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N.P. Srivastaya Vs. Dr. Hari Vinayak Pataskar and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 357 of 1961
Judge
Reported inAIR1962MP221
ActsJabalpur University Act, 1956 - Sections 11(2), 11(3) and 11(8)
AppellantN.P. Srivastaya
RespondentDr. Hari Vinayak Pataskar and ors.
Appellant AdvocateR.S. Dabir and ;V.S. Dabir, Advs.
Respondent AdvocateM. Adhikari, Adv. General and ;R.J. Bhave, Govt. Adv. for Respondent No. 1 and ;K.B. Sinha, Adv. for Respondent Nos. 2 and 3
DispositionPetition allowed
Cases ReferredAct. (See Dr. S.C. Barat v. Hari Vinayak
Excerpt:
.....sub-section (3); that the committee which was constituted submitted the panel of names and the vice-chancellor was selected from the panel of names submitted by the committee but that the panel submitted by the committee was altogether ineffective as the committee not being validly constituted could not be regarded in law any committee contemplated by section 11 (2). 5. on the declaration made by us in 1961 mp lj 1316 :(air 1962 madh pra 73) (supra), there is no reason to think that the chancellor should have acted under sub-section (5) of section 11 when he was directed by us to make a fresh appointment of the vice-chancellor in accordance with section 11. that would have meant the supposition that a valid committee came into existence and it failed to submit the pa mishra did not..........has given rise to the contest is that some few months before the term of shri kunjilal dubey as vice-chancellor was due to expire, the chancellor called upon the executive council to choose its nominees under section 11 (2) of the act. this was on 3.1st january, 1961. pursuant to this direction of the chancellor, the executive council appointed shri shriman narayan and dr. parija, vice-chancellor of the utkal university, as its nominee on the committee contemplated by section 11 (2). the chancellor appointed the late dr. siddhanta, vice-chancellor of the delhi university, as his nominee on the committee. this 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 vice-chancellor.....
Judgment:

Dixit, C.J.

1. This is an application under Article 226 of the Constitution, for the issue of a writ of mandamus to the Chancellor of the Jabalpur University directing him to call upon the Executive Council of the University to elect two persona for being members of a committee to be constituted under Section 11 (2) of the Jabalpur University Act, 1956.

2. The controversy in the case is as to the legality of the direction issued by the Chancellor in November, 1961, to the Executive Council to elect one person to sit on the Committee in place of Shri Shriman Narayan. What has given rise to the contest is that some few months before the term of Shri Kunjilal Dubey as Vice-Chancellor was due to expire, the Chancellor called upon the Executive Council to choose its nominees under Section 11 (2) of the Act. This was on 3.1st January, 1961. Pursuant to this direction of the Chancellor, the Executive Council appointed Shri Shriman Narayan and Dr. Parija, Vice-chancellor of the Utkal University, as its nominee on the Committee contemplated by Section 11 (2). The Chancellor appointed the late Dr. Siddhanta, Vice-Chancellor of the Delhi University, as his nominee on the Committee. This 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 Vice-Chancellor of the University.

Before Dr. Mishra could enter upon the office of the Vice-Chancellor, the present petitioner along with Dr. S.C. Barat filed an application under Article 226 of the Constitution for quashing the order of the Chancellor appointing Mr. Mishra as 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 law. The validity of the order was challenged on the ground that the Committee, which the Chancellor constituted Under Section 11 (2), was not valid inasmuch as Shri Shriman Narayan, who was one of the members appointed by the Executive Council on the Committee, was disqualified from being a member as he was a member of the Managing Committee of the Govindram Sakseria Commerce College, Jabalpur, and that consequently the panel of names submitted by the said Committee was invalid and no person selected from that panel could be validly appointed as Vice-Chancellor to succeed Shri Kunjlal Dubey on the expiry of his term. That petition was allowed by us. We held that Shri Shriman Narayan was not qualified to sit on, the Committee as a nominee of the Executive Council; that the Committee was not, therefore, validly constituted; and further that the Committee being invalid, there existed no Committee in law for the purpose of Section 11 and the panel submitted by it was altogether ineffective. We quashed the Chancellor's order made on 14th August, 1961, appointing Dr. Mishra as the Vice-Chancellor and directed him to make a fresh appointment in accordance with the provisions of Section 11 of the Act. (See Dr. S.C. Barat v. Hari Vinayak, 1961 MPLJ 1316 at p. 1329 ; (AIR 1962 Madh Pra 73 at p. 80)).

