and thereby gains for himself a pecuniary advantage, Section 88 declares that he must hold for the benefit of such other person the advantage so gained. The Courts in England applied the same principle when Kekewich, J. held in Newen v. Barnes, (1894) 2 Ch 297 at p. 809;

'. . . .no trustee having a fiduciary power of appointing trustees can exercise that power by appointing himself.' On that ground he doubted the correctness of the decision of Buckley. J. in Montefiore v. Guedalla (1903) 2 Ch 728, in his judgment in 1906-1 Ch 435 (supra), although he preferred to rest his own decision on the language employed in Section 10(1) of the Trustee Act, 1893.

21. There is no possible pecuniary benefit, or benefit of any description, to the Chief Justice when he nominates a member of the Committee under Clause (b). When he exercises the power of nomination, he does so in the discharge of a public duty imposed upon him by the statute.

22. It has not been shown to me that the word 'nominate' in its natural meaning precludes the person exercising the power of nomination from nominating himself. Indeed, Buckley, J., in 1903-2 Ch 723 (supra) was of the opinion that if a power of appointment was vested in a person, he could, in exercise of the power, appoint himself, and that he found nothing in the several decisions cited before him to persuade him to the contrary view. And if Kekewich, J. in 1906-1 Ch 435 (supra) doubted the correctness of that decision, it was only because the case involved the exercise of a fiduciary power in that a person authorised to appoint a new trustee appointed himself. There is also nothing in the context in which the power has been conferred by Clause (b) or anything in the object for which Section 11 was enacted to preclude the Chief Justice from serving as a member of the Committee. I am, therefore, of the view that the Chief Justice was competent to nominate himself as a member of the Committee constituted under Section 11(4).

23. The petitioners also contend that Sri Sri Prakash was not competent to serve on the Committee. That contention is founded upon the ground that as a registered graduate of the University of Allahabad he was not a person eligible for election under Section 11(4) (i) (a), and also that the election in itself was void. As a registered graduate, Sri Sri Prakash, it is pointed out, is a person who can be said to be connected with the University. It is said that in order to qualify for election under Clause (a) a person must have no nexus whatever with the University and that the widest meaning must be attached to the words 'connected with' used in Clause (a), that a registered graduate whom the Act specificity recognises, and in fact defines in Section 2(j), is a person who is so connected. I am not inclined to accept this argument. It is true that the expression 'connected with' is capable of wide meaning. In itself the expression does not indicate the confines within which its use must be limited. Wherever an expression of such wide connotation is employed in a statute, it is necessary for the Courts to draw the lines between which its meaning must be confined. This task, which is necessarily one of judicial interpretation, must be discharged by reference to the context in which the expression occurs, the object sought to be advanced by the enactment and the mischief sought to be suppressed. The object behind the enactment or Section 11 appears to be to ensure that the names recommended to the chancellor, from which he must appoint a Vice-Chancellor, will be suggested by an impartial and independent Committee so constituted as to preclude the possibility of the recommendations being influenced by the hope of favour or the fear of prejudice from the person who may be appointed Vice-Chancellor. It will be noticed that the constitution of the Committee envisages three members, one elected by the Executive Council, another nominated by the Chief Justice and who must be or have been a Judge of the High Court, and a third appointed by the Chancellor.

