1. This is a petition under Article 226 of the Constitution of India which has been referred to a larger Bench in view of the nature of the points canvassed.
2. In 1944 the petitioner was appointed as a Professor of Chemistry in the University of Delhi. Consequent upon the appointment of Dr. Sashdri to the Chemistry Department where he was made the Head in 1949 certain disputes arose between the petitioner and the University which led to Civil litigation and certain other proceedings which it is unnecessary to mention. On 26th April, 1951 the services of the petitioner were dispensed with. The petitioner applied under Section 45 of the Delhi University Act, 1922 (hereinafter to be referred to as the Act) for a reference of the disputes between him and the University to a Tribunal of arbitration. No member of the Tribunal having been appointed on behalf of the University under the aforesaid section, Dr. M. N. Saha the member nominated by the petitioner, gave a decision on 17th June 1953 holding inter alia that the petitioner had been acting as the Head of the Chemistry Department till the 6th July 1949 and that his removal from Headship as also his dismissal later were unlawful and illegal. Dr. Saha, however, proceeded to give a declaration that the petitioner was still a Professor in the University. In August 1953 the University filed objections to the award of the Arbitration Tribunal. In May 1954 the award, excepting small portion thereof, was made a rule of the Court. The matter having been taken in appeal was ultimately decided by a Bench of this Court vide University of Delhi v. Or. S Dutt, 58 Pun LR 182. It was held that the appointment of Dr. Sana as the sole Arbitrator was valid but the appeal was allowed. Then following portion from the concluding part of the judgment of my Lord Falshaw (as he then was) may be set out :
'There is no doubt that the legality or propriety of the dismissal of Dr. Dutt was a matter which could be referred to the arbitrator for decision, but having decided that Dr. Dutt had been wrongfully and illegally dismissed 1 cannot see how it was open to the Arbitrator to grant Dr. Dutt a declaration that he was still a Professor in the University which no Court could or would give him, and obviously all that the arbitrator could then properly and legally have decided was the amount of compensation or damages to which Dr. Dutt's wrongful dismissal entitled to him. This part of the award and the decree based upon it are in my opinion wholly unenforceable and I consider that this amounts to an error on the face of the sward which renders it invalid and liable to be set aside.'
It is alleged in paragraph 11 of the petition that on 22nd March 1955 the petitioner made a representation to respondent No. 1, the Visitor of the University who is the President of India, under Section 7A of the Act, as amended in 1952, for the annulment of what are characterised as the illegal proceedings of the University by which the petitioner was being prevented from performing his duties as a Professor and receiving his legitimate salary as such. By a letter dated 8th May 1955 the Secretary to the President of India informed the petitioner that all the relevant papers had been forwarded to the Education Ministry. The Ministry acknowledged the receipt of this representation by a letter dated 2nd May 1955. On 17th February, 1955 the petitioner filed an application for leave to appeal to the Supreme Court against the judgment of this Court. The petitioner was informed by respondent No. 1 by a letter dated 18th June 1955 that 'action, if necessary, will be taken after the decision of the Supreme Court is known.'
On 21st June 1955 the petitioner addressed a communication to the Ministry taking up the position that the Ministry of Education had no powers under the Act to take any action in the matter and the powers which had been invoked vested under Section 7A in the Visitor alone which could not be delegated by him to anyone. The appeal to the Supreme Court was decided on the 3rd April, 1958, the decision being reported as Dr. S. Dutt V. University of Delhi, AIR 1958 SC 1050. The judgment of this Court was affirmed.
The petitioner wrote another letter on 19th September 1958 requesting respondent No. 2 to exercise his statutory powers under the Act as the case had been decided by the Supreme Court. Certain other communications followed. By means of a letter dated the 9th March, 1961, the Under Secretary to the Government of India, Ministry of Education, wrote to the petitioner as follows (copy Annexure 'B') :
'I am directed to refer to the correspondence resting with your letter dated the 11th January, 1961 on the subject mentioned above and to inform you that the 'resident, in his capacity as the Visitor of the University of Delhi, he has rejected your representations.'