Thereafter in November, 1961, the Chancellor directed the Executive Council to appoint, one person in place of Shri Shriram Narayan to act on the Committee of Selection for panel under Section 11. On receipt of this direction, the Executive Council elected one of our brother Judges, namely, the Honourable Shri Justice Naik, as a member of the Committee. The petitioner now contends that the Committee which the Chancellor had constituted previously and which submitted a panel of names leading to the appointment of Dr. Mishra as Vice-Chancellor became functus officio after it had submitted the panel; that while quashing the order of appointment of Dr. Mishra, this Court also held that the Committee which included Shri Shriman Narayan had no legal existence; and that therefore, when the Chancellor was directed by this Court to make a new appointment of the Vice-Chancellor in accordance with Section 11 he was bound to appoint a fresh committee of three persons and to command the Executive Council to elect two persons instead of one under Section 11(2) to sit on the Committee.

3. In order to consider the tenability of the above contention, it is first necessary to refer to the material provisions of Section 11. Sub-section (2) of Section 11 provides:

'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.'

The third sub-section inter alia, lays down that if the Executive Council fails to choose its nominees on the Committee, then the Chancellor may nominate any two persons and the persons so nominated shall be deemed to be the persons appointed by the Executive Council. Under Sub-section, (4) the Committee is required to submit the panel within one and a half, month from the date of its constitution. If the Committee fails to submit the panel within the time specified in Sub-section (4), then under sub-sec. (5) the Chancellor can appoint any person whom he deems fit to be the Vice-Chancellor. Subsection (8) says that in the event of the occurrence of any vacancy in the office of the vice-chancellor by reason of his death, resignation or otherwise, vacancy shall be filled as early as practicable in the manner laid down in Sub-section (1).

4. It was pointed out by us in 1961 MPLJ 1316 at pp. 1338 and 1340 : (AIR 1962 Madh Pra 73 and .180 at pp. 187 and 188) that the requirement in Sub-section (2) that the two members to be chosen by the Executive Council should be from amongst persons not connected with the University or a college is a mandatory requirement; that the Executive Council may or may not choose its nominees, but if it elects to choose then they must be persons who are not connected with the University or a college; that if the Executive Council fails to choose its nominees, then the Chancellor can nominate two other persons who must also be persons not connected with the University or a college, and if the Executive Council appoints) one qualified and the other a disqualified member on the Committee and if the Chancellor exercises his power under Sub-section (3), then he has to nominate two other persons in place of the two appointed by the Executive Council; and that 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.

We further held that the Chancellor did not regard that there was any failure on the part of the Executive Council to choose its nominees in accordance with Sub-section (2) and he did not make any nominations under Sub-section (3); that the Committee which was constituted submitted the panel of names and the Vice-Chancellor was selected from the panel of names submitted by the Committee but that the panel submitted by the Committee was altogether ineffective as the Committee not being validly constituted could not be regarded in law any committee contemplated by Section 11 (2).

5. On the declaration made by us in 1961 MP LJ 1316 : (AIR 1962 Madh Pra 73) (supra), there is no reason to think that the chancellor should have acted under Sub-section (5) of Section 11 when he was directed by us to make a fresh appointment of the Vice-chancellor in accordance with Section 11. That would have meant the supposition that a valid committee came into existence and it failed to submit the panel within the time specified in Sub-section (4). As Dr. Mishra did not enter upon and begin to discharge the duties of the office of the Vice-Chancellor, there could also be no question of any casual vacancy occurring in the office of the Vice-Chancellor as a result of our decision so as to attract Sub-section (8). The implication of our decision, by which the Chancellor was directed to make a fresh appointment in accordance with Section 11, is that the committee contemplated by Section 11(2) remains to be constituted and the matter of the constitution of the committee did not advance any further than the issue of a communication to the Executive Council to choose its two nominees under Sub-section (2) and the failure of the Executive Council to make the selection.

