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S.S. Goyal and ors. Vs. the University of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1135 of 1972
Judge
Reported inILR1975Delhi134
ActsDelhi University Act, 1922 - Sections 28; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantS.S. Goyal and ors.
RespondentThe University of Delhi and ors.
Advocates: P.P. Rao and; S.N. Chopra, Advs
Cases ReferredK. N. Guraswamy v. The State of Mysore and
Excerpt:
(i) delhi university calendar: ordinance 26 and appendix vii: election rules--vires of--whether ultra virus sections 23 & 28(a)(b) of the delhi university act : delhi university act, 1922.; that matters regulating election to the academic council have to be made by statutes as envisaged by section 23 and 28 and no other kind of rule would be valid. the election rules in appendix vii of the university calendar are ultra virus sections 23 & 28 of the delhi university act and under those rules no valid elections could be held.; (ii) delhi university act, 1922 - statutes and ordinances : elections to the academic council--election rules struck down as ultra virus the delhi university act--effect of--the said rules not deemed to be administrative instructions:; that rules for.....prakash narain, j.(1) by this petition under article 226 of the constitution of india the petitioners, who claim themselves to be 'teachers of the university,' seek to challenge the validity of, (a) the election of 10 teachers of the university of delhi to the academic council of the delhi university, (b) the rules under which the said 10 teachers of the university were elected to the academic council and (c) the constitution of the academic council.(2) the delhi university has been constituted under and by virtue of the provisions of the delhi university act, 1922, hereinafter referred to as the act. by virtue of the provisions of sub-section (2) of section 3 the university shall have perpetual succession and a common seal and shall sue and be sued by the said name, namely, university of.....
Judgment:

Prakash Narain, J.

(1) By this petition under Article 226 of the Constitution of India the petitioners, who claim themselves to be 'teachers of the University,' seek to challenge the validity of, (a) the election of 10 teachers of the University of Delhi to the Academic Council of the Delhi University, (b) the rules under which the said 10 teachers of the University were elected to the Academic Council and (c) the constitution of the Academic Council.

(2) The Delhi University has been constituted under and by virtue of the provisions of the Delhi University Act, 1922, hereinafter referred to as the Act. By virtue of the provisions of sub-section (2) of Section 3 the University shall have perpetual succession and a common seal and shall sue and be sued by the said name, namely, University of Delhi. This statutory body is to have officers mentioned in Section 8 and certain statutory authorities set out in Section 17. One of the authorities of the University is the Academic Council and yet another is the Executive Council. Section 21 provides that the Executive Council shall be the executive body of the University, and its constitution and the terms of office of its members, other than ex-officio members, shall be prescribed by Statutes. Similarly, Section 23 lays down :

'THEAcademic Council shall be the academic body of the University and shall subject to the provisions of this Act, the Statutes and the Ordinances, have the control and genenad regulation, and be responsible for the maintenance of standards of instructions, education and examination within the University, and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. It shall have the right to advise the Executive Council on all academic matters. The constitution of the Academic Council and the terms of office of its members, other than ex-officio members, shall be prescribed by the Statutes.'

(3) Section 25 sets out that subject to the provision of the Act, the constitution, power and duties of the authorities of the University shall be provided for by the Statutes. Section 28 lays down that subject to the provisions of the Act, the Statutes may provide for all or any of the matters enumerated in Section 28. Two such matters for which Statutes may be framed are :

(A)the constitution, power and duties of the Court, the Executive Council, the Academic Council, the Finance Committee and such other bodies as may be deemed necessary to constitute from time to time;

(B)the election and continuance in office of the members of the said bodies, including the continuance in office of the first members, and the filling of vacancies of members, and all other ma,tters relative to those bodies for which it may be necessary or desirable to provide.