The petitioner sent a letter dated 15th March 1961 questioning the right of respondent No. 2, namely, Secretary to the Central Government in the Ministry of Education to take a decision in the matter. It is stated in paragraph No. 21 of the petition that no decision was evertaken by the Visitor himself and that the alleged decisionwas given by some Secretary/Deputy Secretary/Under Secretary in the Government of India, Ministry of Education.This, according to the petitioner, is wholly illegal as thePresident of India was a 'persona designata under the Actand could not function as President under the Constitutionin that capacity. The Additional Private Secretary to thePresident wrote to the petitioner on 4th April 1961 thatalthough it was true that the President was the Visitorof the University but he did not function in his discretionor as the final Court of appeal in relation to the DelhiUniversity. It was the Ministry which should be approachedin all such matters. The petitioner filed an affidavit dated18th September, 1961, the paragraph 3 of which is asfollows :
'That the petitioner met the first respondent personally and was told that this function under Section 7A(7) of the University Act in the matter of the disposal of the petitioner's representation had been exercised by the Ministry in his name and that the first respondent had not personally given any decision in the matter,'
3. On behalf of respondent 1 and 3, an affidavit of Shri T. S. Bhatia, Under Secretary, Ministry of Education, has been filed in opposition to the petition. It is unnecessary to set out in detail the contents of the affidavit. It may be slated that no order or orders have been produced before us to show that the representation cr representations of the petitioner had at any stage or (sic) received the individual attention of the President of India or that he had made any orders thereon or in respect of them. The position taken up on behalf of the respondents substantially is that the Visitor Is identified with the President of India and as such he exercises his functions in the manner envisaged in the Constitution. It has also been strenuously contended by the learned Attorney General and 'ex facle' on the averments and the allegations contained in the petition as also the reliefs sought in the petition must fail (sic).
4. The Act was passed to establish and incorporate a unitary leaching and residential University at Delhi. Section 8 related to the officers of University. Some of the provisions before the enactment of amending Act 5 of 1952 may be noticed. Section 9 was as fellows:
'9. (1) The Chancellor shall be the Governor General. He shall by virtue of his office be the Head of % University and the President of the Court, and shall, when present, preside at meetings of the Court and at any Convocation of the University.
(2) The Chancellor shall have the right to cause an inspection to be made, by such person or persons as he may direct, of the University, its buildings, laboratories, equipment, and of any institutions associated with the University, and also of the examinations, leaching and other work conducted or done by the University, and to cause an Inquiry to be made in like manner in respect of any matter connected with the University. The Chancellor shall in every case give 'notice to the University of his intention to cairse an inspection or inquiry to be made, and the University shall be entitled to be represented thereat.
(3) The Chancellor may address the Vice-Chancellor with reference to the result of such Inspection or Inquiry, and the Vice-Chancellor shall communicate to the Executive Council the views of the Chancellor and shall, after ascertaining, if he so thinks fit, the opinion of the Executive Council, thereon advise the University upon the action to be taken thereon.
(4) The Executive Council shall report to the Vice-Chancellor for communications to the Chancellor such action if any as it is proposed to take of has been taken upon the results of such inspection or inquiry.
(5) The Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes.
(6) Every proposal for the conferment of an honorary degree shall be subject to the confirmation of the Chancellor.'
Section 11 provided that the Vice-Chancellor shall be appointed by the Chancellor after consideration of the recommendations of the Executive Council, Sections 13 and 14 empowered the Chancellor to appoint a Rector and a Treasurer respectively. Although in these sections the Chancellor being the Governor General was to act in his individual capacity, in certain other sections it was the Governor General in Council originally and later the Central Government (after the enactment of the Government if India Act, 1935) who was to take action. Section 22(c) Section 29 (4), (5) and (6), Section 31 (3), (4) (5) and (6), Section 36(4), Section 39 (1) and (2), Section 46(2) are the provisions where these expressions occur. Section 7A, which was inserted for the first time by amending Act 5 o( 1952, provided that the President of India shall be the Visitor of the University, Sub-sections (2), (3) (4) and (5) (6) of this section are almost the same as' appeared in similar Sub-section of Section 9. Sub-section (7) was aitogether, new and provided
'without prejudice to the foregoing provisions of this section the Visitor may, by order in writing, annul any proceedings of the University which is not in conformity with this Act, the Statutes or the Ordinances; Provided that before making any such order he shall call upon the University to show cause why such an order should not be made and, if any cause is shown within a reasonable time, shall consider the same'.
After the amendment of the Act in Section 31(3) the ward 'Central Government' is used whereas in Sub-section (5) the word 'Visitor' is used, although these provisions relate to the Ordinances of the University.
