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Dr. (Mrs.) Gyanwati Trivedi Vs. Dr. (Miss) Sarojini Varshney and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1970)IILLJ462All
AppellantDr. (Mrs.) Gyanwati Trivedi
RespondentDr. (Miss) Sarojini Varshney and ors.
Excerpt:
- - it has been held by the supreme court as well as by a full bench of this court that a quasi-judicial authority is bound to state reasons in support of its order. bat in the circumstances of this case there shall be no order as to costs here as well as in the writ proceeding......consequently the case was again adjourned to another date. on the adjourned date counsel for the visitor filed an affidavit of sri triyogi narain, under secretary to the government of india, ministry of education and youth services, new delhi. this affidavit narrates the circumstances preceding the alleged order of the visitor. paragraph 7 of the affidavit states that on receipt of the explanation of the university the matter was examined in detail by the ministry of education, government of india. a note containing the reply of the university to the show cause notice, comments of the ministry thereon, recommendation of the minister for education for annulment of the proceedings with reasons therefor, were submitted to the visitor for his approval. twelve paragraphs of the note have.....
Judgment:

S.N. Dwivedi, J.

1. In these appeals we are concerned with the order passed by the Visitor of the Banaras Hindu University do September 1, 1969. One of the appeals is filed by Dr. Gyanwati, and the other by the Visitor.

2. The order was made in these circumstances. The Banaras Hindu University has a College for the education of women This College is known as the Women's College. The post of the Principal of the College fell vacant in July, 1960. A number of candidates including the appellant, Dr. (Mrs.) Gyanwati Trivedi and Dr. (Miss) Sarojini Varshney, the first respondent, applied for the post. The Executive Council of the University constituted a Selection Committee for recommending names for the post. On December 13, 1968 the Selection Committee unanimously drew up a panel of two names. The names of the appellant and the first respondent were included in the panel. Thereupon on December 14, 1968 the Executive Council resolved to appoint the first respondent as the Principal.

3. The appellant then made a representation to the Visitor under Section 5(7) of the Banaras Hindu University Act (hereinafter called the Act) against the appointment of the first respondent. On May 9, 1969, the University was called upon to show cause why an order for the annulment of the proceedings relating to the appointment of the first respondent be not passed. On June 13, 1969 the University filed an explanation. On September 1, 1969 the Visitor allegedly passed the impugned order under Section 5(7) of the Act annulling the proceedings of the University relating to the appointment of the first respondent.

4. The first respondent then filed a writ petition in this Court against the order of the Visitor. The petition was heard by a learned single Judge. He allowed the petition and quashed the order of the Visitor.

5. Feeling aggrieved with the judgment of the learned single Judge, the appellant has preferred this appeal.

6. The case of the appellant before the learned single Judge was that the Selection Committee constituted by the Executive Council was not constituted in accordance with Statute 27(1)(b). This contention was not accepted by the learned single Judge.

7. Counsel for the appellant has recanvassed the argument before us. Counsel for the first respondent, on the other hand, has advanced as many as ten arguments in support of the judgment of the learned single Judge. As one of his arguments, which we are accepting, is determinative of the appeal, we do not think it necessary to mention and discuss all of his arguments. Nor do we think it necessary to deal with the argument of the appellant on merits. The decisive point is this: The Visitor has made no order in conformity with Section 5(7) of the Act.

8. Section 5(7), in so far as it is material for the case, provides: '...The Visitor may, by order in writing, annul any proceeding of the University which is not in conformity with this Act, the Statute or the Ordinances:....'

(emphasis added).

9. This point is discussed in the judgment of the learned single Judge. He did not accept the point. But some new material which was not before the learned Judge has been placed before us on behalf of the Visitor. As it seems to us to inject new vitality into the point, we shall place that material presently.

10. By virtue of Section 5(1) the President of India is the Visitor of the University. The Visitor has made no order as envisaged by Section 5(7). But Dr. P.D. Shukla, Joint Educational Adviser to the Government of India, Ministry of Education, in Delhi sent a communication to the Registrar of the Banaras Hindu University. As it is of importance, we are setting out the same in extenso. It reads:

Subject: Representation of Dr. (Mrs.) Gyanwati Trivedi regarding her non-selection for the post of Principal, Women's College.

I am directed to refer to the correspondence resting with your letter No...dated the 6th July, 1969 on the subject mentioned above and to say that all the materials on record including the explanation furnished by the University to toe show cause notice issued to the University in this Ministry's letter of even number dated the 9th May, 1969, have been carefully considered by the Visitor. After such consideration, the Visitor in exercise of the power conferred upon him by Section 5(7) of the Banaras Hindu University Act has been pleased to make the order that the proceedings of the University relating to and ending with the appointment of Dr. (Miss) Sarojini Varshney as Principal of Women's College shall be annulled.

In accordance with this order, you are hereby directed by the Visitor to restore the status quo as it existed before proceedings of the University which have been annulled and take such further steps as may be necessary to make the appointment to the post of the Principal, Women's College, as are required to be taken in conformity with the Act, Statute and the Ordinances.

(Emphasis added).

