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Zaheer Ahmed, Bhopal and Anr. Vs. Hon'ble Kuladhipati, Bhopal University, Bhopal and Anr. (09.02.1983 - MPHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petn. No. 1123 of 1982
Judge
Reported inAIR1984MP26
ActsMadhya Pradesh Vishwavidyalaya Adhiniyam, 1973 - Sections 13(1), 13(2) and 13(3)
AppellantZaheer Ahmed, Bhopal and Anr.
RespondentHon'ble Kuladhipati, Bhopal University, Bhopal and Anr.
Appellant AdvocateL.S. Sinha, Adv.
Respondent AdvocateA.M. Mathur, Adv. General and ;K.L. Kathal, Govt. Adv.
DispositionPetition dismissed
Cases ReferredSee Biswanath Khemka v. Emperor
Excerpt:
.....university act, 1956, were held obligatory and an appointment of a vice-chancellor made out of a panel recommended by a committee appointed in contravention of the relevant provision was held illegal and was quashed by a division bench of this court in dr. a duly qualified person alone and none else should be recommended for appointment of a kulapati this is particularly so because if a panel is recommended to the kuladhipati in accordance with sub-section (1) and within the time specified therefor, then the kuladhipati has to appoint one of the persons so empanelled and has no further choice. it may be that the committee may find only one person or at times only two persons qualified to be recommended. it is not possible to comprehend that a panel of not less than three persons has to..........university act, 1956, were held obligatory and an appointment of a vice-chancellor made out of a panel recommended by a committee appointed in contravention of the relevant provision was held illegal and was quashed by a division bench of this court in dr. s. c. barat v. hari vinayak patasker, 1961 mplj 1316 : (air 1962 madh pra 73 and air 1962 madh pra 180).6. the function of a duly appointed committee under sub-section (2) or sub-section (3) of section 13, however, stands on a different footing. the committee to be so constituted consists of -- (i) person elected by executive council; (ii) the chief justice or a judge of the high court nominated by the chief justice, and (iii) a nominee of the kuladhipati. the categories of persons to be included in the committee is itself indicative.....
Judgment:

B.C. Verma, J.

1. The petitioners who are residents of Bhopal and are in-terested in the affairs of the Bhopal University, Bhopal, challenge, through this petition under Article 226 of the Constitution of India, the appointment of Shri R. C. Shukla, respondent No. 2. as Kulapati (Vice-Chancellor) of the Bhopal University.

2. Under the scheme of the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973 (Act No. 22 of 1973), (hereinafter referred to as the 'Adhiniyam'), a Kulapati of a University is to be appointed by Kuladhipati (Chancellor). For this purpose, the Kuladhipati is required to appoint a Committee of three persons including Chairman. The Committee is to recommend a panel of eligible persons to be appointed as Kulapati. On receipt of this panel, the Kuladhipati has to appoint one of the persons from that panel as Kutapati. Section 13 (1) of the Adhiniyam provides that a Kulapati shall be so appointed by the Kuladhipati out of the panel of not less than three persons recommended by the Committee.

3. In the present case, the panel so recommended consisted of only two persons including the respondent No. 2.

4. The contention of the petitioners is that the provisions of Sub-section (1) of Section 13 of the Adhiniyam are mandatory and the Kuladhipati gets a jurisdiction to appoint a Kulapati only out of the panel of not less than three persons recommended by the Committee or upon failure of the Committee to submit the panel, a person of his choice under Sub-section (7). It is, therefore, contended that the appointment of respondent No. 2 as Kulapati out of the panel of only two persons recommended by the Committee is not in accordance with the provisions of Section 13 (1) of the Adhiniyam, and, is thus without any authority of law and must, therefore, be quashed.

4. Section 13 of the Adhiniyam is as follows:--

'13. (1) The Kulapati shall be appointed by the Kuladhipati from a panel of not less than three persons recommended by the Committee constituted under Sub-section (2) or Sub-section (6):

Provided that if the person or persons approved by the Kuladhipati out of those recommended by the Committee are not willing to accept the appointment, the Kuladhipati may call for fresh recommendations from such committee;

Provided further that no person who has completed the age of 60 years shall be appointed as Kulapati.