5. The main argument of Mr. R. S. Narula for the petitioner is founded on the scheme of the Act as enacted and as it obtains now and he has sought to establish that a very definite distinction was being maintained before and after the amendment of the Act between the functions of the Governor General and later on the Visitor which were to be exercised by him in his individual discretion and those which were to be exercised by him as Executive Head of the Government or, by the Government itself, and therefore, whatever powers were conferred by Section 7A, on the Visitor were to be exercised by him in his individual and personal capacity and not as President of India in his capacity as a constitutional head acting with the aid and on the advice of his Ministers. It has been-pointed out that no decision was ever given by the Visitor as such and the representations which the petitioner had been making to him have been disposed of by the Ministry which it was not empowered to do.
The learned Attorney General, however, contends that the Visitor under Section 7A, has to act in the capacity of President of India, that any legislation in respect of Delhi University would be covered by item 63 of List I in Schedule VII of the Constitution and as the executive power is co-extensive with the legislative power it is the President who is to function as such in respect of my powers which are conferred on him under the Act, though named a Visitor.
We have been referred to several provisions in the Constitution as also the authorities on the points by the learned counsel for both sides but it appears that this matter is merely of academic interest as we are Inclined to held that the petition cannot succeed on account of other infirmities which shall now be discussed, The letter dated the 9th March 1961 from the Ministry of Education (Annexure 'B') saying that the President in his capacity as Visitor had rejected the representations of the petitioner has already been set out before, in view of the decision in Ghaio Mal and Sons v. The State of Delhi, 1959 SCR 1424 : (AIR 1959 SC 65) the learned Attorney General has not been able to show how this letter could be treated as a properly authenticated order of the President to which presumption as raised by Art, 77 of the Constitution could attach. No other order has been produced to show that the representation of the petitioner had at any stage been disposed of by the President as Visitor of the University. The net result, therefore, is that the representation of the petitioner which he made to the Visitor in March 1955 has not yet been disposed of by him in any capacity whatsoever. In these circumstances the only relief which the petitioner could have claimed, and has indeed claimed, is that a writ in the nature of a mandamus be issued asking the Visitor to exercise his authority, power und jurisdiction under Section 7A(7) of the Act lo decide the aforesaid representation made by the petitioner. This is clear from the heading of the petition as also the reliefs contained in paragraph 27 of the petition. The other reliefs which have been claimed cannot be and do not arise until the petitioner can satisfy this court that It is a lit case In which the Visitor should be directed to perform his statutory functions enjoined on him by Section 7A(7) of the Act: 11 is noteworthy that in the petition as also in all the letters which the petitioner wrote from lime to time after sending the representation dated 22nd Match 1955 then he has asking the Visitor to take action only under Section 7A(7) ot the Act and in effect and substance his powers were not invoked under any other provision.
6. Now Section 7A(7) empowers the Visitor to annul any proceeding of the University which Is not in conformity with the Act, the statutes or the Ordinance. Thus the petitioner, must show that there was some proceedings of the University which he wanted to be annulled and which was not in conformity with the Act, the statutes or the Ordinance. For this purpose it is essential to turn to the representation (Exhibit R/2) submitted by the petitioner to the Visitor dated 22nd March 1955. After saying that serious irregularities and infringements of the Act have been committed by the Registrar and the Vice Chancellor in order to cause grave injury to the petitioner and after setting cut the disputes between him and the University the petitioner proceeded to give the background in which Dr. M. N. Saha was appointed as the Arbitrator. Then he set out the violations of the Act by the University which may be reproduced in his own words:-
'I asked the University, to appoint their own from the Executive Council as given under the Act. The Executive Council refused lo take any action in the matter. This was the first violation of the University Act by the University. After a due notice Prof. Saha became the Sole Tribunal under the University Act and he gave notice to the University to take part in his arbitration proceedings. The Registrar of the University however sent him an insulting letter and also told him at the start of his arbitration proceedings that he (Prof. Saha) had no jurisdiction to do anything in the matter and that I had no right for the appointment of Tribunal of Arbitration under the University Act and that I have no disputes with the University for adjudication. This was the second violation of the University Act by an official of the University, namely, the Registrar (Mr. T. P. S. Iyer). He had absolutely no authority for what he did. Prof. Saha who was perfectly legally appointed sole tribunal under the University Act, made careful inquiries Into the Registrar's objections, but found them to be wholly unauthorised and illegal. Thereafter he conducted inquiries into the disputes referred to him and gave his decision on the 17th June 1953. This was filed in Court by Prof. Saha himself so as to enable the Court to find out whether the arbitration as envisaged by the University Act was- correctly conducted by him. It was necessitated by the Registrar's objections, unauthorised and illegal though they were.
