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Dr. S.C. Barat and anr. Vs. Hari Vinayak Pataskar and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 229 of 1961
Judge
Reported inAIR1962MP73
ActsJabalpur University Act, 1956 - Sections 11, 11(2), 34 and 48; Constitution of India - Article 226
AppellantDr. S.C. Barat and anr.
RespondentHari Vinayak Pataskar and ors.
Appellant AdvocateR.S. Dabir, ;V.S. Dabir and ;R.P. Sinha, Advs.
Respondent AdvocateK.A. Chitaley and ;H.L. Khaskalam, Add. Govt. Adv. for Respondent No. 1, ;K.B. Sinha, Adv. for Respondents 2 and 5, ;A.P. Sen and ;A.H. Saifi, Advs. for Respondent No. 3
DispositionPetition allowed
Cases ReferredRex v. Mc Crae
Excerpt:
- - according to section 11 the vice-chancellor is appointed by the chancellor from a panel of not less than three names recommended by a committee constituted in accordance with sub-section (2). this committee is constituted by the chancellor and consists of three persons. learned counsel placed strong reliance on the king v. that on the failure of the executive council to appoint members under section 11(2) the chancellor had complete freedom under section 11 (3) to nominate any two persons on the committee; that under section 11(5) he had also the power to appoint any person as the vice-chancellor if the committee failed to submit the panel within the prescribed time; that if the executive council failed to make the appointment, the chancellor could nominate under section 11(3) any.....dixit, c.j.1. the petitioners in this application under article 226 of the constitution are members of the jabalpur university court. the applicant dr. s.c. barat is also a member of the executive council of the university and the other petitioner is a member of the academic council. they have filed this application for quashing by a suitable writ an order made by the respondent no. 1 the chancellor of the university, appointing the respondent no. 4, shri avadh bihari mishra, as the vice-chancellor and for the issue of suitable directions to the chancellor for the appointment of the vice-chancellor of the university in accordance with section 11 of the jabalpur university act, 1956.2. the material facts are that the term of the respondent no. 3, pt. kunjilal dubey, as the vice-chancellor.....
Judgment:

Dixit, C.J.

1. The petitioners in this application under Article 226 of the Constitution are members of the Jabalpur University Court. The applicant Dr. S.C. Barat is also a member of the Executive Council of the University and the other petitioner is a member of the Academic Council. They have filed this application for quashing by a suitable writ an order made by the respondent No. 1 the Chancellor of the University, appointing the respondent No. 4, Shri Avadh Bihari Mishra, as the Vice-Chancellor and for the issue of suitable directions to the Chancellor for the appointment of the Vice-Chancellor of the University in accordance with Section 11 of the Jabalpur University Act, 1956.

2. The material facts are that the term of the respondent No. 3, Pt. Kunjilal Dubey, as the Vice-Chancellor was due to expire on 11th June 1961, and the appointment of a new Vice-Chancellor had to be made. According to Section 11 the Vice-Chancellor is appointed by the Chancellor from a panel of not less than three names recommended by a committee constituted in accordance with Sub-section (2). This Committee is constituted by the Chancellor and consists of three persons. One of them is nominated by the Chancellor and the other two are appointed by the Executive Council in the manner laid down in Sub-section (2). That sub-section requires that two members 'shall be appointed by the Executive Council by single transferable vote from amongst persons not connected with the University or a college.......'

On 31st January 1961 the Chancellor called upon the Executive Council to choose its nominees. At a meeting held on 5th March 1961, the Executive Council appointed Shri Shriman Narayan, Member of the Planning Commission, and Dr. R.P. Tripathi as its nominees on the Committee. As Dr. Tripathi expressed his inability to be a member of the Committee except on certain conditions, the Chancellor called upon the Executive Council to appoint another person in place of Dr. Tripathi. The Executive Council then appointed Dr. Parija, Vice-Chancellor of tbe Utkal University, in place of Dr. Tripathi and informed the Chancellor accordingly. The Chancellor appointed Dr. Siddhanta, Vice-Chancellor of Delhi University, as his nominee on the Committee. On 11th May 1961, the Chancellor notified the constitution of the Committee for submitting to him a panel of not less than three names for appointment to the office of the Vice-Chancellor of the Jabalpur University. In the notification Dr. Siddhanta was shown as nominated by the Chancellor and the other two persons were described as 'elected by the Executive Council'.

The Committee submitted to the Chancellor a panel of three names on 22nd June 1961. Out of this panel of names the Chancellor selected Dr. Mishra for appointment as the Vice-Chancellor of the University. Dr. Mishra was informed accordingly on 31st July 1961 and he expressed his willingness to accept the office telegraphically and also by a letter of 4th August 1961. On 10th August 1961 the petitioner No. 2 addressed a letter to the Chancellor saying that the appointment of Shri Shriman Narayan by the Executive Council on the Committee constituted under Section 11(2) was illegal as he was a member of the Governing Body of the Govindram Sakseria Commerce College, Jabalpur, and was not, therefore, eligible for appointment; and that consequently the panel of names submitted by this Committee was illegal, and requesting the Chancellor to ask the Executive Council to appoint another person in place of Sri Shriman Narayan on the Committee and the Committee constituted with the new member be asked to submit a panel of names as required by Section 11(4) of the Act?