(4) Section 29 lays down that on the commencement of the Delhi University (Amendment) Act, 1943, Statutes of the University shall be those set out in the Schedule. Sub-section (2) of this section gives power to the Executive Council to make new or additional statutes or amend or repeal the existing ones. If any Statute is to be made or amended or repealed affecting the status, powers or constitution of any authority of the University, the Executive Council is enjoined not to make, amend or repeal any such Statute until the authority affected has been given an opportunity of expressing an opinion in writing on the proposed changes and that opinion has been considered by the Executive Council. A further restriction vis-a-vis the Academic Council is that no Statute can be changed, made or repealed by the Executive Council except with the prior concurrence of the Academic Council which may affect the powers, duties and constitution of the Academic Council and other matters set out in the second proviso to sub-section (2) of Section 29 of the Act.

(5) Section 30 of the Act authorises making of sta,tutes and ordinances regarding certain matters. I have already noticed how statutes are to be made and who has to make them. Section 31 lays down that ordinances as in force immediately before the commencement of the Delhi University (Amendment) Act, 1952 may be amended, repealed or added to at any time by the Executive Council.

(6) The other relevant sections which may be noticed are Sections 41, 43 and 44. Section 41 lays down that if any question aries whether any person has been duly elected, or appointed as, or is entitled to be, a member of a,ny authority or other body of the University, the matter shall be referred to the Chancellor, whose decision thereon shall be final. Section 43 deals with filling of casual vacancies in any authority or body of the University while section 44 lays down that no act or proceedings of any authority or other body of the University shall be invalidated merely by reason of the existence of a vacancy or vacancies among its members.

(7) The relevant Statutes may next be noticed. Statute 5 sets out as to who all shall be the members of the Executive Council. Statute 7 sets out as to who all would compose the Academic Council. Clause (viii) of Statute 7 reads :

'TENteachers of the University elected from amongst themselves by the teachers, other than those falling under item (i) to (vii): Provided that at least two such teachers shall be Readers and at least two shall be Lecturers;'

(8) As noticed earlier, Section 30 of the Act authorises that subject to the provisions of the Act and the Statutes, Ordinances may be issued for all or any of the matters set out in the said Section. Ordinance 26 is purported to have been issued and amended under this power, it is the respondents' case that the rules of elections to the various authorities were framed under Ordinance 26. The relevant rules for our purpose are Rules I, Xiii, Xiv and XV.

(9) Rule I lays down that election to the authorities mentioned in it will be held on the system of single transferable vote in accordance, with the other provisions of the rules. Rules Xiii, Xiv and Xv read as under :-

' XIII.If the number of candidates nominated is less than the number of vacancies to be filled, the Vice-Chancellor will appoint a further period within which further nominations will be received and may thereafter appoint addition further periods until the number of candidates nominated is not less than the number of vacancies to be filled.

XIV.If the number of candidates nominated is equal to the number if vacancies to be filled, the candidate so nominates shall be declared to have been elected.

XV.If the number of candidates nominated exceeds the number of vacancies, election will be held in the manner prescribed hereinafter.'

(10) As the terms of 10 'teachers of the University' as members of the Academic Council w,a,sto expire on September 18, 1972, a notice dated August 17, 1972, was published under the signatures of the Registrar, University of Delhi, Delhi, respondent No. 3, notifying the dates of the receipt and scrutiny of nomination papers, withdrawal of nominations and for holding elections to the Academic Council for 10 seats reserved for 'teachers of the University'. According to the said notice scrutiny of nominations was to take place on August 27, 1972. After scrutiny of the nomination papers filed 19 were found valid. On August 28, 1972, 18 candidates withdrew their candidature. Respondent No. 4 alone did not withdraw. On September 12, 1972 respondent No. 4 was declared elected to the Academic Council and his tenure commenced on September 19, 1972. On September 26, 1972 respondent No. 3 issued another notice for election to the remaining 9 seats. Representation of petitioner No. 1 that the election so conducted was illegal was rejected and election to the 9 seats took place on December 3, 1972. Petitioner No. 1 was one of the persons elected. Even after election he represented to the Vice-Chancellor, respondent No. 2, as well as the Chancellor of the University that the election and filling of seats was illegal but to no avail. On November 13, 1972 petitioner No. 1 resigned his seat from the Academic Council and he along with others filed this petition and obtained a rule nisi on November 28,

(11) The petitioners contend that the elections referred to above were held without authority of law and under rules not warranted by the Act or the Staves of the University. In consequence, it has been urged, the Academic Council was not properly constituted and respendents 4 to 12 cannot be regarded as having been validly elected to the Academic Council. It is further averred that assuming the rules under which the elections were held were valid, even those rules were not complied with inasmuch as piecemeal elections were held.