The Court gave notice to the parties on 17th July 1953 for any objections to the decision of prof. Saha. The Vice Chancel for and the Registrar filed objections against Prof. Saha's decision (award) on 3rd August 1953 without any authority from the University. This was the third violation of the University by two officials of the University. Under Section 15 of the University Act the decision of the Tribunal is final. By their objections the Registrar and the Vice Chanceller filed a hind of suit in court against the decision of the Tribunal which happened to be in my favour. The litigation was therefore started by the Delhi University against me. The suit continued in Court for nearly a year and was decided on the 27th May 1954. The University's objections were rejected and 1 was granted a decree in terms of the decisions of the Tribunal by the Court.
After this 1 wrote a letter to the Court '(Supreme Authority) of the University that in view of the decision of the tribunal now made a decree of the Court, I was continuing as 3 Professor of the University.
The Vice Chancellor (Dr. Mahajani in his personal capacity) replied to this letter that he 'refutes my allegation' that I continue as a Professor of the University and that I had no right to say so as I had been dismissed. He also further wrote that the University was going to appeal to a higher Court against the decision of the Lower Court. This was the fourth violation of the University Act by an official of the University, particularly by the Vice Chancellor, who under Section 111G(2) of the University statutes is particularly enjoined to see that the University Act and statutes are duly observed by every one concerned.'
The petitioner next proceeded to say some highly unsavoury things in a language most unbecoming of a person of the petitioner's education in the matter of the appointment of Mr. M. C. Setalvad, the former Attorney General, as counsel for the University for various proceedings as also against the judgment of this court by which the award was set aside. His principal grievance was that the award of the Tribunal was a decision 'and was not an award and no legal machinery existed for setting it aside.' The petitioner further Wrote:--
'Up till now it is only the University that has been doing the litigation against me who has' strictly followed the University Act all along, for getting my dispute settled. The University Act Is designed to administer inexpensive and speedy justice under Section 45 without any recourse to any litigation at all. But what can be done if the University in the hands of intriguing officials, and mercenary lawyers seeking continuous briefs, becomes bent upon litigation, particularly with the unlimited public funds at its disposal diverted to unacademic activities What can be done if the University refuses to abide by its own Act and statutes and openly disparages its own constitution passed by the Parliament of the country? The remedy lies with you. The matter has not yet gone to the Supreme Court, and is still not subjudice. It can therefore quickly be decided by you now under Section 7A(7) of the University Act.'
7. Coming to the alleged violations of the provisions of the Act, it is clear that the petitioner's allegations were confirmed only to the fact that the University did not appoint its own Arbitrator under 5. 45 and when the award was given by Dr. Saha the Registrar filed objections without any authority from the University and later on, when the petitioner wrote that in view of the decision of the Tribunal which had been made a rule of the Court he was continuing as a Professor of the University, the then Vice Chancellor sent a reply refuting the same and saying that the University would be lodging an appeal before a higher Court against the decision of the first Court. The sole grievance all the time apparently was that the decision of Dr. Saha, which ought to have been accepted as final by the University, had been challenged by various proceedings in Court resulting in the award being set [side.
The learned Attorney General has very rightly pointed out that the petitioner has not referred to any proceedings of the University which were not in conformity with the Act, the statutes or the ordinance. The proceedings of the University can have no reference to any letters or communications from the Registrar or the Vice Chancellor and no particulars or details have been given anywhere in the entire representation of the petitioner as to which proceedings or resolutions of the University were sought to be annulled on the ground that they were not in conformity with the Act, the statutes or the Ordinances. So far as the proceedings which led to the appointment of Dr. Saha as the Tribunal under Section 45 of the Act and the setting aside of his award are concerned, there was no question of their being not in conformity with the Act, the statutes or the Ordinances. Section 45 before the amendment which admittedly applied at the time when the Tribunal of arbitration was sought to be appointed by the petitioner clearly provided :
'Every such request shall be deemed to tie a submission to arbitration upon the terms of this section, within the meaning of the Arbitration Act, 1940, and all the provisions of that Act, with the exception of Section 2 thereof, shall apply accordingly'.
