Kan Singh, J.
1. This is a plaintiff's appeal directed against the judgment and decree to the learned Additional District Judge No. 1, Jaipur City dismissing the plaintiff's suit, for declaring him as a validity appointed Professor and Director of the Rajasthan College of Commerce and for other consequential reliefs, on a preliminary point which was subject matter of issue No. 27.
2. The plaintiff averred that he was appointed as Head of the Department in Maharaja's College, Jaipur on 1st August, 1933 and he became the Principal of Rajasthan College of Commerce in the year 1956. In this capacity he came to be elected as a member of the Syndicate of the Rajasthan University, Defendant No. 1 for a period of three years from 1957 to I960. On 4th January, 1960 defendant No. 3 Dr. M.S. Mehta assumed charge as the Vice Chancellor of the University of Rajasthan. In May 1961 the University of Rajasthan decided to accept the Government, proposal for taking over the College of Commerce along with two other Colleges. As a sequel to the transfer of the three colleges the existing administration and the attached staff were to be transferred to the University on certain terms. According to the plaintiff certain proposals regarding the proposed strength of the attached staff came before a meeting of the Syndicate. Eventually, a high-powered committee was appointed for making certain selections. The plaintiff claimed that on 8th July, 1962 he was selected by the high powered committee to being appointed as a Director (Principal) of the Commerce College. Defendant No. 3 however, did not communicate this decision of the high-powered committee to the Syndicate but issued a duty chart on 18th July, 1962 appointing the plaintiff as the Director of the Commerce College temporarily. The plaintiff further averred that on 25th September, 1962 the Syndicate confirmed him on the post of the Director cum-Principal. His grievance was that though he was confirmed at. this meeting on the very next day, that is, on 26th September 1962, the defendant No. 3 got a meeting of the Syndicate convened and at this subsequent meeting the plaintiff's confirmation on the post of the Director-cum-Principal was re-opened and it was left to be decided on a later date. There are several other averments in the plaint but it is not necessary to recapitulate them here.
3. The defendant No. 2 came to be appointed as a Professor of Commerce and Director of the University College of Commerce The plaintiff is impugning the appointment of defendant No. 2 as Professor of Commerce & as Director on a number of grounds. He has claimed for himself that it was he who had been appointed as Professor & Director of the College of Commerce by the Syndicate on 25th September, 1962,
4. The plaintiff filed the suit in the court of the Senior Civil Judge, Jaipur City on 8th July 1966. The three defendants, namely, the University of Rajasthan, Shri Om Prakash Mathur, Director of College of Commerce, Jaipur and Dr. Mohan Singh Mehta, Ex-Vice Chancellor, University of Rajasthan contested the suit on a number of grounds. The learned Additional District Judge No. 1 who tried the suit subsequent to re-designation of the court of the Senior Civil Judge as Additional District Judge framed 27 issues in all. The last issue, i, e. issue No. 27 was as follows:
Whether the plaintiff has no right to challenge the validity of appointment of the defendant No. 2 by virtue of the University of Rajasthan (Amending & Validating) Act 10 of 1964 & the plaintiff's suit is not maintainable
The learned Additional District Judge took this up as a preliminary issue. The learned Judge considered the effect of Section 5 of the University of Rajasthan (Amending and Validating) Act, 1964 and held that 'it did not lie in the mouth of the plaintiff to find fault with the appointment of the defendant No. 2 on the score that the Syndicate had not created such a post and had not got the recommendation of the Academic Council as required under the Statute of the University because under Clause (iii) of the Act, 1964 the action taken by the Syndicate has to be deemed to have been validly taken, notwithstanding anything contained in the principal Act' The learned Judge repelled the argument of the learned Counsel for the plaintiff that, the action of the Syndicate was against the principal Act observed that Section 5(iii) of the validating Act made it abundantly clear that notwithstanding anything contained in she- principal Act any action taken by the re-constituted authority shall be deemed to have been validly taken. The learned Judge also observed. 'The (sic) of the facts is that I cannot sit in judgment over the action of the Syndicate in appointing the defendant No. 2 to the post of Director and Professor of the Commerce College in preference to the plaintiff because that act has been deemed to have been validly taken under Clause (iii) of Section 5 of the University of the Rajasthan Act.' The learned Judge was not impressed by the plaintiff's submission that the court may go into the question of the alleged (sic) and grave irregularities and illegalities allegedly committed by the defendant No. 3 in getting the defendant No. 2 appointed as professor and Director of the Commerce College because, the learned Judge thought, such inquiry was hatred under cl. (iii) of Section 5 of the Act. In the result, the learned judge decided issue No. 27 in favour of Deft No. 2 Having recorded an order disposing of issue No. 27 the learned Judge then thought of writing a separate judgment. He narrated the facts, reproduced all the issues and then finally heard argument on issue No. 27 as on that issue the decision of the suit hinged He observed that he had passed a separate order deciding the issue against the plaintiff. In consequence he dismissed the suit.