(12) The contentions of the petitioners raised in the petition have been disputed on behalf of respondents 1 to 3 in the affidavit of Shri K. P. Govil, Registrar, University of Delhi, filed by way of return to the rule nisi. It has been averred that the elections as held were perfectly valid and in accordance with law. The election rules relied upon were the rules of election to various authorities framed under Ordinance 26. The specific rules relied upon were Rules 13, 14 and 15.

(13) Mr. P. P. Rao, learned counsel for the petitioners, has raised four contentions. These are :

1The Election Rules set out in Appendix Vii to the Ordinance 26 are ultra virus Section 23, 25, 28(a.) and (b) and consequently the election of Respondents Nos. 4 to 12 is illegal and void.

2.The Act and the Statutes require that all ten teachers must be elected to the Academic Council at one and the same time, and not in Installments.

3.The notification dated 12-9-1972 declaring respondent No. 4's election to the Academic Council violates Stutes 7(l)(viii) and Rules I, Xiii, Xiv and Xv of the Election Rules.

4.The election of respondents Nos. 5 to 12 on a subsequent date for the remainder of the term is illegal and violates Statutes 7(l) (viii), 7(2) and Rules I, Xiii, Xiv and Xv of the Election Rules.

(14) The election of the 'teachers of the University' to the Academic Council is stated to have been held under rules of election mentioned in Appendix Vii to Ordinance 26 by virtue of a resolution of the Executive Council. Factually, the resolution refers only to the University Court. thereforee, even if these rules were validly made the same do not apply to elections to the Academic Council. Apart from rules of election have to be made by Statutes and not by Ordinances or resolutions of the Executive Council. Section 23 which has already been road, inter alia, lays down that the constitution of the Academic Council and the terms of office of its members, other than ex-officio members, shall be prescribed by Statute. Section 28 lays down that the Statutes may provide for inter alia, the election and continuance in office of members of Academic Council and other bodies mentioned in Clause (a) of Section 28. This means that it is by issue of Statutes alone that provision can be made as to who all will be members of the Academic Council, how those members are to be elected or nominated, if they are to be elected how and in what manner elections will be held etc. The Ordinances contemplated by Section 30 of the Act do not postulate or authorise the issue of an ordinance with regard to elections. It has, thereforee, to be held that there being no Statute regarding holding of elections to the Academic Council, the rules relied upon or the resolution mentioned in the return of respondent No. 3 cannot give validity to the elections held there under.

(15) In Civil Writ No. 1553 of 1967, S. S. Goel v. The University of Delhi and others, decided on April 17, 1968 (l) a bench of this Court was concerned with examining the validity of a notice for holding election of two teachers to the Academic Council. It was observed after noticing all the relevant provisions of the Act, the Statutes and the Ordinances:-

'THEREis no provision in the Act or in any Statute under which the constitution of the Academic Council, the election of its members, the right of voting or the terms of the members of the Academic Council may be provided for by the Ordinances . . . If the constitution and election of the Academic Council is to be provided by a Statute, the Ordinance cannot make any provision in this behalf unless such a power is conferred either by the Act or by any Statute'.

(16) The specific point before the Bench in the above case was the validity of the electoral roll prepared under Ordinance 24. It was held that such a provision could not be made by an ordinance and that the 0rdina,nce relied upon was ultra virus Sections 23 and 28 of the Act. In short the law laid down by this court is clear that matters regulating election to the Academic Council have to be made by Statutes as envisaged by Sections 23 and 28 and no other kind of rule would be valid. I, accordingly, hold that the election rules relied upon by the respondents 1 to 3 vis-a- vis the impugned election are ultra virus Section 23 and 28 of the Act and under those rules no valid election could be held.