11. As the point was pressed before us with some vehemence on behalf o the first respondent, we asked counsel for the Visitor to file a copy of the order of the Visitor, if any. Consequently we adjourned the hearing of the case. On the adjourned date counsel for the Visitor showed to us the file concerning the subject matter in dispute. But when we asked him to show the file to counsel for the first respondent, he claimed privilege under Article 74 of the Constitution. Indeed an affidavit was presented before us on behalf of the Visitor in support of the claim of privilege. But we returned the affidavit and asked counsel for the Visitor to reconsider the matter. Consequently the case was again adjourned to another date. On the adjourned date counsel for the Visitor filed an affidavit of Sri Triyogi Narain, Under Secretary to the Government of India, Ministry of Education and Youth Services, New Delhi. This affidavit narrates the circumstances preceding the alleged order of the Visitor. Paragraph 7 of the affidavit states that on receipt of the explanation of the University the matter was examined in detail by the Ministry of Education, Government of India. A note containing the reply of the University to the show cause notice, comments of the Ministry thereon, recommendation of the Minister for Education for annulment of the proceedings with reasons therefor, were submitted to the Visitor for his approval. Twelve paragraphs of the note have been reproduced in paragraph 7. Paragraph 12 of the note is material. It is this: 'The Ministry of Education and Youth Services. agree with the views expressed above and recommends that the relevant proceedings of the University regarding the appointment of Principal, Women's College, may be annulled by the Visitor of the University in exercise of his powers under Section 5(7) of the Banaras Hindu University Act.' Paragraph 13 is also important. It is this: 'The approval of the President, in his capacity as the Visitor of the University, is solicited to the recommendation made in paragraph 12 above.' Paragraph 8 of the affidavit states that the advice and recommendation for the annulment of the proceedings of the University regarding the appointment of the Principal was 'approved' and signed by the Visitor in his own band. So it will now appear that the only order that the Visitor has made on the file is a monomial order, 'approved.'

12. It may be noticed that this single word 'approved' has been elaborated into a datailed communication by Dr. P.D. Shukla, Joint Educational Advisor to the Government of India, Ministry of Education. We have already quoted the communication in full. It may also be noticed that the context of the word 'approved' in the file positively excludes the second part of the communication regarding status quo anti from the scope of the word 'approved'. The second part of the communication has never received the approval of the Visitor and someone has taken the courage to include it in the communication with the authority of the Visitor. We desire to lay stress on this matter for we apprehend that such interpolations may often be made where the Visitor does not make an elaborate order of his own. Apart from the legality of the word 'approved', it appears to us to be desirable that the Visitor should himself pass an order. Indeed, Dr. S. Radhakrishnan, when he was the President of India and accordingly the Visitor of the University, used to pass an elaborate order. It would be batter if this practice is resumed.

13. The passing of an elaborate order by the Visitor also appears to be desirable for another reason. The office of the President of India and the office of the Visitor is polarised in one person. As the President of India he is bound to accept the advice given to him by any of his Ministers. As the Visitor of the University, he is not bound to accept the advice of any of his Ministers. The affidavit of Sri Triyogi Narain shows that it is usual for the President, in considering matters under Section 5(7) of the Act, to ask for advice on various points in a particular case and that he considers reasons contained in the advice before passing an order under Section 5(7). If the Visitor does not make an order of his own, the person affected by the order may be left guessing whether he has applied his own independent mind to the matter or has made the order in view of the binding advice of his Minister. An elaborate order of the Visitor will dispel any apprehension that he has made the order because he felt bound by the advice of his Minister.

14. Section 5(7) provides that the Visitor may 'by order in writing', annul any proceeding of the University. It is now necessary to consider whether there is any order in writing of the Visitor annulling the appointment of the first respondent, The communication sent to the University is evidently not the order of the Visitor within the meaning of Section 5(7). Accordingly it must be ignored.

15. We are unable to regard the word 'approved' as 'an order in writing' within the meaning of Section 5(7). Firstly, we think, we cannot look into the notings on the file. In Prag Das v. Union of India (1957) M.P.W.R. 448, the High Court of Madhya Pradesh had looked into the records of the Government and it had spelled out reasons for the order of the Government from the notings contained in the file although the order itself did not give the reasons. As regards this practice, the Supreme Court observed:

In our view the procedure followed by the High Court was irregular. It is not for the High Court to give reasons which the Government might have, but has not chosen to give, in support of its conclusion. Since no reasons were given in support of the order passed by the Central Government, the order was ex-facie defective, and the defect could not be remedied by looking into the file maintained by the Government and constructing the reasons in support of that order. The reasons in support of the order had to be recorded and disclosed to the parties concerned by the Central Government, the reasons could not be gathered from the notings made in files of the Central Government. Recording of reasons and disclosure thereof is not a mere formality. The party affected by the order has a right to approach this Court in appeal, and an effective challenge against the order may be raised only if the party aggrieved is apprised of the reasons in support of the order.

Having regard to this observation, it does not appear to us to be permissible to rely on the passages reproduced from the file in the affidavit of Sri Triyogi Narain.

16. Again, as the word 'approved' can by no amount of stretch be said to give the reasons in support of the order, it must be held that there is no 'order in writing' under Section 5(7). Under Section 5(7) the Visitor acts in a quasi-judicial capacity. The proviso to Sub-Section (7) of Section 5 obligates him to give a hearing to the University. It further obligates him to consider the explanation of the University, if any. So he is under a statutory duty to act judicially. It has been held by the Supreme Court as well as by a Full Bench of this Court that a quasi-judicial authority is bound to state reasons in support of its order. If the quasi-judicial authority ttojs not state the reasons in support of its order, the order is invalid. See Haji Manzoor Ahmad v. State of U.P. (1968) A.L.J. 809, and Ram Murti Saran v. State of U.P. (Writ No. 3755 of 1967 decided on 7.4.1970. We are bound by these Full Bench cases and accordingly we hold that the Visitor has made no order in accordance with Section 5(7).

17. The Special Appeals are accordingly dismissed. Bat in the circumstances of this case there shall be no order as to costs here as well as in the writ proceeding.


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