In the return filed on behalf of the Chancellor, it has been stated that the objection raised by the petitioner No. 2 in his letter of 10th August 1961 was considered but was found to be without any substance. The formal order appointing Dr. Mishra as Vice-Chancellor of the University was made on 14th August 1961. This petition was filed on 16th August 1961. The respondent No. 4, Dr. Mishra, has not yet entered upon the office of the Vice-Chancellor of the University.

3. The petitioners contend that the Committee which was constituted by the Chancellor under Section 11(2) was not validly constituted inasmuch as Shri Shriman Narayan, who was one of the members appointed by the Executive Council on the Committee, was disqualified from becoming a member of the Committee as being a member of the Governing Body of the Govindram Sakseria Commerce College, Jabalpur was 'connected with a college'; and that consequently the panel of names including that of Dr. Mishra submitted by the said Committee was invalid and no person selected from that panel could be validly appointed as Vice-Chancellor to succeed the present Vice-Chancellor. They, therefore, pray that the appointment of Dr. Mishra as the Vice-Chancellor be cancelled by a suitable writ and the Chancellor be required to exercise his power under the Act to appoint a Vice-Chancellor in accordance with law.

4. In the return filed on behalf of the Chancellor opposing the petition it has been stated that it was long after the Committee submitted the panel on 22nd June 1981 that an objection was raised as to the validity of its constitution; that the fact that Shri Shriman Narayan was connected with a college should not have been a secret to a large majority of the members of the Executive Council; that on a true construction of Sub-sections (2) and (3) of Section 11 the injunction addressed to the Executive Council in the choice of its nominees is directory and there was substantial compliance with the provision in that the Committee actually constituted was composed of three persons two of whom were wholly unconnected with the University or any college; and that the Committee as constituted did not suffer from any defect or disqualification and in substance fulfilled, the requirement of law that the majority of the members should be free from any parochial or local influences.

It has been further averred that if there was any defect in the appointment of the respondent No. 4 as the Vice-chancellor, it is cured by Section 48 of the Act; that the question of the validity of the appointment of members on the Committee by the Executive Council is a matter covered by Section 45 of the Act and the decision of the Chancellor on that question is final; that the right canvassed by the petitioners is not a common law right but a right created under the University Act and, therefore, the remedy as provided in the Act is exclusive; and that the petitioners are guilty of delay and laches and are not, therefore entitled to invoke the powers of this Court under Article 226.

5. The reply of the respondent No. 3, Shri Kunjilal Dubey, is also in a similar vein. In the return submitted by the respondents Nos. 2, 5 and 6 it is admitted that Shri Shriman Narayan is a member of the Governing Body or a College affiliated to the University of Jabalpur. The said respondents, however, say that this fact was not known to the Executive Council on 5th March 1961 when it appointed Shri Shriman Narayan on the Committee and that it came to the knowledge of the Members of the Executive Council only recently and further that if it had been within the knowledge of the Executive Council at the time of the making of the appointment the Executive Council would not have appointed him on the Committee. The respondent No. 4, Dr. Mishra, neither appeared nor filed any reply.

8. It was argued by Shri Dabir, learned counsel for the petitioners, that the effect of the provision in Section 11(2) that the persons to be appointed by the Executive Council on the Committee shall be from amongst persons not connected with the University or a college was to disqualify a person connected with the University or a college for appointment as a member of the Committee; that the provision thus being one prescribing a disqualification for an appointment was mandatory; and that though the Committee actually constituted consisted of two persons unconnected with a college, the panel submitted by it was vitiated by one person connected with a college taking part in the submission of the panel. Learned counsel placed strong reliance on The King v. North Worcestershire Assessment Committee, (1929) 2 KB 397 and on the observations of Lord Denman C. J. in R. v. Justices of Hertfordshire, (1845) 6 QB 753 at p. 756. He proceeded to say that the defect, in the appointment of Shri Shriman Narayan by the Executive Council or the panel submitted by the Committee was not validated by Section 48 for the reason that the defect was in the qualification of one of the members and not in his appointment by the Executive Council; and that the Committee constituted under Section 11 was not any 'administrative body or any authority under Section 21 of the University' and, therefore, Section 45 had no applicability.

It was said that there was no delay on the part of the petitioners in moving this Court as they were not aware of the fact that Shri Shriman Narayan was not qualified to be a member of the Committee until about the 10th August 1961 when the petitioner No. 2 addressed a letter to the Chancellor pointing out the defect In regard to the directions prayed for by the petitioners, learned counsel submitted that the fact that the respondent No. 4 had not assumed office or that the petitioners did not question the constitution of the Committee soon after it was notified and before it submitted the panel of names or that the petitioners had not prayed for the proper direction or writ could not stand in the way of this Court declaring the appointment of the respondent No. 4, Dr. Mishra, to be invalid and issuing a direction in the nature of mandamus to the Chancellor for making an appointment to the office of the Vice-Chancellor in accordance with Section 11. In support of this contention, learned counsel referred us to the statement in paragraph 165 at page 88 of Halsbury's Laws of England, Volume 11 (3rd Edition), The King (Roycroft) v. Justices of Petty Sessions Districts and Whitley, Ir R. (1910) 2 KB 601, and to the decision of the Supreme Court in Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869: (AIR 1951 SC 41). It is unnecessary to refer to several other cases to which our attention was drawn by the learned counsel for the petitioners.