if any objections to the award given by the Tribunal were filed on behalf of the University under the Arbitration Act and the matter was taken to the Courts, it could not be said that anything was being done which was not in conformity with the Act etc. On the contrary the award could be challenged under the Arbitration Act and all the proceedings relating to its setting aside were in according with the provisions of that Act. When the award was set aside by this Court which decision was affirmed by the Supreme Court, the petitioner could not be heard to say that the University was violating the provisions of Section 45 by not accepting that award as final. Even Mr. R. S. Narula, counsel for the petitioner, has had some difficulty in showing which particular proceeding of the University was sought to be annulled. His suggestion is that when the Executive Council of the University refused to appoint a member of the Arbitration Tribunal, there was a violation of the provisions of Section 45. This was in 1953 and later on, whenthis Court held that the appointment of Dr. Saha as thesole member of the Tribunal was legally valid, no groundwhatsoever was left for any grievance which the petitioner might have had on account of the Executive Council, refusing to appoint a member on the Arbitration Tribunal.Even if the aforesaid proceedings of the University were tobe annulled by the Visitor, the position would not change-in any respect. Mr. Narula's further submission is thatalthough the petitioner has not expressed himself in ahappy and clear language in his representations what hewanted was that all the resolutions and proceedings relatingto the termination of his service and the refusal to treathim as Head of the Chemistry Department of the Universityshould be annulled. The representation does not justifythe position which is now being adopted. Indeed, what thepetitioner prayed for and desired was that the decision given by Dr. Saha should have been accepted and ail theproceedings of the University challenging that decisionshould be annulled by the Visitor. When the award hadbeen finally ordered to be set aside, it is difficult to how any decision contained therein could have a bindingforce or the stamp of finality under Section 45 so that the proceedings of the University in not accepting the awardcould be annulled under Section 7A(7) by the Visitor even ithe was so minded. :
8. If the petitioner wants us to issue a writ ct mandamus to the Visitor to decide his representation on which so far no decision has been given by him it is incumment on him to show that the matter falls within Section 7A(7) and that there was a distinct demand to annul some proceedings of the University which are not in conformity with the Act, the statute or the Ordinance. As pointed out before, the proceeding or proceedings with reference to which powers of the Visitor are invoked have not been particularised and those which have been indicated in the representation cannot possibly be regarded to fail within the words 'proceeding of the University'. It is well settled that 'A mandamus will not go when it appears it would be futile in its result' nor will it be issued for the gratification of mere curiosity without any some proper or definite purpose. The discussion above leaves no room for doubt that the petitioner cannot effectively invoke the powers of the Visitor under Section 7A(7) in respect of the representation made by him which is the foundation of his grievance. Moreover, as stated in Halsbury's Laws of England, 3rd Edition, Volume 11, at page 85, the grant of an order of mandamus as a general rule is a matter for the discretion of the Court. It is not an order granted as of right and it is not issued as a matter of course. Accordingly tha Court may refuse the order not only upon the merits but also by reason of special circumstances of a case. Keeping all these principles in mind we decline to exercise of powers under Article 226 of the Constitution by directing the issue of a writ in the nature of mandamus in the present case.
9. Mr. R.S. Narula has pressed us to decide the much debated question of the capacity of the Visitor in which he is to act under Section 7A(7) e.g., Whether he is to decide matters falling within that provision In his individual discretion or as President of India with the aid and advice of his Ministers as provided by the Constitution. The position taken up by Mr. Narula is that if the petitioner decides even at this stage to make a proper petition-to the Visitor for annulling particular proceedings of the University on the ground that they are not in conformity with the Act etc., it will be the Ministry of Education that will deal with the matter and give Us decision thereon and not the Visitor in his individual discretion. It is not the function of the Court to express opinion on points that may or may not arise in the future and what has to be seen is whether it is necessary to determine that question on the facts on which the present petition is based. As has been stated before, to our mind it is not at all essential to decide that matter for the purpose of disposing of this petition which for the reasons stated is dismissed. In the circumstances we leave the parties to bear their own costs.
10. I agree.
Tek Chand, J.
11. I agree.