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Gujarat High Court

Bipinchandra Purshottamdas Patel vs State Of Gujarat on 11 March, 2022

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

     C/SCA/1546/2022                       JUDGMENT DATED: 11/03/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO.           1546 of 2022

                         With
     R/SPECIAL CIVIL APPLICATION NO. 1576 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1  Whether Reporters of Local Papers       Yes
   may be allowed to see the judgment ?
2 To be referred to the Reporter or        Yes
   not ?
3 Whether their Lordships wish to see       No
   the fair copy of the judgment ?
4 Whether     this   case   involves   a    No
   substantial question of law as to
   the     interpretation     of     the
   Constitution of India or any order
   made there under ?
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         BIPINCHANDRA PURSHOTTAMDAS PATEL
                      Versus
                 STATE OF GUJARAT
=================================================
Appearance:
MR PS CHAMPANERI WITH MR HIREN S SOMAIYA(8031)
for the Petitioner(s) No. 1
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR UDAYAN P
VYAS(1302) for the Respondent(s) No. 2,3,4
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No.
1,
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                       Date : 11/03/2022

                         ORAL JUDGMENT

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022

1. Heard learned advocate Mr. P.S. Champaneri assisted by learned advocate Mr. Hiren S. Somaiya for the petitioner, learned Senior Advocate Mr. Dhaval Dave assisted by learned advocate Mr. Udayan P. Vyas for the respondent no.2,3 and 4 and learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent-State.

2. The issues involved in both the petitions are identical and therefore, they have been heard analogously and are disposed of by this common judgment.

3. Rule returnable forthwith. Learned advocate Mr. Udayan P. Vyas waives service of notice of rule on behalf of respondent nos. 2, 3 and 4 and learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of rule for the respondent-State.

4. For the sake of convenience, facts are recorded from Special Civil Application No. 1546/2022

5. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(A) Your Lordships may be pleased to admit and allow the Special Civil Page 2 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Application;

(B) Your Lordships may be pleased to issue a writ of certiorari and/or writ of mandamus, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 12.1.2022 passed by respondent authority which was served upon petitioner on 20.1.2022 and notification dated 15.3.2021 by declaring it to be illegal, null and void, dehors the provision of law, passed in violation of principles of natural justice and fair play, unreasoned, arbitrary, is in malicious exercise of powers vested in it and bad in law to meet with ends of justice;

(C) Your Lordships may be pleased to issue a writ of certiorari and/or writ of mandamus, or any other appropriate writ, order or direction directing the respondent authorities to incorporate the name of present petitioner in the list of candidate for the forthcoming election to be held on 5.2.2022 to the post of member of Senate/syndicate of Sardar Patel University;

(D) Further be pleased to direct the respondent authorities to re-scrutinize the nomination form in light of representations made by petitioner for the election of Syndicate of the S.P. University by declaring the name of the petitioner in the list of candidate validly nominated for contesting the election to be held on 15.3.2021.

Interim reliefs:

(E) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the Page 3 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 operation, implementation and execution of impugned order dated 12.1.2022 to meet with ends of justice;

(F) Pending admission and final hearing of the present petition be pleased to direct the respondent authority to give reasoned and speaking order vide which nomination of the petitioner is rejected during the scrutiny of the nomination form for the election of the member of syndicate to meet with ends of justice.

(G) Pass such other and further orders as may deem fit in the interest of justice."

6. This Court passed the following order on 4th February, 2022 after issuing notice vide order dated 24th January, 2022 :

"Heard learned advocate Mr. P.S. Champaneri for learned advocate Mr. Hiren Somaiya for the petitioner and learned Senior Advocate Mr. D.C.Dave with learned advocate Mr. Udayan P.Vyas for respondents University and the Election Officer through video conference.

Learned advocate Mr. Champaneri submitted that the petitioner is required to be permitted to file his nomination for election of Syndicate of respondent University from the registered graduate, as no age bar would apply to the petitioner for the election of Syndicate as per section 8A of the Sardar Patel University Act, 1955(For short "Act, 1955"). It was submitted that the State Government has misinterpreted the provisions of section Page 4 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 8A of the Act, 1955 in the impugned order.

On the other hand, learned Senior Advocate Mr.D.C. Dave submitted that the word "appointed" in Section 8A of the Act, 1955 would include an elected member also and therefore, the State Government has rightly rejected the representation of the petitioner holding that section 8A of the Act, 1955 would be applicable preventing the petitioner from filing nomination.

