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T.C. Kanwar Vs. the Himachal Pradesh University, Simla and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 167 of 1980
Judge
Reported inAIR1981HP39
ActsHimachal Pradesh University Act, 1970 - Sections 22, 39 and 45; ;Constitution of India - Article 226
AppellantT.C. Kanwar
RespondentThe Himachal Pradesh University, Simla and anr.
Appellant Advocate Kamlesh Sharma, Adv.
Respondent Advocate P.N. Nag, Adv.
DispositionPetition allowed
Cases ReferredBar Council of Delhi v. Surjeet Singh
Excerpt:
.....pradesh university act, 1970 - petitioner was a lecturer - filed his nomination papers for academic council as well as court - notification for both rejected in view of amendments made in note (2) below statute 12 (1) (xii) - petitioner contended that amendments was ultra vires and void ab initio - after amendment person who had already been member of either of two is not eligible for membership of any of these two for following term - adding disqualification affects qualification of member - every change in qualification of member affects constitution of academic council - section 39 (2) of act lay down that an opportunity must be given to affected authority to express its opinion - held, impugned proviso ultra vires as executive council failed to give opportunity to academic..........but the question before us is whether the amendment is bad since no opportunity was given to the academiccouncil to express its opinion, we may at. this stage record that it is by now well settled that when the law provides a particular mode for doing a thing, it has to be done in that mode alone and other modes are prohibited. before bringing in any amendment in the first statutes which affects, inter alia, the constitution of the academic council, it was the duty of the executive council to give an opportunity to the academic council to express its opinion on the proposal. the executive council has failed to do so and we must hold that the impugned proviso is ultra vires. 16. it may also be noticed that section 39 shows that the executive council is not all powerful. the academic.....
Judgment:

V.D. Misra, C.J.

1. Shri T. C. Kan-war, petitioner, is a Lecturer in English, Government College, Una. He had entered service sometime in 1968. He was a member of the Academic Council of the University of Himachal Pradesh (referred to as the University) for a term of two years from 8-1-1977 to 7-11-1979. He had contested the election to the membership of Academic Council as a representative of the teachers of the affiliated Colleges including the Colleges mentioned by the University. He is teaching in the Arts Faculty.

2. The University announced a schedule for election of teachers of Colleges to the Academic Council and the CourtNomination papers were required to be filed by 10th September, 1980. The scrutiny of the nomination papers was scheduled for 11th September, 1980 and the withdrawal of nomination papers was allowed up to 3 P. M. of 16th September, 1980. The election, if necessary, was to be held on 24th September, 1980.

3. The petitioner filed his nomination papers for Academic Council as well as for the Court. After scrutiny, his nomination papers were found in order (An-nexure P-1). After the time for withdrawal was over, the petitioner was the only candidate left in the field for Academic Council and the Court in respect of teachers of Arts Faculty with more than 10 years service. His candidature, however, for Academic Council was cancelled because of note (2) below Statute 12 (1) (xii) to the First Statutes. We will presently notice it in detail. However, he was declared elected for the Court (An-nexure P-2). The petitioner came to Simla on 21st September, 1980 and enquired why his name has been cancelled for the election to the Academic Council. It may be recalled at this stage that if his name was hot cancelled he was to have been declared elected since he was the only candidate. The petitioner was informed that his result even in respect of membership of the Court has also been cancelled. However, nothing was conveyed to the petitioner in writing in respect of the said cancellation. The petitioner now challenges the cancellation of his candidature for Academic Council and the result of the (election to) Court by this writ petition.

4. The case of the University is that the petitioner could not contest elections to the Court as well as to the Academic Council in view of the amendment made in note (2) below Statute 12 (1) (xii). The petitioner contends that the said amendment is ultra vires and void ab initio.

5. We may now notice the relevant provisions of law governing the University, and the powers of amendment of the Statutes. The Himachal Pradesh University Act, 1970 (referred to as the Act) and First Statutes of Himachal Pradesh University, 1970 came into force in July, 1970. The Act lays down, amongst others, the authorities of the University (S. 18), the constitution and powers of the Academic Council (Section 22), and the procedure lor the amendment of the Statutes (Section 39). The Academic Council is one of the authorities of the University.

6. Section 22 reads:

'22. Academic Council:-- (1) The Academic Council shall be the academic body of the University.

(2) The constitution of the Academic Council and the term of office of its members shall be as laid down in the Statutes.

(3) The Academic Council shall, subject to the provisions of this Act, the Statutes and the Ordinances, have the control and general regulation, and be responsible for the maintenance of standards and methods of instruction, evaluation, education, examination and research in the University, prescribe courses of study and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes.

(4) The Academic Council shall have the right to advise the Executive Council on all academic matters.'

7. Section 39 is in the following terms.

'39. Statutes how to be made-- (1) The first Statutes shall be made by the Government and a copy thereof shall be laid before the Himachal Pradesh Legislative Assembly.