(17) It was next argued that assuming that the rules relied upon were valid on a proper construction of Rule Xiii all 10 teachers must be elected to the Academic Council at one and the same time and not in Installments. To my mind there is not much force in this contention The Academic Council postulated by Statute 7 is by and large a permanent body with diverse representation on it. The tenure of office of the persons, other than ex-officio members, is two years. Vacancies may occur in the Academic Council both with regard to ex-officio members and others. The vacancy may be, what may be called, a regular vacancy or a casual vacancy. There is no provision in the Act or the Statutes for filling of what may be called regular vacancies in the authorities and bodies of the University. Section 43, however, does provide for filling of casual vacancies. It lays down that all casual vacancies among the members (other than ex-officio members) of any authority or other body of the University shall be filled, as soon as conveniently may be, by the person or body who appointed, elected or co-opted the member whose place has become vacant and the person appointed, elected or co-opted to a casual vacancy shall be a member of such authority or body for the residue of the terms for which the person whose place he fills would have been a member. In other words, as far as the Academic Council is concerned a person elected in a casual vacancy would remain a member for the remaining period out of two years for which the original member was elected. The question that arises is as to what is a casual vacancy. As observed by Fry, J. in Munster v. Cammell Co., (1882) 21 Ch. D. 183

'ANYcasual vacancy in my judgment is any vacancy in the office of directors arising otherwise than by the retirement in rotation pointed out by the previous articles. It includes, thereforee, the happening of any of the contingencies referred to in the 76th article, and it has been taken, and as I conceive correctly taken, by both sides to include a vacancy occurring by the voluntary retirement of a director.'

Thus, a regular vacancy would be one which comes about by afflux of time. If a vacancy occurs in membership by resignation, death, incapacity etc. it would be a casual vacancy. In the present case the elections notified on August 17, 1972 were for regular vacancies. All these vacancies had to be filled. Whether all the vacancies can be filled or not at the same time would depend upon various circumstances. Rule Xiii relied upon by the petitioners to urge that all the vacancies had to be filled at the same time and not piecemeal cannot be construed to mean that if there are not sufficient number of candidates seeking election to the 10 seats no elections can be held at all till either 10 or more candidates are validly nominated and seek election. Such an interpretation would defeat the very electoral process in a democratic set up. No body can be forced to seek election. It follows, thereforee, that if persons seeking election are less in number than the seats vacant, at least those persons who are validly nominated should not be debarred from seeking election. The remaining vacancies cap be filled up under other provisions of law. It was urged that Rule Xiii postulates that if the number of candidates nominated is less than the number of vacancies to be filled, the Vice-Chancellor will appoint a further period within which further nominations would be received and may keep on appointing additional further periods until the number of candidates nominated is not less than the number of vacancies to be filled. This, it is urged, had to be done by the Vice-Chancellor prior to the declaration of election if candidates seeking election were less than the number of vacancies and that no person could be declared elected till the candidates seeking election were equal in number to the seats vacant or elections had been held if the number of candidates seeking election was more than the seats to be filled. I cannot agree with this contention. Rule Xiii is not very happily worded but (in my view) the only workable, interpretation that can be placed on this rule is that if the number of persons seeking election is less than the seats to be filled those persons subject to their being validly nominated would be declared elected and further dates would be fixed for election to the remaining vacant seats.

(18) The third contention that notification declaring respondent No. 4 elected on September 12, 1972 violates Statute 7(l)(viii) and Rule Xiii cannot be accepted for the same reason, namely, that it is not necessary that all 10 tea,chers of University be elected at the same time.