The committee constituted earlier, which Included Shri Shriman Narayan, having been declared as non-existent in law, the Chancellor has to proceed on a tabula rasa in making a new appointment of the Vice-chancellor in accordance with Section 11. That being the position, two courses are open to the Chancellor, namely, either to nominate under Sub-section (8) two persons who shall be deemed to be persons appointed by the Executive Council or to give another opportunity to the Executive Council to appoint two persons on the committee by single transferable vote, from amongst persons not connected with the University or a college. It is not permissible for the Chancellor to treat the old committee as still existing with a defect in it of the inclusion of a disqualified member and to proceed under Sub-section (2) or (3) to remove that defect by asking the Executive Council to elect one member only in place of Shri Shriman Narayan or to make a nomination of his own for replacing Shri Shriman Narayan.

It has been distinctly observed by us in paragraph 14 (at p. 1328 of M.P.LJ : at P. 79 of AIR) of our judgment in the earlier case that if the Executive Council appoints one qualified and the other a disqualified person on the committee then the Chancellor has to nominate two other persons in place of the two appointed by the Executive Council and that 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. This observation was made on the view that the selection by the Executive Council of one qualified and the other disqualified member is no selection at all under Sub-section (2) and constitutes a total failure of the Council to choose its nominees. The character of this failure is not changed if the Chancellor instead of nominating two persons under Sub-section (3) thinks it fit to ask the Executive Council to make a fresh selection of the members under Sub-section (2). If, therefore, on file selection of one qualified and the other disqualified member by the Executive Council under Sub-section (2) the Chancellor has a right to nominate two persons ignoring altogether the selection made by the Executive Council, then it stands to reason to hold that in adopting the alternative course of asking the Executive Council to make a fresh selection under Sub-section (2) the Chancellor must likewise ignore altogether the previous selection made by the Executive Council.

6. Indeed in the situation such as the one in the present case to make a nomination of one person under Sub-section (3) or to ask the Executive Council to elect, only one person under Sub-section (2) would mean doing something which is not warranted by Sub-sections (2) and (3). It is noteworthy that the selection of two persons by the Executive Council under Sub-section (2) or the nomination of two persons under Sub-section (3) is as a unit. That the Chancellor has to make two nominations when he exercises his powers under Sub-section (3) is plain enough from the language of that sub-section and is also now concluded by our decision in 1961 MP LJ 1316 : (AIR 1962 Madh Pra 73) (supra). Sub-section (2) of Section 11', when it lays down that 'The Chancellor shall appoint a committee of three persons, two of whom shall be appointed by the Executive Council by single transferable vote...... contemplates thai: the election of the two members by the Executive Council by single transferable vote shall be as a unit. That sub-section does not say that each of the two members shall be appointed by the Executive Council by single transferable vote. Under the single transferable vote the successful candidate is elected, not by a majority, but by a quota, that quota being one vote more than the number obtained by dividing the total number of valid votes by one more than the number of seats to be filled.

That being so, it makes a lot of difference in the voter's right and freedom to express his preferences for individual candidates accordingly as one person or two persons are to be elected at one time by single transferable vote. It also affects the chances of election of a person desiring to get elected. To illustrate, if all the members of a body, consisting of say twenty-one members, express their preferences at an election held for selecting two persons by single transferable vote, a person having the support of eight members and getting eight preference votes would be elected. But a person commanding the support of only eight members will have no chance of being selected in an election held for the selection of only one member by single transferable vote. Thus the chances of the group of eight of securing representation and also of the election of a person having the support of that group only are vitally affected accordingly as one or two persons are elected at a time by adopting the system of single transferable vote.