(2) The Kuladhipati shall appoint a committee consisting of the following personas namely .-

(i) One person elected by the Executive Council;

(ii) the Chief Justice of Madhya Pra-desh High Court or a Judge of the Madhya Pradesh High Court nominated by him,

(iii) one person nominated by the Kuladhipati. The Kuladhipati shall appoint one of the three persons to be the Chairman of the Committee-

(3) For constituting the committee under Sub-section (2), the Kuladhipati shall, six months before the expiry of the term of Kulapati, call upon the Executive Council and the Chief Justice of Madhya Pradesh High Court to choose their nominees and, in the case of the latter to indicate if he would himself be willing to work on the committee and if any or both of them fair to do so within one month of the receipt of the Kuladhipati's communication in this regard, the Kuladhipati may nominate any one or both the persons as the case may be, and the person or persons so nominated shall be deemed to be the person elected or nominated by the Executive Council or the Chief Justice, as the case may be.

(4) No person who is connected with the University or any college shall be elected or nominated on the committee under Sub-section (2).

(5) The committee shall submit the panel within six weeks from the date of its constitution or such further time not exceeding four weeks as may be extended by the Kuladhipati.

(6) If for any reasons the committee constituted under Sub-section (2) fails to submit the panel within the period specified in Sub-section (5), the Kuladhipati shall constitute another committee consisting of three persons, not connected with the University or any College, one of whom shall be designated as the Chairman. The committee so constituted shall submit a panel of three persons within a period of six weeks or such shorter period as may be specified, from the date of its constitution.

(7) If the committee constituted under Sub-section (6) fails to submit the panel within the period specified therein the Kuladhipati may appoint any person whom he deems fit, to be the Kulapati.'

5. The provisions of Section 13 would indicate that the power to appoint a Kulapati of any University in the State vests in the Kuladhipati who is the Governor. Looking to the importance of the high office and in order to allow the concerned University also to have a say in the matter of appointment of its Kulapati, the legislature in its wisdom thought fit to appoint a Committee of three persons to recommend to the Kuladhipati names of qualified persons for the appointment as Kulapati. Such a committee is to be constituted in accordance with Sub-sections (2) and (3) of Section 13 of the Adhiniyam. A combined reading of Sub-sections (1) and (2) of Section 13 makes it clear that the power of the Kuladhipati in the matter of appointment of a Kulapati is not unfettered. His choice is limited to the persons recommended by the Committee constituted under Sub-section (2) or Sub-section (3). He can appoint a person of his choice as Kulapati of any University only upon failure of the committee to submit a panel within the specified time. It will, therefore, appear that although, the authority to appoint a Kulapati vests only in the Kuladhipati, the exercise of this statutory function is guided and controlled by the provisions of Sub-sections (1) and (2) of Section 13. The sine qua non of exercise of this jurisdiction is the appointment of a Committee and a panel of qualified persons recommended by such a Committee and only upon failure of the Committee to recommend a panel, the Kuladhipati is free to appoint a person of his choice. To this extent, similar provisions contained in Section 11 of the Jabalpur University Act, 1956, were held obligatory and an appointment of a Vice-Chancellor made out of a panel recommended by a committee appointed in contravention of the relevant provision was held illegal and was quashed by a Division Bench of this Court in Dr. S. C. Barat v. Hari Vinayak Patasker, 1961 MPLJ 1316 : (AIR 1962 Madh Pra 73 and AIR 1962 Madh Pra 180).

6. The function of a duly appointed Committee under Sub-section (2) or Sub-section (3) of Section 13, however, stands on a different footing. The committee to be so constituted consists of -- (i) person elected by Executive Council; (ii) the Chief Justice or a Judge of the High Court nominated by the Chief Justice, and (iii) a nominee of the Kuladhipati. The categories of persons to be included in the Committee is itself indicative of the importance of the function it is to perform while recommending any person to the high and responsible office of the Kulapati. The merits have to be investigated by the Committee only. A duly qualified person alone and none else should be recommended for appointment of a Kulapati This is particularly so because if a panel is recommended to the Kuladhipati in accordance with Sub-section (1) and within the time specified therefor, then the Kuladhipati has to appoint one of the persons so empanelled and has no further choice. The Committee therefore, cannot be expected always to empanel and recommend a certain minimum number for it may not find such number of qualified persons. It may be that the Committee may find only one person or at times only two persons qualified to be recommended. If, therefore, it is to be held that the Committee should always recommend a panel of 'not less than' three persons, even if not found suitable, then the selection/appointment of Kulapati may even be not possible. It is not possible to comprehend that a panel of not less than three persons has to be recommended irrespective of the fact that the committee is unable to collect names of three suitable end qualified persons. The person or persons to be recommended have to be qualified and deserving. To hold otherwise, would not only be unjust but also detrimental to the interest of the University and the students seeking education there. It will, therefore, be reasonable to hold that the panel of persons to be recommended by the Committee in terms of Sub-section (1) only means panel of qualified and suitable persons. Consequently, it will also be reasonable to hold that the committee may recommend panel of even less than three persons if it finds that three persons do not qualify for that office. This view finds support from a Division Bench decision of this Court in Dr. Ramsingh v. University of Saugar 1973 MPLJ 561 : (1974 Lab IC 20). That was a case of appointment of a Professor in the Saugar University. The Executive Council in that case was the appointing authority. Restriction on the exercise of that power was imposed by insertion of Section 41-A by the Madhya Pradesh University Laws (Amendment) Act, 1965. A Committee constituted under, that provisions was to recommend 'persons' and that the Executive Council could make selection out of the persons so recommended. Question arose whether the Committee was bound to recommend more than one person, as the relevant provision required the Committee to recommend 'persons' and not person. Speaking for the Court, G. P. Shigh J. (as he then was), while holding that plural shall include singular and therefore, the word 'persons' shall also include 'person' in the context in which the word appeared, observed at p. 566 : (at p. 23) of the report that-