Before the present provision was introduced by the U. P. University Act, 1961, the Vice-Chancellor was appointed by the Chancellor from names recommended by the Executive Council. The participation of the Executive Council in the making of the recommendations bus been drastically curtailed. All that the Executive Council can do now is to elect a person to the Committee which recommends the names. And, that person must not be one who is connected with the University, a College, an Associated College, a constituent College or a Hostel. It is in this limited sense only that the Executive Council can be said to share in the responsibility of choosing a Vice-Chancellor. It cannot participate directly in such choice. It can elect one person only to the Committee, and that person is only one of three members. The fact that the other two members are persons, one who is or has been a Judge of the High Court and is nominated by the Chief Justice and the other is appointed by the Chancellor testifies to the anxiety of the Legislature to ensure that the Committee, while recommending names for the appointment of a Vice-Chancellor, will act impartially and independently in the cause of public education. The Legislature was at pains to ensure that the Committee should not consist of persons who might desire the favour or apprehend the prejudice of whoever might be appointed Vice-Chancellor. That seems to me to be the test for determining who is a person who can be said to be connected with the University and the other bodies mentioned in Clause (a). To my mind only such person can be said to be connected with the University and those bodies who holds an office therein or enjoys a pecuniary or some other benefit from them.

It is pertinent to note that similar provisions already existed in other places in the statute wherever it was intended to inject an element of independent opinion. In Section 17(1), where the constitution of the Court is set out, Clause (xvii) provides for a number of members to represent the registered graduates who are elected by them from among themselves but who are not eligible for such election if they are in the service of the University, a College, a Constituent College, an Associated College or a Hostel. Similarly, the composition of the Executive Council includes, under Section 20(viii), five persons elected by the Court from amongst its members who are not in the service of the University and the aforesaid bodies. So also corresponding provision will be found in Section 23(1) which provides for the constitution of the Committee of Reference. Now all these, the Court, the Executive Council and the Committee of Reference are important authorities of the University. The Vice-Chancellor is the principal executive and academic officer of the University with vast powers. It is in this context that the correctness of the petitioners' contentions must be examined.

A registered graduate occupies no position of profit in the University or any of its bodies. Nor is he in a position, by reason of being a registered graduate, to derive any personal benefit from them. He is entitled to elect 25 representatives to the Court. Merely because he himself is eligible to be a candidate for such election does not mean that he will be elected to the Court. The process of election intervenes between him and membership of the Court, and if he is elected it is only because of the wishes of other registered graduates. The Vice-Chancellor plays no part under the statute in the election. Consequently, as a registered graduate merely, it cannot be said that he is liable to the influence of the Vice-Chancellor. Upon all the aforesaid considerations, it seems to me that a registered graduate is not a person who is connected with the University, a College, an Associated College, a Constituent College or a Hostel. That being so, in my judgment, Sri Sri Prakash was not ineligible for election under Clause (a) by reason only of the fact that he was a registered graduate of the University.

24. But on the other ground upon which the election of Sri Sri Prakash has been challenged the petitioners stand on firmer footing. The petitioners say that the election is void because an election of a person to the Committee under Section 11(4) (i) (a) was bound to be held according to the system of proportional representation by means of the single transferable vote and this election was not so held, and also because the notice given to the members of the Executive Council of the meeting for holding the election was insufficient in law.

25. Now, first as to the question whether the election contemplated under Section 11(4) (i) (a) must be held according to the system of proportional representation by means of the single transferable vote. Section 11(4) (i) (a) requires the Executive Council to elect a person to the Committee, Since the Executive Council is a body which can transact business only at a meeting, it is necessary that the election be held at a meeting. The clause itself does not say how the election will be held. It is silent as to this. Consequently, provision in this behalf must be discovered in some other part of the Act. The petitioners point to the provisions of Section 28(2), but for the respondents it is urged that the sub-section refers only to the election of officers and members of the Authorities of the University and cannot be called in aid here. It seems to me that the petitioners are right.

Section 28 provides:

'28. (1) Save where expressly provided to the contrary, officers, and members of the Authorities of the University shall, as far as may be, be chosen by methods other than election.

(2) Where provision is made in this Act for an election, such election shall be conducted according to the system of proportional representation by means of the single transferable vote, and where such provision is made in a statute it shall be held in the manner prescribed by the statutes.

(8) ........ ....'