(19) The fourth contention that the election of respondents 5 to 12 was invalid because the election was piecemeal is also to be rejected turn reasons already given by me. The last contention to be noticed is whether in the circumstances of the case a writ should issue declaring elections of respondents 4 to 12 as invalid as well as striking down the election rules relied upon by the respondents. Mr. Chopra, learned counsel for respondents 1 to 3 urged that the election rules may be regarded in the nature of administrative instructions till Statutes are actually framed as work must go on and the authorities and bodies of University must function to fulfill the purposes of the Act. It is also contended that court should not interfere in University affairs, particularly, when the rules have been in vogue for considerable time.

(20) In Prem Narain Tandon v. State of Uttar Pradesh and another : AIR1960All205 , a bench of the Allahabad High Court observed:

'. .Universities are autonomous bodies and the courts should be reluctant, as far as possible, to interfere with the internal administration of the University. There should be no occasion for any interference unless there is a palpable violation of law, which has occasioned injustice in a broad and general sense. In the present case we do not think that the rights of the petitioners were such which needed any interference by this Court, when their terms were determined.'

(21) H. R. Khanna, C. J. in a bench decision of this Court in Dr. B. N. Ahuja v. Shri G. S. Pathak & others, Civil Writ No. 97 of 1970(4) noticed with approval the a,bove observations of the Allahabad High Court and declined to interfere with the election of Shri G. S. Pathak as Chancellor. The learned Chief Justice, however, observed : 'The past practice referred to by the Registrar, in our opinion, was far from desirable. The relevant provisions of the Delhi University Act and the Statutes have made the office of the Chancellor to be elective . . . As election has been envisaged since 1952 for the office of the Chancellor it is, in our opinion, essential that those like the Registrar, who are concerned with the holding of that election should remain neutral and should appear to be neutral . ... Despite all these facts, we are of the opinion that there should have been strict adherence to and no departure from the norms of elections . . . We have already held above that the rules, relied upon by the petitioner, are not applicable to the election in question. No other rules have been prescribed and no statutory provisions have been enacted for the form and other details of the nomination paper as also those pertaining to the other formalities for the election. In the circumstances it cannot be said that there has been any violation of any statutory provisions or rules on the subject.' After this the bench noticed the decision of the Allahabad High Court in the case of Prem Narain Tandon (3) with approval and declined to interfere with the election of Shri G. S. Pathak as Chancellor. In my view the rule laid down by the judgment is not attracted to the facts of this case. Here statutory provision has been violated inasmuch as elections were held under rules not warranted by the Act. Rules for election could only be framed by Statutes. No such rules have been framed and ah held by a bench of this court in S. S. Gael's (1) case mentioned earlier, the rules relied upon cannot supplant the statutory requirements. Merely because in the past elections have been held under invalid rules would not justify a decision that the rules are such under which elections were held could be validly held.

(22) Mr. Chopra places reliance also on Principal Patna College, Patna and others v. Kalyan Srinivas Roman, : [1966]1SCR974 . The ratio of this judgment is not attracted, for what was held was that : 'Where the question involved is one of interpreting a Regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the Regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by such authorities on the relevant Regulation appears to the High Court less reasonable than the alternative construction, which it is pleased to accept.' No such situation arises here. Similarly reliance on Dev Prakash Balmakand v. Babu Ram Rewti Mal and others is misplaced. No doubt, G. D. Khosla, J. observed that 'the function of a Court of law is to decide actual cases and to right actual wrongs and not to exercise the mind by indulging in unrewarding academic casuistry or in pursuing the useless aim of jousting with windmills,' all the same one cannot forget what was said by a bench of this Court in the above noticed case of S. S. Goel: (1) 'It is true that bodies like Universities which are sources of education to the nation, which education is vital both to our natioal security and domestic well being, should be allowed laxity in the matters relating to their domestic affairs, but such play in the joints cannot be carried so far as to permit them to override the law ...' I am in respectful agreement with the observations in the bench decision of this Court and feel that educational institutions like the Universities should not be allowed to act contrary to the law which brings them into existence. In this view of the matter the petitioners being teachers of the University who are vitally interested in the functioning of a properly constituted Aca- demic Council cannot be regarded as persons having no stake or no interest or as persons whose rights are not affected by Illegal elections to the Academic Council. The Academic Council is charged with certain statutory duties and most important and vital function of the University inasmuch as this authority controls and regulates and is responsible for the maintenance of standards of instructions, education and examination etc. which, after all, is the primary function of the Universiy. Such an authority must be properly constituted in accordance with law and if it is being constituted contrary to law its constitution must be struck down at the instance of those who would be vitally interested to maintain and uphold the integrity of the academic side of the University.