'If out of the candidates whose merits have been investigated by the Committee only one is found to be suitable for the post, the committee cannot recommend more than one name, because a person can only be recommended if he is considered suitable for the post. If only one person is considered suitable, his name alone will be recommended. In case it is held that the committee must always recommend more than one name, it would be impossible to make a selection if only one person is found to be suitable. Such a result, cannot be assumed to have been intended, because it will create a deadlock in those cases in which the committee is unable to find more than one suitable person.'

7. Thus for what I have discussed above and looking to the object of the provisions contained in Section 13 of the Adhiniyam, which aims at securing appointment of a duly qualified person to the high office of a Kulapati of a University by the Kuladhipati with the assistance of a committee of intellectuals including the Judge of a High Court, and also in view of the setting in which Sub-section (1) of Section 13 containing the words 'panel of not less than three persons' appear, I am unable to agree with the learned counsel for the petitioner that these words are mandatory and a panel of not less than three persons recommended by the Committee is sine qua non for the exercise of jurisdiction by the Kuladhipati to appoint a Kulapati of any University. Shri L. S. Sinha, learned counsel for the petitioner and Shri A. M. Mathur. learned Advocate-General were at pains to cite texts and decisions to show when a given statute is obligatory and when it is only directory. I need refer only to the oft-quoted decision by Lord Champbell in Liverpool Borouph Bank v. Turner, (1981) 30 LJ Ch 379. The Law has been stated in these terms:--

'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatorywith an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered'.

See also State of U. P. v. Manbodhan Lal Shrivastava; AIR 1957 SC 912 at p 918 and Dr. S. C. Barat v. H. V. Pataskar, 1961 MPLJ 1316 : (AIR 1962 Madh Pra 73 and AIR 1962 Madh Pra 180). Reference may also be made to Maxwell on Interpretation of Statutes (Eleventh Edition) pages 363-364 where the following pertinent observations appear:--

'The reports are full of cases dealing with statutory provisions which are devoid of indication of intention regarding the effect of non-compliance with them...... It may, perhaps, be foundgenerally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.'

The learned author proceeds to say:--

'A strong line of distinction may be drawn between cases where the prescriptions of the Act affects the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall he performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to bedirectory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.'

Though generally a command in negative form is construed as mandatory, yet the principle is not without exception, and, decided cases are not wanting where, though expressed in negative terms, the provision has been construed to be directory only. See Biswanath Khemka v. Emperor, AIR 1945 FC 67. Thus the rule that the negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular enactment.

8. From the above statement of the law and in view of the intention of the provisions contained in Section 13 and from the object it seeks to achieve i. e., the appointment of a well qualified and suitable person to the office of a Kulapati, I am of opinion that while on the one hand it is obligatory on the part of Kuladhipati to appoint only that person as a Kulapati who has been recommended by the Committee appointed under Sub-section (2) or (3) of Section 13 and on its failure to so recommend, exercise his free choice to appoint any person, it is not mandatory for the Committee to always recommend a panel of 'not less than three persons'. This requirement of empanelling 'not less than three persons', is directory in nature and its substantial compliance will not render any appointment made out of that panel, invalid. In the instant case, therefore, the panel of two persons only recommended by the committee was in accordance with the statutory requirement. As the said panel included the name of respondent 2, his appointment made by the Kuladhipati as Kulapati of Bhopal University is valid. Accordingly, I uphold that appointment.

9. The petition is dismissed, but without any order as to costs. Security amount, if in deposit, be refunded to the petitioner.


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