Sub-section (1) of Section 28 declares that in the matter of choosing officers and members of the Authorities of the University methods other than election are to be preferred. But if it in expressly provided that the choice must be exercised By the method of election, then it is by election alone that the choice must be expressed. Then, Sub-section (2) requires that wherever the Act calls for an election, such election must be conducted according to the system of proportional representation by means of the single transferable vote. Where, however, it is the Statutes which provide for an election, the election must be held according to the method prescribed by the Statutes. It is, therefore, abundantly clear that if the Act itself provides for an election then the only method is that based on the system of proportional representation by means of the single transferable vote. No other method is permitted by the Act. Now, the respondents say that that is true only when an officer or a member of an Authority of the University has to be chosen, and reference is made to the marginal note to Section 28 which reads: 'Manner of appointment of officers and members of Authorities' to show that that is the scope of all the pro visions of Section 28. This is not the first time that a court of law has come across a misleading marginal note. Instances in recent times are unfortunately not uncommon. It was at one time considered, and still is by many Judges, that marginal notes are not to be taken as part of the statute, and in Longdon-Griffiths v. Smith, 1950-2 All ER 662 at p. 672, Slade, J. observed:

'I do not think I am entitled to have regard to the rubric (marginal note) in interpreting a statute, and I disregard it: on that ground.' and more specific reasons for rejecting a marginal note as an aid to construction were given by Domovan, J. in R. v. Bates, 1952-2 All ER 842 at p. 844, when he explained: '.... it is not the subject of debate or amendment in Parliament, and it follows that during the passage of a Bill amendments may be made to a clause which extends its effect beyond the scope of the marginal note, which, nevertheless remains unamended. The note, therefore, would then become actually misleading if used as a guide to construction.'

26. The Supreme Court in this country has also frowned upon attempts to derive assistance in statutory construction from marginal notes: Commr. of Income Tax v. Ahmedbhai Umarbhai and Co. : [1950]181ITR472(SC) ; Nalinakhya v. Shyam Sunder : [1953]4SCR533 .

27. Section 28 in its present form was to the Act by the Allahabad University (Amendment) Act, 1954. That Amendment Act also introduced other provisions. For the original provision, it substituted a new Section 17 setting out the present composition of the Court, and among the members of the Court are:

'(xvii) representatives of the registered graduates to be elected according to the system of proportional representation by means of the single transferable vote, by the registered graduates of such standing as may be prescribed by the statutes from among such registered graduates as are not in the service of the University ......'

And in Section 20, which provides for the constitution of the Executive Council, one finds among its members:

'(viii) Five persons to be elected according to the system of proportional representation by means of the single transferable vote by the Court from among such members as are not in the service of the University ...... . .'

A new Section 28, providing for the membership of the Committee of Reference, was brought in by the same Amendment Act to replace the earlier provision. By that Section, among others, the said Committee now consists of:

'(iii) three members of the Court, not being members of the Executive Council, to ho elected according to the system of proportional representation by means of the single transferable vote, of whom one shall be a teacher of the University and the other two shall be persons not in the service of the University. . . '

28. Then the Amendment Act also effected changes in the manner of appointing the Treasurer. Section 13, us it stands presently, empowers the Chancellor to appoint the Treasurer from the names submitted by the Executive Council. The Executive Council may submit the names of not more than three persons, and if the number of names proposed in the Executive Council for submission to the Chancellor exceeds three, the Executive Council must, out of the names proposed, elect three names according to the system of proportional representation by means of the single transferable vote. As far as I can gather, the Act does not contemplate the election of any other officer or member of an Authority of the University, Whenever reference has been made to such election, the Act expressly stipulates that it is to be conducted according to the system of proportional representation by means of the single transferable vote. All these provisions were inserted in the Act simultaneously with Section 28 by the Amendment Act of 1954. Consequently, when Section 28 (2) declares that an election called for by a provision of the Act must be conducted according to the system of proportional representation by means of the single transferable vote, it could not have been intended to refer to the election of officers and members of the Authorities of the University mentioned above. Provision in this behalf was expressly made, as I have shown above, and a Court of law would be reluctant to attribute to a busy Legislature the intent to make superfluous and redundant legislation. In my judgment, Section 28 (2) applies to all provisions in the Act wherever an election is contemplated, and for which the Act has not already stipulated the system on which the election must be conducted. It is a provision of general application and in its amplitude reaches out to all the corners of the Act. There is no reason why it should not apply to an election under Section 11 (4) (i) (a) and specially so, when that provision contains no suggestion as to the system on which the election should be conducted.