(23) Although the provisions of Section 41 of the Act were not pressed at the Bar yet I must observe that Section 41 would not be attracted in this case as the virus of the rules under which the elections were held has been challenged. Apart from this the representation of the first petitioner to the Chancellor had evoked no response.

(24) The judgment in the Writ Petition filed by the petitioners was listed for pronouncement on September 16) 1974. Before I could pronounce the judgment the learned counsel for respondents 1 to 3 mentioned that Statute 7 has been in the meanwhile amended and time may be given to bring this aspect to the notice the Court. I, accordingly, withheld the pronouncement of the judgment and directed respondents 1 to 3 to move an appropriate application with liberty to the petitioners in the main case to file a reply. C. M. 1673 of 1974 has, in consequence, been moved by respondents 1 to 3.

(25) According to this application the writ petition was heard on Septemper 5, 1974 and judgment reserved. In the meanwhile certain developments are stated to have taken placed. These are as follows:-

(I)The Executive Council of the University, in exercise of its powers under Section 29 of the Act is stated to have amended Statute 7 of the Statutes of the University, relating to the composition of the Academic Council, at its meeting held on May 23, 1974. The amended Statute 7 has been filed as Annexure 'A' to this application. Statute 7 as amended was sent to the Visitor for his approval who is stated to have accorded his approval. This fact is gleaned from the letter of the Registrar of the University addressed to 10 members of the Academic Council representing 'teachers of the University' issued on September 10, 1974. Copy of this letter has been filed as Annexure 'B' to the application. According to it the amended Statute 7 has come into force from August 5, 1974, the the date on which the amended Statute 7 received the assent of the Visitor. It is further stated in the said letter of September 10, 1974 that on the basis of legal opinion received by the University authorities the said '10 teachers of the University' ceased to be members of the Acdemic Council with effect from August 5, 1974.

(II)The prayer in the application now moved is that in view of the changed situation the Court after taking notice of the further developments may pass such orders as may be appropriate in the circumstances of the case. The contention is that the prayer in the writ petition to declare the election of '10 teachers of the University' as members of the Academic Council as void would be an infructuous declaration.

(26) The petitioners have filed no formal reply to the application but have contested its maintainability.

(27) It is true that any declaration that respondents 4 to 12 have ceased to be members of the Academic Council given at this stage would be of no avail. According to the respondents the original tenure of the 10 teachers was to expire on September 18, 1974. That period has already expired. .Whether the tenure expired on August 5, 1974 is a question on which I would not like to comment at this stage because that may involve deciding on the validity of the amended Statute 7 or the action taken by Respondents I to 3 to give this ruling based on legal advice. Be it as it may, I must, however, comment upon the practice of moving applications after the case is over and only judgment is reserved.

(28) Order Vii rule 7 of the Code of Civil Procedure provides that the relief claimed must be specifically .stated but it shall not be necessary to ask for general or other relief which can always be given by the Court in the circumstances of the case. In other words, the Court is empowered to mould the relief according to the circusmtances of the case. This does not mean that a cause can be decided on circumstances which are not originally pleaded. It only means that the Court may take note of subsequent events like granting of a relief which may subsequent to the filing of the action may become unlawful. Order Xx rule 1 of the Code deals with contingencies where judgments are reserved. It is settled law that the decision in a case must be on the basis of pleadings of the parties and evidence produced in support of the contentions made in the pleadings. A Court has no power to pronounce judgment or pass a decree on matters which were not in suit between the parties. Indeed a cause has to be decided on the state of affairs prevailing on the date when an action is commenced or when the cause of action is supposed to have arisen. A Court can take note of subsequent events during the pendency of litigation, if there are compelling circumstances to do so, but not of circumstances which come about between the closing of the case and judgment being pronounced, unless there is some specific law to that effect.