5. In assailing the judgment and decree of the learned Additional District. Judge the learned Counsel for the plaintiff appellant has contended that the learned judge has taken a wholly erroneous view of the provisions of the Validating Act. The Validating Act was passed to remove the defects, if any in the constitution of the various bodies of the University and also for validating certain actions taken by the said bodies in the meantime. The learned Counsel maintained that the appointments made by the University could undoubtedly be challenged on grounds other than those mentioned in the Validating Act enacted for validating the constitution of several organs of the University and other authorities.
6. The learned Counsel for the respondent contested the stand taken by the learned Counsel for the appellant. They also submitted that the suit filed by the plaintiff was not otherwise maintainable. In the first place it was submitted that on 29th July, 1971, that is, after the filing of the present appeal on 10th July, 1971, the University of Rajasthan had issued a notification No. 18902 EG dated 29th July, 1971 organising the teaching in the faculty of Commerce on faculty-wise system. In the new system the deft. No. 2 was no Longer on the post of the Principal or Director of University College of Commerce. The same abolished with the introduction of the faculty-wise system. It was, therefore, submitted that the plaintiff cannot claim any relief. Apart from this it was argued that the issues Nos. 11, 14, 16, 17 and 22 are all legal issues and should be decided by this Court. Reliance was sought to be placed on a Division Bench decision of this Court in D.B. Writ No. 341 of 1965 decided on 7th November, 1967-B.D. Bhargava v. University of Rajasthan to which I was a party.
7. I will first take up the question whether issue No. 27 was rightly decided by the court below. I may read the relevant provisions of the University of Rajasthan (Amending & Validating) Act, 1964. This Act received the assent of the Governor on the First day of April, 1964 and came into force from 2nd of April, 1964 when it was first published in the Rajasthan Gazette. Its preamble is:
An Act further to amend the University of Rajasthan Act, 1946, in the manner hereinafter appearing, and to provide for the validation of the re-constituted Senate and Syndicate, continuance in office of the members thereof, and certain other matters connected therewith.
The object of this Validating Act thus appears to be one of validating the reconstitution of the Senate and the Syndicate, to provide for continuance in office of the members thereof and also to deal with certain other matters connected with either of the two bodies already stated. Section 2 is about certain definitions. They are not relevant. Section 4 made certain amendments in the principal Act namely the University of Rajasthan Act, 1946 Then comes Section 5 I may read in full:
5. Validation of the re-constituted authorities and other matters - Notwithstanding anything contained in the principal Act or in any judgment, decree or order of any court or any defect in the Removal of Difficulties Order.-
(i) the re-constituted authorities shall be, and shall be deemed always to have been, validly constituted and shall function & shall be deemed always to have functioned as validly constituted bodies till another Senate and Syndicate are constituted in accordance with the provisions of the principal Act.
(ii) all the members of the re-constituted authorities including the Vice-Chancellor and the Deans, shall be deemed always to have been validly appointed and continued, as members of a validly re-constituted Senate or Syndicate, as the case may be till another Senate & Syndicate are constituted in accordance with the provisions of the principal Act.