7. On behalf of the Chancellor Shri Chitale maintained that the requirement that two members of the Committee should be unconnected with the University or a college or that they should be appointed by the Executive Council was not a mandatory one but directory only; and that as the Committee as constituted did include two persons who were not connected with any college, there was substantial compliance with Section 11(2). Shri Chitale's argument took more than one form. In the first place it was urged that the object of Section 11 was to place the appointment of the Vice-Chancellor above any parochial considerations) or any local influences and to secure the appointment of a person of merit, independence and standing as the Vice-Chancellor; that in order to secure this object Section 11 gave to the Chancellor the power of appointing the Vice-Chancellor; that Section 11 (2) was only intended to give an opportunity to the Executive Council to have its say in an indirect manner in the matter of the appointment of the Vice Chancellor; that on the failure of the Executive Council to appoint members under Section 11(2) the Chancellor had complete freedom under Section 11 (3) to nominate any two persons on the Committee; that under Section 11(5) he had also the power to appoint any person as the Vice-Chancellor if the Committee failed to submit the panel within the prescribed time; that the Committee constituted under Section 11 (2) for recommending a panel of names for appointment as Vice-Chancellor was thus of an advisory nature and, therefore, the provision in Section 11(2) that the members to be appointed by the Executive Council on the Committee should be unconnected with the University or a college was intended to be directory.

It was next said that under Section 11(2) it was not obligatory for the Executive Council to appoint any members on the Committee; that it was open to the Executive Council not to appoint any one but if it chose to make the appointments it had to appoint two persons not connected with the University or a college; that if the Executive Council failed to make the appointment, the Chancellor could nominate under Section 11(3) any two persons, unconnected with the University or a college, on the Committee; that, therefore, the mandatory requirement was only that two members of the Committee should be unconnected with the University or a college and not that the 'unconnected' members should have been appointed by the Executive Council; and that the Committee which was actually constituted did include two persons who were not connected with the University or any college and, therefore, the panel submitted by the Committee was a valid one. Thus, according to the learned counsel, the combined effect of Sub-sections (2), (3) and (4) of Section 11 is to impose only a condition precedent for the exercise of the power of appointment under Section 11(1), namely, that of obtaining a panel from a committee of three members two of whom are unconnected with the University or a college, and it is immaterial how the two unconnected persons become members of the Committee.

Learned counsel further submitted that on the failure of the Executive Council to appoint two persons unconnected with the University or a college on the Committee, the Chancellor could then nominate any two persons, and if it be taken that the two persons which the Chancellor could nominate should be persons not connected with the University or a college, then the composition of the Committee would be of three persons two of whom are unconnected with the University or a college and that if such a committee had been constituted it would have been no different in composition from the committee which submitted the panel to the Chancellor, and therefore it was said that the Committee could be regarded as a valid one under Section 11(3) and the panel submitted by it would also be valid.

In support of his propositions, learned counsel relied on the general principles stated in Maxwell on Interpretation of Statutes (10th Edn.) at page 376, and in Craies on Statute Law (5th Edn.) at pages 231 and 242, and on the observations made in State of U. P. v. Babu Ram, AIR 1961 SC 751, Banwarilal v. State of Bihar, AIR 1961 SC 849 and State of U. P. v. Manbodhan Lal, (S) AIR 1957 SC 912 on matters which should be considered in determining whether a provision is directory or mandatory. Reference was also made to Montreal Street Railway Company v. Normandin, AIR 1917 PC 142 to emphasize the point that the real object of Section 11(2) would not be defeated on the construction contended for and that, on the other hand, it would cause general inconvenience without promoting further the object of the provision it it were to be held that the omission to follow rigorously the provisions of Section 11(2) made the appointment of the respondent No. 4 ipso facto null and void.

8. Before us, learned counsel did not press the contention raised in the return of the Chancellor that the question of the validity of the appointment of Shri Shriman Narayan by the Executive Council was one on which the decision of the Chancellor was final. He, however resolutely urged that the Committee constituted under Section 11 was a body of the University and, therefore under Section 48 the panel submitted by the Committee could not be invalidated on account of the fact that of the two members appointed by the Executive Council only one was unconnected with the University or a college. It was said that this defect was not one which affected the substance as the Committee actually included two persons unconnected with the University or a college. Lastly it was submitted that a writ in the nature of quo warranto could not be issued as the respondent No. 4 had not assumed office and that a writ of mandamus also could not be issued as the petitioners had not shown that they had a real and special interest in the subject-matter and a specific legal right to enforce.

Learned counsel added that the petitioners' application invoking the power of this Court under Article 226 was a belated one as the fact that Shri Shriman Narayan was a member of the Governing Body of the Govindrarn Sakseria Commerce College, Jabalpur was well-known when he was appointed by the Executive Council and the petitioners could have taken appropriate steps for cancelling Shri Shriman Narayan's appointment before the Committee began functioning and submitted the panel of names to the Chancellor. Shri Sen, learned counsel appearing for the respondent No. 3 Shri Kunjilal Dubey, the present Vice-Chancellor, adopted the arguments advanced by Shri Chitale.