29. The Governor of Uttar Pradesh framed Statutes for the Allahabad University, and appended to the Statutes is an Appendix providing for 'election by proportional representation by means of single transferable vote.' This Appendix has been referred to specifically in the Statutes at two places only. Clause 48 of the Statutes provides that the representatives of donors on the Court must be elected according to the system of proportional representation by means of the single transferable vote as prescribed in the Appendix. So, also Clause 55 of the Statutes requires that twenty-five representatives of registered graduates on the Court must be elected according to the system of proportional representation by menus of the single transferable vote us prescribed in the Appendix. But as the Act requires that an election provided by it must be conducted according to the system of proportional representation by means of the single transferable vote and some of the clauses, e.g., Clause 62 of the Statutes also provide for an election on that basis then even though no specific, reference has been made to it recourse must be had to the Appendix whenever an election has to be conducted according to that system.

30. A perusal of the provisions of the Appendix will disclose, that a highly organised procedure has been set out. The Registrar is the Returning Officer for the conduct of all elections. The election of members of the Court representing the registered graduates and the donors, and such other elections as the Vice-Chancellor may direct, shall be conducted by postal ballot. All other elections are to be conducted at a meeting of the Authority or body concerned.

31. Where elections are to be held at a meeting of the Authority or body, paragraph 8 details the procedure. Names may be proposed for election and candidature may be withdrawn in advance or at the meeting. The voting paper supplied to voters must show the names of which notice was received in time for printing and should contain blank spaces for the addition of names including those proposed at the meeting. A notice of the meeting at which the election is to be held must be sent by the Registrar to each member. That notice must mention the time, date and place of the meeting and should be accompanied by a list of members. The Vice-Chancellor is required to fix the period of notice.

32. Now, what are the facts in the instant case As available from the affidavits, they appear to be these. The notice calling the meeting of the Executive Council was issued on April 29, 1964. The meeting was called for May 9, 1964. No agenda was circulated with the notice, and there is no dispute that the notice did not mention that at the meeting the members would be required to elect a person under Section 11 (4) (i) (a) to the Committee contemplated by Section 11. Some days later, an agenda was despatched to the members on May 4, 1964. It was apparently received by the members residing at Allahabad on May 5, 1964, but in respect of one member who admittedly resides outside Allahabad it is not known when it reached him. Sixteen members out of the twenty three members of the Executive Council were present in the meeting.

33. The agenda, it was admitted before me, contained a long list of items of business to be transacted at the meeting. The item relating to the election of a person under Section 11 (4) (i) (a) was only one of those items. The counter affidavit filed by the Vice-Chancellor states that when this item was taken up, as many as nine names, including that of Sri Sri Prakash, were proposed. This was followed by discussion, and, as it was generally felt that the election should be unanimous, all the names excepting that of Sri Sri Prakash were withdrawn. Since the only name left was that of Sri Sri Prakash the Executive Council passed a resolution unanimously electing him member of the Committee.

34. The question is whether upon these facts it can he said that the election was held in accordance with the procedure set out in the Appendix.