(2) The Executive Council may, from time to time, make new or additional Statutes or may amend or repeal the Statutes in the manner hereinafter provided in this section:

Provided that the Executive Council shall not make any Statute or any amendment of a Statute affecting the status, powers or constitution of any existing authority of the University, until such authority has been given an opportunity of expressing an opinion on the proposal, and any opinion so expressed shall be in writing and shall be considered by the Executive Council. (3) Every Statute or addition to the Statute or any amendment or repeal of the Statutes shall require the approval of the Chancellor, who may assent thereto or withhold assent or remit to the EX-ecutive Council for re-consideration.

(4) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Chancellor.'

8. Sub-section (2) of Section 39 unambiguously lays down that though the Executive Council may amend the Statutes, it shall not make any Statutes or any amendment of a Statute affecting, amongst others, the constitution of anyexisting authority of the University without taking into consideration the opinionexpressed by such authority.

9. Now admittedly the Academic Council was not given any opportunity of expressing an opinion in respect of the amendment which has been brought in the Statute. But the case of the University is that the amendment in question does not affect the constitution.

10. What is the constitution of the Academic Council? Sub-section (2) of Section 22 provides for its constitution to be laid down in the Statutes. Statute No. 12 relates to the Academic Council. There is no other relevant Statute. Clause (1) of Statute No. 12 opens with the words: 'The Academic Council shall consist of the following:--'. Then the list of various office holders is given. As we are concerned only with Sub-clause (xii) we will now read its relevant part:

'(xii) Fifteen teachers of affiliated Colleges including Colleges maintained by the University -- seven by election in accordance with the system of proportional representation by means of single transferable vote and eight by rotation according to seniority as under:--

A. By Election.

(1) Four from among those teaching subjects assigned to the Arts Faculty:

Provided that two shall be from among those with more than ten years' service and two with less than ten years' service. Note (2). The same teacher in any category referred to in Sub-clause (xii) will not be a member of the Court and the Academic Council at the same time; and the senior teacher in any of the said categories shall be a member of the Academic Council, while the teacher next in seniority to him shall be a member of the Court.'

11. Now Note (2), as reproduced above,was in the First Statutes. The Executive Council by virtue of powers vested in it under Section 39 of the Act has now added the following two provisos:

'Provided that any one who has served as a member of either of these two authorities for a term will not be eligible for membership of any of the two authorities in the following term: Provided however that one who has served in the capacity under 'A' on either of these authorities may become member under 'B' or vice versa of the other authority.'

12. The effect of the first proviso is that a person who has already been a member of either of the two (Court or Academic Council) is not eligible for membership of any of these two for the following term. In other words a new disqualification has been created. Before the addition of the provisos a person had a right to contest for the membership of the Court as well as the Academic Council. In case he got elected for both then he had to give up membership of one of the bodies. He could again fight election for the successive terms for either of them. But now, once he has been a member of one body he cannot be a member of any of the two bodies in the succeeding term. Of course, he can again be a member thereafter. It is now going to prevent a class of persons from seeking election for the following term. This class consists of those who have already been elected as members. The petitioner admittedly falls in this class of persons and, if this proviso is valid, cannot become a member of either body for the present term.

13. Mr. Nag, learned counsel for the University, states that since the proviso in question does not affect the constitution of the Academic Council, therefore, there was no necessity for the Executive Council to ask for the opinion of the Academic Council as required under Section 39 of the Act. In the alternative, he contends that if the amendment is for the betterment or benefit of the Academic Council, the latter need not be given any opportunity to express its opinion. According to the learned counsel, the restriction is reasonable in order to avoid monopoly of certain persons to continue to be the members of the two bodies. In any case, he says over-specialisation is bad. He also contends that it is the Academic Council which can challenge this amendment since only Academic Council could be said to be an aggrieved person having not been given an opportunity to express its opinion.

14. The first question to be decided iswhether the impugned proviso affects the constitution of the Academic Council. We have already reproduced Sub-clause (2) of Section 22, and the relevant part of Statute 12 relating to the Academic Council. Mr. Nag contends that since the composition and strength of members under sub-clause (xii) of Clause (1) of Statute 12 remains the same, its constitution is not affected. We are afraid we cannot agree. It cannot be denied that before the addition of the provisos there was no restriction on persons falling in various categories referred to in Sub-clause (xii) for seeking the membership of the Academic Council. It is true that the strength of the teachers teaching subjects assigned to Arts Faculty remains undisturbed. It is also true that the strength of. teachers falling under the category of those who have been teaching for more than 10 years and those with less than 10 years' service also remains unaffected. But what has happened is that the unrestricted right given by the First Statutes to the persons falling in those categories for seeking election to the Academic Council has been taken away. Though the im-pugned proviso has not affected the num-ber, it has affected the quality. Whereas a teacher with more than 10 years' service to his credit could be a member of the Academic Council for the successive terms, he will not be allowed to be a member in the following term in case he is already a member. The difference is subtle but very important. It is not correct to say that as long as composition and strength remains the same, a change in the qualification of a member does not affect the constitution. In our opinion every change in the qualification of a member seriously affects the constitution of the Academic Council. Adding a disqualification affects the qualification of a member. We have, therefore, no hesitation in rejecting the contention of Mr. Nag that the impugned proviso does not affect the constitution of the Academic Council.