9. On the arguments addressed by the learned counsel appearing for the parties, the main point that arises for determination is whether when the Chancellor acts on a panel of names recommended by a Committee consisting of two persons appointed by the Executive Council and one appointed by the Chancellor the requirement that two persons appointed by the Executive Council should be persons unconnected with the University or a college is an absolute and a mandatory requirement the non-compliance of which has the effect of invalidating the proceedings of the Committee and nullifying the appointment of Dr. Mishra as the Vice-Chancellor. There can be no dispute as regards the general principles to be borne in mind in determining whether a statutory provision is imperative or directory. Those principles are well established. There is no general rule as to when an enactment should be regarded as absolute and when merely as directory.

The question whether a statutory provision is absolute or merely directory has to be determined not only on the language of the provision but also on the relation of that provision to the general object intended to be secured by it.

As Lord Penzance said in Howard v. Bodington, (1877) 2 PD 203, on the problem of determining whether a statutory provision is mandatory one 'cannot glean a great deal that is very decisive from a perusal of the cases''. He observed-

'They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of the Liverpool. Borough Bank v. Turner, (1860) 29 LJ Ch 827. Lord Campbell was then sitting as Lord Chancellor. In an appeal from the Vice-Chancellor, and in giving judgment, His Lordship said this:--

'No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of 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 construed.' I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.'

In Crawford on Statutory Construction it has been stated in paragraph 261 at page 516 that-

'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intenu is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.'

In the same book it has been observed at page 513 that-

''The basic test by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. In this way, the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the legislature intended that it be met; if found to be unimportant that it need not be met.'

Maxwell has drawn a distinction between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. In Maxwell on Interpretation of Statutes (10th edn.) it has been stated at page 376 that-

'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 be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory 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.'

At the same page there is also the statement that-

''It may, perhaps, be found generally 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 to 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.'

In AIR 1961 SC 751 (supra) K. Subba Rao J., delivering the judgment of the Court, after referring to those principles, said that-

'When a statute uses the word 'shall', prima facie it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.'

10. It is in the light of these principles the Section 11 has to be construed. The relevant portions of that section are as follows-

'11(1) The Vice-Chancellor shall be appointed by the Chancellor from a panel of not less than three names recommended by the committee constituted in the manner laid down in Sub-section (2):

Provided that the first Vice-Chancellor shall be appointed by the Chancellor. (2) The Chancellor, shall appoint a committee of three persons, two of whom shall be appointed by the Executive Council by single transferable vote from amongst persons not connected with the University or a college and the third shall be nominated by the Chancellor. The Chancellor shall appoint one of the three persons to be the Chairman of the Committee.

(3) For constituting the committee under Sub-section (2), the Chancellor shall, four months before the expiry of the term of the Vice-Chancellor, call upon the Executive Council to choose its nominees and if it fails to do so within one month of the receipt of the Chancellor's communication in this regard, the Chancellor may nominate any two persons and the persons so nominated shall be deemed to be the persons appointed by the Executive Council.

(4) The committee shall submit the panel within one and a half month from the date of its constitution.

(5) If the committee fails to submit the panel within the term specified in Sub-section (4), the Chancellor may appoint any person whom he deems fit to be the Vice-Chancellor.

It is evident that the appointment of the first Vice-Chancellor as well as of the succeeding ones is by the Chancellor. But whereas the selection of the first Vice-Chancellor was entirely at the discretion of the Chancellor the power of the Chancellor to appoint other Vice-chancellors is not unfettered. The Chancellor's choice of the person to be appointed as the Vice-Chancellor is limited to the persons included in the panel of names recommended by the Committee constituted under Sub-section (2) or Sub-section (3) as the case may be. It is only when the Committee fails to submit the panel within the time specified in Sub-section (4) that the Chancellor can appoint any person whom he deems fit to be the Vice-Chancellor. The sine qua non for the exercise of the Chancellor's power to appoint the Vice-Chancellor at his discretion is the failure of the Committee to submit the panel. The fact that in a certain contingency, namely, that indicated in Sub-section (5), the Chancellor can appoint any person whom he deems fit to be the Vice-Chancellor cannot by any stretch of reasoning be regarded as indicating that the appointment of the Vice-Chancellor is solely at the discretion of the Chancellor in all circumstances,

The fundamental contention of the learned counsel appearing for the Chancellor that the Chancellor has uncontrolled power of appointing the Vice-Chancellor is therefore altogether untenable. It is unrestricted only when the Committee fails to submit the panel. Otherwise it is restricted by the mode prescribed in Sub-sections (1), (2) and (3) by which, and by which alone, the Chancellor can appoint the Vice-Chancellor. The object of the provision is clearly to place beyond the pale of parochial or local influence or improper pressure the matter of the selection of the Vice-Chancellor, giving at the same time to the University, through its executive body viz. the Executive Council, an indirect voice in the matter of selection, The Vice-Chancellor is under Section 8 of the Act an officer of the University, Ordinarily, therefore, the proper authority to select and appoint the Vice-Chancellor would be the University Court or the Senate. But it is common knowledge that in Universities where the Vice-Chancellor, is selected by a process of election by the University Court or the Senate the selection is in many cases not entirely free from the trammels of political or party associations or parochial influence. Very often this has resulted in the appointment of a person not well-qualified or suited to fill the high office of the Vice-Chancellor. In order to avoid the play of these forces in the selection of a person for appointment as the Vice-Chancellor and to secure the services of a person of learning, qualifications, independence and standing for the University the Legislature devised the mode prescribed in Section 11.