35. Now, there can be little doubt that when ultimately all the names, but, one, which had been originally proposed were withdrawn, and only one name remained, there was no occasion for supplying voting paper to the members present for recording their votes. There was only one candidate, namely Sri Sri Prakash, and he was unanimously elected. But what the petitioners say is that there was no attempt to follow the procedure contemplated by the Appendix. They point out that there is no material to show that the Vice-Chancellor fixed the period of notice, and that the notice was accompanied by a list of members. They also point out that the Registrar did not function as the Returning Officer. They urge that if it was intended to follow the procedure for calling a meeting of the kind required by Section 11 (4) (i) (a), the notice should have mentioned in its body, or should have been accompanied by an agenda disclosing, the purpose of the meeting, namely, the election of a person to the Committee for which provision was made in Section 11, They say that inasmuch as the notice did not comply with this requirement, that is good evidence to show that the meeting was regarded as merely one called for transacting the ordinary business of the Executive Council and not one for holding an election in accordance with the principle of proportional representation by means of the single transferable vote. It seems to me that there is force in this contention. The petitioners specifically took up the case in their petition and affidavits that the election of Sri Sri Prakash was not conducted in accordance with the principle of proportional representation by means of the single transferable vote.

It was for the respondents concerned to show that the requirements, such as arose for fulfilment on the circumstances of this case, had been complied with. It is not stated that the Vice-Chancellor fixed the period of the notice or that the notice was accompanied by the list of members. To the allegation that the Registrar did not act as the Returning Officer, no rebuttal has been attempted. All that has been paid is that the procedure followed at the meeting was the same as that followed on an earlier occasion. It appears to me that instead of calling a meeting for holding the election in accordance with the principle of proportional representation by means of the single transferable vote, the election was treated like any other item of routine business of the Executive Council, and the requirements of the Appendix were lost sight of altogether. That is the final impression that emerges from the mosaic of facts contained in the affidavits. In the circumstances, it must be held, on the principle laid down in Woodward v. Sarsons, (1875) 10 CP 733, and in our own country in Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 that the election of Sri Sri Prakash was void.

36. Now it is apparent that a meeting called for holding an election is a meeting called to transact a special business, and notice of such meeting must mention the nature of the business. It is true that paragraph 8 of the Appendix does not specifically state that the notice should state the purpose of the meeting. But that, I should think, is an essential requirement of such notice, and requires no specific provision in that behalf. Shakleton in his 'Law and Practice of Meetings' (Edn. 4, p. 22) states that--

'As to the essentials of a notice, it must state clearly the nature of any special business to be transacted. . . .'

In my judgment, it will not do to follow up the notice with an agenda some clays later mentioning the special business to be taken up at the meeting. This assumes importance when we bear in mind the significance of the requirement that the period of notice must be fixed. The period is fixed so that the notice is served upon the members well in time, enabling them during the period of notice to collect such information as they may need and to prepare themselves so as to effectively participate in the meeting. 'By a circulation of the agenda with the notice (unless the notice is incorporated with the agenda, as is sometimes the case) prior to the meeting, members have an opportunity of considering beforehand the business to be transacted.' (Shakleton) (Ibid, p. 91). The period of notice is fixed either by statute, rule or regulation, or as in the instant case is required to be fixed by the Vice-Chancellor.

37. In Ram Saran Das v. Municipal Board, Bulandshahr, Special Appeal No. 384 of 1959, dated 4-2-1960 (All), it was observed;

'This want of circulation of the notice sufficiently before the date of the meeting invalidates the proceedings of that meeting altogether. When the regulation laid down a minimum period which must elapse between the circulation of the notice and the holding of the meeting, it has some purpose and that purpose would be defeated if file requirement if not strictly complied with.

It was urged by Mr. Jagadish Swarup on behalf of the Municipal Board that since all the members of the board except one did actually attend the meeting it should be held that this defect in the circulation of the notice was immaterial and that it did not invalidate the proceedings of the meeting. We are unable to accept his suggestion on which this submission is based that the only purpose of the circulation of the notice is to give information of the date, time and place of the meeting to the members. The minimum period of five days may have been prescribed for other reasons. One such reason which we can think of may be that it was considered desirable that the members should have a sufficient period of time to consider the items of the agenda before they are called upon to attend the meeting and take decisions on the various items of the agenda. In our opinion, therefore, failure to circulate the notice in accordance with this regulation invalidated that meeting and as a result the special resolution which was passed at that meeting must be treated as a void resolution.'