15. We are not concerned with the policy or the objects with which the amendment was brought. We are not called upon to decide whether a monopoly is good or bad, or whether over-specialisation should be treated as a disqualification. Similarly, we are not called upon to decide whether the restriction rnade by the said proviso is reasonable or whether the amendment is for the betterment or benefit of the Academic Council. All these matters are to be decided by the Academic Council itself. That is the reason why the proviso to Sub-section (2) of Section 39 of the Act lays down that an opportunity must be given to the affected authority to express its opinion on the proposed amendment. It may be that the Academic Council might agree and fall in line with the thinking of the Executive Council. But the question before us is whether the amendment is bad since no opportunity was given to the AcademicCouncil to express its opinion, We may at. this stage record that it is by now well settled that when the law provides a particular mode for doing a thing, it has to be done in that mode alone and other modes are prohibited. Before bringing in any amendment in the First Statutes which affects, inter alia, the constitution of the Academic Council, it was the duty of the Executive Council to give an opportunity to the Academic Council to express its opinion on the proposal. The Executive Council has failed to do so and we must hold that the impugned proviso is ultra vires.

16. It may also be noticed that Section 39 shows that the Executive Council is not all powerful. The Academic Council is an authority of the University which has been given, by the First Statutes, a certain status, powers and a constitution. Any change in these without the consent of the Academic Council will make the Executive Council supreme. It is for that reason that the Academic Council must be given an opportunity to express its opinion which has to be in writing. This opinion has to be considered by the Executive Council. It is thereafter that the amendment has to be sent for the approval of the Chancellor who may, after going through the proposed amendment, the opinion expressed by the Academic Council, and the consideration of the Academic Council's opinion by the Executive Council, either assent or withhold his assent to the proposed amendment or remit it to the Executive Council, for reconsideration. The circumstances show that the Academic Council is not to be taken for granted. It has a vital role to play. It has the right to advise the Executive Council on all academic matters.

16A. Contention of Mr. Nag that only the Academic Council is the aggrieved party and it alone can challenge the amendment is without substance. It is true that the Academic Council is an authority of the University but admittedly it is not a legal entity. It is very doubtful if it can move the court as Academic Council. Even if it could move the court, it will not be a bar to the petitioner coming to the court. The petitioner has been given a right by the Statute. This right is being taken away without following due procedure of law. He has a right to approach the court for relief.

17. It is also contended that Section 45 provides an adequate alternativeremedy and so the petitioner should be asked to seek his remedy there. Section 45 reads thus:

'45. Disputes:-- If any question arisea whether any person has heen duly appointed or elected as, or is entitled to be, a member of any authority or other body of the University, the matter shall be referred to the Chancellor whose decision thereon shall be final.'

18. It is true that disputes can be settled by the Chancellor but how can the Chancellor declare an amendment of the Statute, to which he was a party as he had given his assent, void. Looking from another angle, the striking down of the impugned proviso, which since has been duly notified as a part of the Statute, would itself amount to amending the Statutes. The Chancellor has not been empowered to amend any statute. Section 45 is, therefore, no remedy, much less an adequate alternative remedy.

19. Another contention put forward by Mr. Nag is that the petitioner can file an election petition as directed in Ordinances 30.4 and 30.41 of the First Ordinances of the Himachal Pradesh University. Admittedly the Election Committee cannot go into the question of vires of the Statutes. It, therefore, cannot be an adequate alternative remedy.

20. The last contention of Mr. Nag is that the petitioner is estopped from challenging the vires of the impugned proviso because he has taken part in the election without challenging the amendment. It is suggested that the petitioner should have challenged the amendment soon after it was incorporated. We do not find any substance in this contention. The vires of a law can be challenged only at a stage when the law affects a person adversely. As long as a person is not adversely affected by the law, he has no right to challenge it. We are supported by the following observation of the Supremo Court in Bar Council of Delhi v. Surjeet Singh, (1980) 4 SCC 211 : (AIR 1980 SC 1612):

'The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate afterbeing unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could come to the High Court even earlier before the election was held, But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.'

21. Since under note (2), as it stood before its amendment, a person could not, at the same time, be a member of the Court, as well as of the Academic Council, we asked the learned counsel for the petitioner about the choice of the petitioner. We were informed that the petitioner wishes to be a member of the Academic Council only. We, therefore, hold that the petitioner has been rightly elected to be a member of the Academic Council of the University.

22. We, therefore, allow the petition with costs and declare the impugned provisos ultra vires and void ab initio. Lawyer's fee is assessed at Rs. 250.


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