That being so, the provision in Section 11 (2), namely, 'two of whom shall be appointed by the Executive Council by single transferable vote.....' cannot be construed as meaning that each of the two members shall be appointed by single transferable vote. To do so would be to read words into the sub-section which are not there and to impair vitally the right of the members of the Executive Council of electing two persons at one time by single transferable vote. If it was really intended that the Executive Council should elect each of the two members by single transferable vote or that the Council in its discretion should elect one or two members at a time by that system, the Legislature would have made an express provision to that effect and would have also provided for the method of counting of votes where only one person is to be selected at the election. The Legislature would have also made a provision for meeting the contingency of a vacancy occurring by reason of one of the two members elected by the Executive Council not being able to function at all before the submission of panel due to death, resignation or otherwise. In the absence of any such express provisions, it would not be legitimate to import into the sub-section the element of the election of one member at a time by the Executive Council by single transferable vote.

In our opinion, under Sub-section (2) the election of two members by the Executive Council by single transferable vote has to be as a unit, every time the Council is called upon, to make the selection. It follows, therefore, that if the Selection of two persons made by the Executive Council is invalid or ineffective for any reason and the Council is required to make a fresh selection then it has to elect again two persons by single transferable vote. The direction of the Chancellor to the Executive Council to elect one person in place of Shri Shriman Narayan cannot, therefore, be held to be in accord with Section 11 (2).

7. The same matter can be considered from another point of view. The committee which, the Chancellor had constituted earlier, though invalidly constituted, fulfilled the purpose of its creation when it submitted a panel of names to the Chancellor. The Committee, therefore, became fungus officio. Having fulfilled the function of submitting a panel of names, it became of no further virtue or effect. There could, therefore, be no question of remedying any defect in the constitution of this committee and of that committee being asked to submit a fresh panel. The old Committee having ceased to exist, a fresh panel of names under Section 11 (4) can be submitted only by a new committee constituted under Section 11 (2). The composition of the new committee may not substantially differ from that of the old one. None the less, it would be a new committee and the member sitting on it would function as members) of the new committee and not of the old committee.

7a. Learned Advocate General appearing for the Chancellor drew our attention to the fact that prior to the filing of the previous petition disposed of by our decision in 1961 MP LJ 1316 : (AIR 1962 Madh Pra 73) (supra), the petitioner had addressed a letter to the Chancellor in which he had made the demand that the Executive Council be asked to appoint another person in place of Shri Shriman Narayan and that he had also made a similar prayer in that petition. It was said that it was because this demand was not satisfied that the applicant filed the previous petition and that he would have had no grievance if the demand had been complied with. It was suggested that the stand taken by the petitioner in the present case that the Executive Council should be called upon to elect two members instead of one is inconsistent with the attitude he took in the previous petition. The criticism made by the learned Advocate General is no doubt justified. But the petitioner's changing or misconceived conceptions as to the relief he should claim cannot preclude us from, or relieve us of, the duty of determining the legality of the direction to the Executive Council to elect one instead of two persons by single transferable vote and giving to the petitioner the correct legal relief.

8. The claim of the Chancellor for immunity under Article 361 must be rejected in view of our decision in 1961 MP LJ 1316 : (AIR 1962 Madh Pra 73) (supra).

9. For the foregoing reasons our conclusion is that the direction given by the Chancellor calling upon the Executive Council to elect one member in place of Shri Shriman Narayan is not valid. As the Chancellor has not preferred to make any nomination under Section 11 (3) and has allowed the Executive Council another opportunity of exercising its right of selecting two members on the Committee to be constituted under Section 11 (2), the Executive Council has the right to elect two members by single transferable vote. The committee now to be constituted will consist of two members who may be elected by the Executive Council and the person whom the Chancellor may appoint as the third member. The selection of the Vice-Chancellor has to be from the panel of names that may be submitted by this committee when fully constituted. Accordingly the direction given by the Chancellor to the Executive Council to elect one member and the election held by the Council pursuant to that direction are quashed and the Chancellor is directed to constitute a committee of two persons elected afresh by the Executive Council and one nominated by himself for the selection of the Vice-Chancellor. There will be no order as to costs. The outstanding amount of security deposit shall be refunded to the petitioner.


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