38. Having regard to the nature of the business, namely, holding an election under Section 11 (4) (i) (a), which was to be transacted at the meeting, I am of opinion that the notice can be said to have been, completed only when the agenda was received by the members. Only then would they have notice of the purpose of the meeting. Each member would then be in a position to consider who, according to him, was the most appropriate person to be proposed for election, and in this behalf he would require adequate time to communicate with such person to secure his consent for proposing his candidature. On a relatively small, but nevertheless significant scale, the machinery of the election process would possibly be set in motion. Paragraph 8 of the Appendix contemplates the possibility of the proposal of names for the election in advance and even of names being withdrawn in advance. If all this requires, as it occurs to me it mast, a sufficient period of time, the importance of the period of notice and that the notice should slate that the meeting is being called for holding an election, becomes apparent. Inasmuch as the meeting was regarded as any other meeting of the Executive Council, and in the absence of anything on the record to show what was the period of notice, I would presume that it was intended to give, in accordance with Regulation 4 of the Regulations applicable to the Executive Council, not less than seven days notice of the meeting. If that is so, then the agenda haying been despatched to the members only tour days, before the meeting, it must clearly appear that the notice in respect of the proposed election was invalid, and, therefore, the election was void.

39. On behalf of the fourth respondent it is urged that the Executive Council should be likened to a Board of Directors of a Company, and as a notice of special business is not necessary for a Board of Directors so it must be held to be unnecessary for the Executive Council. I cannot accept this contention. The position in this respect of the Directors of a Company was examined by Lindley, J. In Compagnie De Mayville v. Whitley, (1896) 1 Ch 788 at p. 797, and he observed:

'It is not uncommon for directors conducting a company's business to meet on stated days without any previous notice being given either of the day or of what they are going to do. Being paid for their services--as they generally are, and as is the case in this company--it is their duty to go when there is any business to be done, and to attend to that business whatever it is: and I cannot now say for the first time that as a matter of law the business conducted at a directors' meeting is invalid if the directors have had no notice of the kind of business which is to come before them. Such a rule would be extremely embarrassing in the transaction of the business of companies.' The position of the Executive Council is in striking contrast in so far as these features are concerned. The Executive Council, it is true, is the executive body of the University, but there the resemblance ends.

40. Then, it is contended for the fourth respondent that whatever was done at the meeting of the Executive Council was protected from external review by the doctrine of internal management, and, therefore, it is not open to the petitioners to challenge the validity of the election. The doctrine or internal management, it is well settled, does not operate to protect ultra vires acts, and as I have held that the election was not held in accordance with the principle of proportional representation by means of the single transferable vote, a matter on which Section 28 (2) speaks in imperative terms, the election must be held void.

41. As regards the defect in the notice, on the assumption that it is capable of being waived, I am of opinion that the doctrine or waiver will not apply in the instant case as only 16 out of 23 members attended the meeting. It is only if all the members were present that the principle of waiver can be legitimately invoked; Re Express Engineering Works, 1920-1 Ch 466, It was upon that basis that this Court decided Municipal Board, Shahjahanpur v. Sukha Singh : AIR1937All264 .

42. It is also urged on behalf of the fourth respondent that those members who did not attend the meeting, at which the election was held, were present at the next meeting and confirmed the minutes of the election meeting, and therefore, it must be taken that they had no objection to any defects in the election meeting. The argument proceeds on a misconception of the nature of the act confirming the minutes of a meeting. The word 'confirm', it has been said, sometimes means Verify'; it is commonly used in that sense at meetings of public bodies, who confirm the minutes of their last meeting, not meaning thereby that they give them force, but merely that they declare them accurate; R. v. Mayor of York, (1853) 1 El and Bl 588 at p. 594.