The interposition of the Committee constituted under Sub-sections (2) and (3) between the Executive Council and the Chancellor has an importance of its own which must be recognized, whether the practical moment of this arrangement is really considerable or not. It is to control the power of the Chancellor in making the appointment of the Vice-Chancellor and to limit it to the selection of a person from a panel of names recommended by the Committee. It is also to give to the Executive Council an effective say in the matter of appointment and to make it feel a responsibility in the matter ay giving to the Executive Council the right of appointment of two out of the three members of the Committee who are unconnected with the University or a college. The two persons appointed by the Executive Council have thus a controlling voice in the preparation of the panel of names to be submitted to the Chancellor. It is also to make the two persons unconnected with the University or a college and appointed by the Executive Council feel that they sit on the Committee as representatives of the University and owe to it the duty and responsibility of recommending proper persons for appointment as the Vice-Chancellor, unmoved by any political considerations, or party associations or local influences. A construction, which may result in the very defeasance of this primary and real object, of the material sub-sections of Section 11 cannot clearly be adopted.

11. Now, turning to the actual language used in the aforesaid provisions, Section 11(1) says that the Vice-Chancellor shall be appointed by the Chancellor from a panel of not less than three names recommended by the committee constituted in the manner laid down in Sub-section (2). There cannot be any real doubt as to the meaning of the language used in this sub-section. It unmistakably shows that in making the appointment of the Vice-Chancellor, the Chancellor has to follow in the first instance the procedure of constituting the Committee spoken of in Sub-section (2) and that the Chancellor has not the liberty of appointing any person whom He deems fit to be the Vice-Chancellor; but his choice is limited to the persons included in the panel submitted by the Committee. Section 11(1) admits of no exceptions. It provides in no uncertain terms that the Chancellor must first follow the mode of appointment laid down in that sub-section and make the appointment on the basis of the panel of names recommended by the Committee constituted in the manner laid down in Sub-section (2). It would indeed be difficult to conceive how the Legislature could more plainly have indicated the intention that it was absolutely essential for the Chancellor first to follow the mode of appointment laid down in Sub-section (1) and that the appointment of the Vice-Chancellor was not entirely in his discretion but that he was bound by the recommendations made by the Committee. While contending that under Sub-section (1) the Chancellor had absolute and unrestricted power to appoint the Vice-Chancellor and the Committee constituted under Sub-section (2) or Sub-section (3) was only intended to help the Chancellor in taking a decision as to the person to be appointed as the Vice-Chancellor and was of an advisory nature, Shri Chitale did not go so far as to say that it was open to the Chancellor to make the appointment even without constituting any Committee. Yet that is the logical conclusion of his argument that the Chancellor's power of appointment under Sub-section (1) was not hedged in with any restrictions and the Committee constituted under Sub-section (2) was only advisory. Such a conclusion is not warranted by the language of Sub-sections (1), (2) and (3) of Section 11.

When the committee is validly constituted, then the panel of names recommended by it is binding on the Chancellor. The Chancellor cannot ignore it and proceed to appoint whomsoever he thinks fit to be the Vice-Chancellor. It is, therefore, erroneous to say that the Committee constituted under Sub-section (2) is only advisory in that it is open to the Chancellor to accept or ignore its recommendations. The panel of names submitted by the Committee is binding on the Chancellor. Learned counsel seemed to suggest that the Committee constituted under Sub-section (2) was somewhat analogous to a Public Service Commission and that as the advice of the Committee was not binding on the Government, so also the recommendations of the Committee were not binding on the Chancellor. He referred us to (S) AIR 1957 SC 913 where it has been held that the requirement of consultation in Article 320 (3) does not extend to making the advice of the Commission binding on the Government. There is no analogy between the Committee constituted under Sub-section (2) and a Public Service Commission.

What Section 11 (1) provides is that the Vice-Chancellor shall be appointed by the Chancellor from a panel of names submitted by the Committee and not that in making the appointment the Committee constituted under Sub-section (2) shall be consulted by the Chancellor. On the language used in Sub-section (1) it cannot be maintained that the Chancellor can disregard the recommendations of the Committee. It is true that under Sub-section (5) the Chancellor can appoint any person whom he deems fit to be the Vice-Chancellor. But that power is a contingent power and can be exercised only when the Committee fails to submit the panel. Therefore, the contention of the learned counsel for the Chancellor that Sub-section (1) gives absolute and unregulated discretion to the Chancellor in the matter of making the appointment of the Vice-Chancellor, and that the Committee constituted under Sub-section (2) is only ot an advisory nature cannot be accepted.

12. Proceeding now to Sub-section (2), it prescribes that the Chancellor shall appoint a Committee, of three persons two of whom shall be appointed by the Executive Council from amongst persons not connected with the University or a College and the third shall be nominated by the Chancellor. The third sub-section inter alia deals with the situation that may arise if the Executive Council fails to choose its nominees on the Committee, and provides that in that event the Chancellor may nominate any two persons and the persons so nominated shall be deemed to be the persons appointed by the Executive Council. It is plain from these two sub-sections that the Executive Council is not obliged to avail itself of the opportunity given by Sub-section (2) of appointment of two persons on the Committee. The Executive Council may or may not choose its nominees. But if it elects to choose, then its nominees must be persons who are not connected with the University or a college. The provision that the nominees of the Executive Council shall be 'from amongst persons not connected with the University or a college' is one prescribing a qualification and as disqualifying persons connected with the University or a college from being appointed as nominees of the Executive Council. This provision is clearly mandatory. Section 11(2) does not say that the persons to be appointed by the Executive Council shall so far as possible be persons not connected with the University or a college. There is, therefore, no question of substantial compliance with the qualification prescribed. A person is either qualified or he is not. There can be no degrees of compliance in this respect.