(29) In Arjun Singh v. Mohindra Kumar & Ors. 1964 (5) Supr Cou Rep 946 it was observed, while dealing with the pro- visions of Order Ix rule 7 and Order Ix rule 13 of the Code, that :

'IF,thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for.'

(30) It was held that Section 151 Civil Procedure Code could not be attracted in the above case as that is a provision which only saves inherent powers of the Court. Where a specific provision is made section 151 Civil Procedure Code is not attracted. In my view once the case is closed there is no inherent power in Court to re-open the case unless there are compelling circumstances or a specific provision of law authorises the reopening of a case.

(31) In A. B. Abdulkhadir and others v. The State of Kerala and another. 1962 Suppl (2) Supr Court Rep 741 the impugned rule was abbrogated during the pendency of the hearing of the writ petition. Relying on this fact it was urged on behalf of the State that the Court should not grant a mere declaration as to the invalidity of the rules which were no longer in existence. The argument did not find favor with the Supreme Court and a declaration was given to the Petitioners that the rules were invalid because such declaration would give them relief so far as the period after their petition was concerned while the rules remained in force. In other words the decision was given on the basis of the circumstances existing at the time when the petition was filed.

(32) As against the above rule enunciated by the Supreme Court, learned counsel for the respondents 1 to 3 relied upon K. N. Guraswamy v. The State of Mysore and others, : [1955]1SCR305 . In this case a writ of mandamus was refused because pending the writ petitions and the appeal before the Supreme Court, the Excise Commissioner had cancelled the impugned sale of a liquor contract conferred by the Deputy Commissioner on account of irregularities brought to his notice although the Excise Commissioner was able to deal with the matter only after considerable lapse of time. No such contingency arises in the present case as the tenure of respondents 5 to 12 has been cut short not because of any irregularity or illegality in their election but on account of amendment of Statute 7 the legal effect of which is stated to be that the term of the existing members comes to an end on the enforcement .of the amended Statute. I, thereforee, sec no force in the present application and dismiss the same.

(33) Reverting to the petition itself I accept the prayer for the issue of a writ setting aside the elections held between October and November, 1972 to the Academic Council of the University of Delhi. I, however, decline to issue a declaration that the Academic Council as a whole was not lawfully constituted or that all its acts and proceedings transacted since September 18, 1972 are illegal and void.

(34) Perhaps, it may be desirable to state as to why I am declining to issue a declaration to the extent mentioned above. It is not shown that if any of the constituents of the Academic Council are not present or are not nominated or elected the Acadmic Council as such would cease to exist. In the very nature of things persons of all the categories mentioned in Statute 7 may not be there at the same time. There may be vacancies which have to be filled. If, thereforee, there are any vacancies after because of retirement or otherwise the Academic Council does not cease to exist and actions of the Academic Council without all its constituent members cannot be regarded as illegal. Indeed Section 44 of the Act provides for such contingencies. The effect of the elections of respondents 4 to 12 being declared void would be that they were never members of the Academic Council and the seats reserved for 'teachers of the University' would be deemed not to have been filled. Such vacancies would not invalidate any act or proceedings of the Academic Council.

(35) I, accordingly, issue a writ quashing the election rules and the Sections of respondents 4 to 12 to the Academic Council and further issue a writ to respondents 1 to 13 to hold elections for filling the seats reserved for 'teachers of the University' in accordance with law. It will be for the authorities themeselves to consider before holding such elections whether the Statutes have to be framed or any other steps taken in consonance with the provisions of the Act and the Statutes. In the circumstances I, however, make no order as to costs.


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