43. In my judgment, the election of Sri Sri Prakash in the meeting of the Executive Council held on May 9, 1964, is void.

44. But the matter does not end there. The Committee met on September 12, 1664, and Sri Sri Prakash participated in its deliberations. The proceedings of the Committee concluded in its recommendations submitted to the Chancellor of the names of persons from amongst whom Section 11 (1) requires him to appoint the Vice-Chancellor. At the time when these proceedings were held and the recommendations made, it was not discovered that there was any defect in the election of Sri Sri Prakash and that he was not entitled to take part in the proceedings. Consequently, the provisions of Section 45 of the Act are attracted, and by the operation of those provisions, the proceedings taken by the Committee and the recommendations made by it are shielded from being invalidated. It Is urged by the petitioners that the Committee is not an Authority or other body of the University, and, therefore, Section 45 does not apply, There can be no dispute that the Committee is not an Authority of the University. But is it not a body of the University The Chancellor is an officer o! the University and he has been entrusted by the Act with the responsibility of appointing the Vice-Chancellor. The Vice-Chancellor, it must be remembered, is a whole-time officer of the University. In the appointment of the Vice-Chancellor, the Committee constituted under Section 11 (4) plays a vital role. It is constituted for the purpose--and, indeed, that is the sole reason for its existence--of submitting to the Chancellor the names of three persons suitable to hold the office of Vice-Chancellor.

This function it must perform when a vacancy is expected in the office of the Vice-Chancellor by reason of expiry of term or resignation, and also whenever so required by the Chancellor. The Chancellor must appoint the Vice-Chancellor from amongst the persons whose names are submitted to him by the Committee. He cannot override the recommendations or by-pass them. His choice is limited to the names recommended by the Committee. It is apparent from this that the Committee and the Chancellor constitute the machinery created by the Act for the selection of a person as Vice-Chancellor. The Committee is an integral part of the machinery, and until the Committee discharges its functions the Chancellor cannot appoint the Vice-Chancellor, unless perhaps he has recourse to his emergency powers under Sub-section (6) of Section 11. Ordinarily he cannot, and I am concerned with the ordinary exercise of his powers. The Committee, it is true, does not participate in the day to day administrative or academic life of the University. It may even be, as the petitioners say it is, a transient body, of limited life. But, nonetheless, it seems to be that it is a body of the University, a body entrusted with the necessary function of assisting the Chancellor in the selection and appointment of the Vice-Chancellor, a whole-time officer of the University described by Section 12 (1) as its principal executive and academic officer. The Chancellor and the Committee are the selected instrumentalities of the Act for achieving this purpose--a purpose which is the function of the University--and, therefore, I hold that the Committee is a body of the University.

45. Since Section 45 protects the recommendations of the Committee from being invalidated, the Chancellor is not deprived of his authority to consider them and act upon them.

46. Finally it remains for me to consider the preliminary objections taken by the respondents to the grant of relief upon this petition.

47. It is said that the petitioners are guilty of laches, that they could have brought the petition shortly after the meeting of the Executive Council held on May 9, 1964, but have brought the petition with gross delay. I am not impressed by this contention. In my opinion, the petitioners could legitimately wait for the Committee to start functioning before challenging its constitution. There is also nothing to show when the petitioners came to know that both the Chief Justice and Sri Sri Prakash had become members of the Committee.

48. It is also urged that an alternative remedy was available to the petitioners under Section 42 of the Act, and the matter should have been referred to the Chancellor for his decision. I am not satisfied upon the facts of the instant case and having regard to the nature of the questions raised that this remedy is an adequate or equally appropriate alternative remedy.

49. In view of my finding that Section 45 of theAct bars the grant of relief to the petitioners,this petition cannot succeed. The petition is,therefore, dismissed, but I make no order as tocosts.


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