13. Learned Counsel for the Chancellor did not dispute that so far as the Executive Council was concerned the provision that the two persons to be appointed by it should be unconnected with the University or a college was mandatory and that the Executive Council could not appoint on the Committee any person who was connected with the University or a college. His contention upon these sub-sections was that they were really intended for securing that two members of the Committee were persons unconnected with the University or a college, and their appointment by the Executive Council was an immaterial matter. Learned counsel sought to reinforce this argument by demonstrating that under Sub-section (3) the Chancellor could nominate any two persons if the Executive Council failed to make the appointments. We are unable to assent to this argument. The effect of Sub-section (2) is plainly to provide that two persons not connected with the University or a college shall be appointed by the Executive Council. The Chancellor's nominee under Sub-section (2) may be any one.

It is true that if the Executive Council fails to choose its nominees then under Sub-section (3) the Chancellor can make two nominations. But the persons so nominated are deemed to be the persons appointed by the Executive Council. The provision in Sub-section (3) that 'the persons so nominated shall be deemed to be the persons appointed by the Executive Council' is very significant and shows that the persons nominated by the Chancellor under Sub-section (3) sit on the Committee not as the Chancellor's nominees but as 'fictional' nominees of the Executive Council, and that being so they must also be persons not connected with the University or a college. The words 'any two persons' in Sub-section (3) do not mean any two persons whether connected or unconnected with the University or a college. They take their colour from the deeming provision in Sub-section (3) and from the provision in Sub-section (2) about the persons disqualified to be appointed by the Executive Council and mean 'any two persons not connected with the University or a college.'' The provision that two persons not connected with the University or, a college should be members of the Committee as appointed by the Executive Council whether in reality under Sub-section (2) or by fiction under Sub-section (3) is one of substance and not of form which might be waived or a matter in which irregularity may be excused. As representatives of the Executive Council, the two unconnected members are in a better position to make recommendations in the best interests of the University than they would be otherwise.

The object behind Sub-sections (2) and (3) of making the unconnected members as nominees of the Executive Council is to make them feel that they are University representatives, and to secure that the Executive Council through its representatives shares a responsibility in the panel of names recommended by the Committee. If Sub-sections (2) and (3) are construed as the learned counsel for the Chancellor desired, then the whole object of having on the Committee two persons unconnected with the University or a college qua nominees of the Executive Council would be altogether defeated. In our opinion, under Sub-sections (2) and (3) it is not sufficient that two members of the Committee should be unconnected with the University or a college. It is also essential that they should be members of the Committee as persons appointed by the Executive Council. The fact that Sub-sections (3) and (5) provide for the contingency of the failure of the Executive Council to choose its nominees and of the failure of the Committee to submit the panel gives additional weight to the conclusion that the requirement in Sub-section (2) that two unconnected members must sib on the committee as nominees of the Executive Council is a mandatory requirement.

14. Having reached this conclusion, it is not necessary for us to enter into a detail examination of the further contention of the learned counsel for the Chancellor that even if Shri Shriman Narayan was not qualified to be appointed by the Executive Council under Sub-section (2) the Committee constituted was a valid one as it included two unconnected persons, namely, Dr. Siddhanta and Dr. Parija and the composition of the Committee was no different from that which would have been if the Chancellor had exercised his powers under Sub-section (3) of nominating any two persons on the failure of the Executive Council to choose its nominees. This contention must also be rejected. It is sufficient to point out that if for the purposes of Sub-section (3) the Executive Council can be regarded as having failed to choose its two nominees under 'Sub-section (2) if it appoints one qualified and the other disqualified, then the Chancellor has to nominate two other persons in place of the two appointed by the Executive Council. He cannot make the appointment of only one person under Sub-section (3) in place of the person who was appointed by the Executive Council but who was connected with the University or a college. Here on such failure of the Executive Council no nomination of any kind was made by the Chancellor under Sub-section (3).

Again, in the notification issued on 11th May 1961 (Annexure-III to the Return) announcing the constitution of the Committee, Dr. Siddhanta was shown as having been nominated by the Chancellor and the other two persons were shown as having been elected by the Executive Council. It is not as if the power under Sub-section (3) was exercised by the Chancellor and Dr. Siddhanta and Dr. Parija were appointed to the Committee as persons 'deemed to be persons appointed by the Executive Council'. The argument that as the Chancellor could have resorted to his powers under Sub-section (3) and the composition of the Committee would have been no different from that of the Committee which actually submitted the panel and that he could have also appointed any person to be the Vice-Chancellor Under Sub-section (5), therefore the panel submitted by the Committee was valid and the appointment of the respondent No. 4 was also valid is clearly insupportable. Sub-section (2) provides for a special action in special circumstances. The Chancellor having acted upon a panel submitted by the Committee constituted under Sub-section (2) Sub-section (3) could not be called in aid when no action of any kind was taken under that sub-section. Further Sub-section (5) does not override Sub-section (1) and cannot be invoked unless and until a valid committee constituted under Sub-section (2) or Sub-section (3) fails to submit the panel within the time specified in Sub-section (4).