(iii) any action taken, resolution passed, nomination, appointment and recommendation made, by the re-constituted authorities shall be deemed to have been validly taken, passed or made; and
(iv) the said University shall be, and shall be deemed always to have been, competent to convene the meetings & enforce the decisions of the re-constituted authorities.
The last Section 6 is about the repeal of the Rajasthan Ordinance NO. 3 of 1964 which preceded this Validating Act- The Ordinance was almost in the same terms as the Amending and Validating Act. Sub-clause (i) of Section 5 lays down that the reconstituted authorities shall be, and shall be deemed always to have been, validly constituted and shall function and shall be deemed always to have functioned as validly constituted bodies till another Senate and Syndicate were constituted Sub-clause (ii) lays down about the members of the re-constituted authorities including the Vice-Chancellor and the Deans Clause (iii) is about validation of the auction already taken. The learned Additional District Judge has, to my mind, read the provisions of Section 5 and in particular Clause (iii) thereof to be in the nature of a blanket provision bestowing complete immunity to all orders from challenge in courts on any ground whatsoever. I am afraid he has read too much in this section. The section was designated primarily to make provision for the validation of the re-constituted authorities of the University including all the members of the re-constituted authorities such as the Vice-Chancellor and the Deans. Further, any action taken, resolution passed, nomination, appointment & recommendation made.by the re-constituted authorities, shall be deemed to have been validly taken, passed or made. Here the emphasis is on action taken by the re-constituted authorities. In other words, it is the validity of the constitution of the reconstituted authorities that has been placed beyond challenge and the action taken, resolution passed, nomination, appointment and recommendation made would not be challenged on the ground that the authorities were not validly re-constituted. But this provision does not provide for imparting immunity of the various actions taken, resolutions passed, nomination appointments and (sic) made on other grounds If such acts were prima facie invalid on the ground of nor-fulfillment of a necessary condition for performance of such acts or if there is non-compliance with any rule of procedure or with any other provision of law, then certainly such a challenge could be made and a court of law would not be precluded from going into the question merely on account of the provisions of Section 5 of Validating Act. The learned judge was, therefore, not right in reaching the conclusion that the suit was not maintainable The plaintiff was no doubt not entitled to challenge the validity of the appointment of the defendant No. 2 if the challenge were based on the ground that the competent authority was not properly constituted. But if the challenge is on other grounds as it undoubtedly was and such other grounds were the subject-matter of a number of the issues, then, to my mind, the provisions of the University of Rajasthan (Amending and Validating) Act, No. 10 of 1964 would not stand in the plaintiff's way. The learned Additional District Judge was, therefore, not right in dismissing the plaintiff's suit on the ground which was the subject- matter of issue No. 27.
8. The learned Counsel for the respondent wanted me to go into issues Nos. 11, 14, 17 and 22 as also to consider his so-called preliminary objections founded on the University notification dated 29 July, 1971. But I am afraid this would not be a right course to adopt. The trial court has not applied its mind to any of the aforesaid issues and-did not record any conclusion thereon cone way or the other. The effect of the notification dated 29 July, 1971 can-not also be examined at this stage. The so called preliminary objection is not one regarding the maintainability of the appeal in the form it was presented and this notification too relates to the maintainability of the suit on a ground other than what was the subject-matter of issue No. 27. It will be for the defendant respondent to raise this ground in the trial court by asking for permission to amend their written statements, if necessary. Be that as it may, I do not propose to go into other questions in this appeal.
9. In the result, I allow this appeal, set aside the judgment and decree of the learned Additional District Judge dated 25th March, 1971 and remand the case to him for deciding the remaining issues. The learned Counsel for the appellant prayed for refund of the court fee paid on the memo of appeal. He had paid Rs. 570/-, Rs. 400/- may be refunded to the plaintiff appellant. The learned Additional District Judge shall try to dispose of the case expeditiously as it has already become quite old. The parties namely, the University of Rajasthan and Dr. Om Prakash Mathur are directed to appear before the learned Additional District Judge on 24th April, 1972. The Additional District judge will, however, intimate the date of hearing to Dr. Mohan Singh Mehta who has not appeared in this Court.