15. The statement at page 376 in Maxwell on Interpretation of Statutes about the construction of a statute relating to the performance of a public duty, and the decision of the Privy Council in AIR 1917 PC 142 (supra), strongly rented upon by the learned counsel for the Chancellor, have no applicability here. The present case is not a case of the performance of a public duty or the neglect of duty as was the case of the Montreal Street Ry. Co., AIR 1917 PC 142 (supra). Here the question is of the construction of a provision by which power has been granted to the Chancellor to appoint the Vice-Chancellor. The power granted has to be exercised in strict compliance with the provision of law conferring it. In the case of the Montreal Street Ry. Co., AIR 1917 PC 142, the verdict of a jury was attacked on the ground that the trial was coram non judice and the verdict a nullity because certain elaborate and minute provisions made for the constitution of the jury had been disregarded in numerous respects. The Privy Council held that no prejudice had been caused to the objector and that in the absence of any such prejudice It would cause greatest public inconvenience if it were held that neglect to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared.

The objects of the provisions for the mode of preparing and revising the jury list which the Privy Council considered were: first; to distribute the burden of jury service equally between all liable to it; secondly, to secure for the use of the Courts effective lists of jurors likely to attend when called; and thirdly to prevent the selection of particular individuals for any jury, to avoid packing. In that case the question of the effect of a person, who had not the qualifications required by law for being included in the jury and trying an action did not arise. This is clear from the observations of Sir Arther Channell, who delivered the judgment of the Board, made while referring to the Canadian case Rex v. Mc Crae, 16 KB 103. The decision of the Privy Council in Montreal Street Railway Company's case AIR 1917 PC 142 is not an authority for the proposition that a statutory provision prescribing in a mandatory language qualifications for an appointment can be treated as merely directory on considerations of convenience and justice. Here Shri Shriman Narayan was not qualified to sit as a member of the Committee as a nominee of the Executive Council. The Committee being invalid, the Court will then hold that there is in fact no committee contemplated by Section 11(2) and the panel submitted by the Committee consisting of a member not qualified to sit on it cannot be regarded as a valid panel under Section 11 from which the Chancellor could make a valid selection under Sub-section (1).

The two English cases referred to by the learned counsel for the petitioners are also not in point. In (1929) 2 KB 337 the question that Was considered was whether the two persons, who had been appointed as members of an assessment committee, could be regarded as 'members of a committee to which the duties of the rating authority with respect to the preparation of the valuation list had been delegated' so as to disqualify them under Section 12 of Schedule I to the Rating and Valuation Act, 1925. The decision in that case turned upon the true meaning of 'delegation.' The other case, namely, (1845) 6 QB 753, was one where it was held that the decision in a case was vitiated by reason of one of the Magistrates hearing the case being interested in the result. It was further held that the decision was vitiated even if there was a majority in favour of the decision without reckoning the vote of the interested party. Here there is no question of the panel being vitiated because of any one of the members of the Committee being interested in the selection of a particular person as the Vice-Chancellor. The Committee was not validly constituted as Shri Shriman Narayan was not qualified to sit as a nominee of the Executive Council. There was, therefore, no committee in law for the purposes of Section 11 and the panel submitted by this Committee was altogether ineffective.

16. The contention founded on Section 48 that even assuming that the Committee was not properly constituted, its proceedings and the panel submitted by it are not invalidated by lack of qualification in one of its members, is not sound. Section 48 is in the following terms :

'No act or proceedings of any authority or other body of the University shall be invalidated on account of any vacancy in the membership or any defect in the election, nomination or appointment of any member of any authority or body of the University or any defect or irregularity in any such act or proceeding not affecting the substance.''

The argument was that the Committee constituted under Section 11(2) was a 'body of the University and the defect in the composition of the Committee was not one affecting the substance as the Committee did actually consist or two persons who were not connected with the University or a college. In our judgment, the Committee constituted under Section 11 (2) is not a 'body of the University'. The Committee is no doubt a body charged with the duty of preparing a panel. But it is not a 'body of the University.' Section 21 of the Act enumerates the authorities of the University.

The Act does not give any definition or description of 'body of the University.' But Section 34 says that subject to the provisions of the Act, the Statutes may provide inter alia for 'the constitution, powers and duties of such bodies as it may be deemed necessary to constitute from time to time,' Clause (b) of this section refers to the manner of election or appointment and the term of office of the members of the bodies referred to in Clause (a). It will, therefore, appear that the body of the University' spoken of in Section 48 means the one referred to in Section 34. Again, the scope of the general term 'other body is limited by the specific words 'any authority, with which it is associated.' It is legitimate to determine the meaning of any word or phrase that is ambiguous or susceptible to more than one meaning by a reference to the associated words, provided such a reading of it is not Inconsistent with the general intent and ambit of the provision to which the word has been used.

It has been stated in Maxwell on interpretation of Statutes (10th Edn.) at page 332 that

'When two or more words which are susceptible of analogous meaning are coupled together noscuntur a sociis they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general.'

The expression 'other body of the University,' therefore, means a body referred to in Section 34 and an administrative body of the University akin to an authority. The Committee constituted under Section 11 is clearly not such a body. Then again, as we have already endeavoured to point out, what is essential for a Committee constituted under Sub-section (2) or Sub-section (3) of Section 11 is that two members of the Committee must be unconnected with the University or a college and they must be on the Committee as nominees of the Executive Council, and not merely that two of the three members of the Committee should be unconnected with the University or a college. The defect in the composition of the Committee on account of one of the members sitting on it as a nominee of the Executive Council when he was not qualified to sit as a representative of the Executive Council is not, therefore, a defect of mere form. It is one of substance. From what has been said earlier about the importance of the requirement of two unconnected members sitting as representatives of the University, it is plain that the defect is one affecting the substance. The defect of the lack of qualification cannot also be said to be 'any defect in the election, nomination or appointment''. Section 48 is, therefore, of no assistance for contending that he appointment of the respondent No. 4 is valid.

17. It only remains to consider the objection that the petitioners are not entitled to any writ of mandamus as they have no real and special interest in the subject-matter and no specific legal right to enforce and further that they are guilty of laches and acquiescence. There is no force in this contention. It is well-settled that a person having a real and specific interest in the subject-matter of the petition is entitled to Initiate mandamus proceedings. The person applying for a writ of mandamus must have some interest in property, franchise or personal right, an injury to which alone can entitle him to ask for the issue of the writ. No particular quantum of right is necessary in order to entitle him to relief. It is not necessary that the person applying should have a special interest in the subject-matter. One of the petitioners here is a member of the Executive Council and the other of the Academic Council, The University is a corporate body constituted under the University Act and clearly all the members of the Court, the Executive Council, the Academic Council and even the Registered Graduates are all equally interested in the University functioning according to the provisions of the Act If, therefore, the appointment of the Vice-Chancellor of the University has been made illegally or contrary to the provisions of the Act then every such member has the right to question the validity of the appointment and ask for the issue of a writ of mandamus commanding the filling of the office in accordance with Section 11.

In regard to laches and acquiescence on the part of the petitioners, none is revealed in the material placed before us.' As is evident from Annexure-1 to the return of the Chancellor, the first petitioner did not attend the meeting of the Executive Council at which Shri Shriman Narayan was chosen by the Executive Council as one of its nominees. The other petitioner is not a member of the Executive Council but is of the Academic Council. It cannot, therefore, be maintained that they acquiesced in the appointment of Shd Shriman Narayan as a member of the Committee. The petitioners have stated that they were not aware of the fact that Shri Shriman Narayan was a member of the Governing Body of the Govindram Sakseria Commerce College, Jabalpur until near about 10th August, 1961, when the second petitioner addressed a letter to the Chancellor pointing out the defect. In the return filed on behalf of the respondents Nos. 2, 5 and 6 also it has been stated that this fact was not known to the Executive Council on 5th March, 1961 and that if it had been within the knowledge of the Executive Council at the time it made the appointment, it would not have made the appointment of Shri Shriman Narayan.

It has not been averred in the return of the Chancellor that the fact of the disqualification of Shri Shriman Narayan was known to the petitioners on 5th March 1961 or that they came to know of it soon after. All that has been stated is that Shri Shriman Narayan is a well-known educationist and a member of the planning Commission and his connection with an important College of Jabalpur should not have been a secret to a large majority of the Members of the Executive Council. This is only a surmise and not a denial of the statement of the petitioners that they were unaware of the fact until a few days before the filing of the petition. In these circumstances, it cannot be held that the petitioners have by their own conduct debarred themselves from questioning the validity of the appointment of the respondent No. 4 by these proceedings for the issue of a discretionary direction or writ under Article 226 of the Constitution.

18. As the respondent No. 4 has not entered upon, and begun to discharge the duties of, the office of the Vice-Chancellor, no direction in the nature of quo warranto can be made. But that does not make the petition a premature one or preclude the petitioners from claiming the issue of a writ of mandamus to compel the appointment of the Vice-Chancellor in accordance with Section 11. If, as we think, the selection of the respondent No. 4 for appointment as the Vice-Chancellor is void, then there is no lawful selection, and the appointment of the Vice-Chancellor in accordance with Section 11 remains to he made. In such a case, the proper remedy would clearly be one of mandamus for making the appointment in accordance with Section 11. This is clear from the decisions in Ir. R. (1910) 2 KB 601, and In re Barnes Corporation, (1933) 1 KB 668, and the statement in Halsbury's Laws of England (Vol. II) in paragraph 165 that a mandamus will be issued commanding election to an office when, although there has been an election to the office in question, yet that election is void, and that the Court will then consider that there has been in fact no ejection and the office is not therefore full.

19. For the foregoing reasons, our conclusion is that the appointment of the respondentNo. 4, Dr. Avadh Bihari Mishra, as the Vice-Chancellor of the Jabalpur University is invalidand that a new appointment in accordance with Section 11 must be made. Accordingly the orderdated the 14th August, 1961, appointing Dr.Mishra as Vice-Chancellor is quashed, and theChancellor is directed to make a fresh appointment in accordance with the provisions of Section 11 of the Act. There will be no order as tocosts. The outstanding amount of security deposit shall be refunded to the petitioners.


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