Considering the above submissions, the petition requires consideration with regard to interpretation of section 8A of the Act, 1955 so as to decide the issue whether the person above the age of 62 years should be allowed to file nomination for the election of Syndicate from registered graduate or not.

Learned advocate Mr. Champaneri submitted that the interim relief be granted in terms of paragraph 8(E) and (F) in Special Civil Application No.1546/2022 and in terms of paragraph no. 9(C) and (D) in Special Civil Application No.1576/2022 permitting the petitioner to file nomination and contest election.

However, learned Senior Advocate Mr. D.C. Dave submitted that election is already declared and is going to be held tomorrow i.e. on 5th February, 2022 and therefore, the petitioner cannot be accommodated at last minute in the on- going election process. It was further submitted that this Court has even otherwise not granted interim relief to the petitioner in earlier round of litigation.

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Considering the above submissions, the election to be held by respondent university for the Syndicate from the registered graduate, therefore, shall be subject to the outcome of these petitions and therefore, these petitions are posted for final disposal on 15th February, 2022. To be listed on top of the Board."

7. Brief facts of the case are as under :

7.1) The petitioner is a registered graduate of the respondent-University as per section 16 of the Sardar Patel University Act, 1955 (For short "the Act, 1955"). It is the case of the petitioner that he has been an elected member of the Senate of Sardar Patel University from the year 2003 and has been elected as a member of Syndicate of the Sardar Patel University since 2002.

7.2) On 7th August, 2003, the Act, 1955 was amended by inserting section 8A. The said amendment specifies an upper age limit for the persons who are nominated or appointed to any authority of the respondent-University.

It is the case of the petitioner that such amendment would not apply to the persons like the petitioner who are elected and not nominated or appointed to any authority of the respondent-University.

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 7.3) Respondent no.3- Registrar, Sardar Patel University sought an opinion about the interpretation of section 8A vide letter dated 23rd July, 2003 from the Advocate General of the State.

7.4) The Advocate General vide letter dated 6th August, 2003 gave his opinion that those members who attained the age of 62 years cannot be continued to be a member of a financial and establishment Committee, though the membership of Senate and Syndicate may not be affected on that ground.

7.5) Another opinion was sought from the Senior Advocate Of Sardar Patel University vide letter dated 20th March, 2007, pursuant to which the Senior Advocate vide letter dated 26th July, 2007 opined that embargo under section 8A is not applicable to the elected members of the University.

7.6) The respondent-University vide letter dated 7th May, 2011 informed the petitioner that anyone who crossed the age of 62 years in the authority being Financial and Establishment Committee, Building Committee, Unfair means Committee (Examination) or any other sub-committee, automatically ceased to be a member of the said committees.

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 7.7) It is the case of the petitioner that lastly in the year 2017, the election of Senate was held for tenure of Five years to be over in the year 2022. The petitioner being the member of the Senate, is entitled to contest for vacant posts in the Syndicate. Accordingly, the petitioner filed his nomination in the year 2018 and was declared as elected in the result declared on 27th March, 2018. The tenure of the elected Syndicate member is three years and therefore, such post of Syndicate member has to be filled in by de novo election among the Senate members who has to contest for the post of Syndicate upon completion of three years. Accordingly, respondent-University published a notification on 5th March, 2021 declaring the election to the Syndicate under section 22 of the Act, 1955.

7.8) It is the case of the petitioner that the petitioner is a Senate member and therefore, he was entitled to contest for the vacant post of Syndicate and therefore, the petitioner was entitled to register his candidature and fill the nomination paper for the election scheduled to be conducted on 27th March, 2021 and later on 5th March,2022.

7.9) The petitioner being a Member of the Senate, his name was shown in the Electoral Page 8 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Roll for the Syndicate election which was published on 5th January, 2021 and 12th January, 2022.

7.10) The petitioner tendered his nomination form for the election as a candidate on 12th March, 2021.

7.11) Pursuant to notification of election, scrutiny of nomination form for election of Syndicate was held on 14th March, 2021 and the petitioner was informed that objection has been raised objection qua the age of the petitioner as the petitioner has crossed 62 years of age and therefore, the nomination papers be declared as invalid and his candidature was rejected accordingly.

7.12) It is the case of the petitioner that since neither the petitioner was given the copy of objections raised nor it has been shown to the petitioner during the process of scrutiny of nomination paper for registration of candidature for the elections of the member of Syndicate, therefore, the petitioner tendered his written explanation to the Election Officer.

7.13) The petitioner tendered another explanation on 15th March, 2021 in Gujarati language and also made detailed Page 9 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 representation to the objections tendered before the Election Officer.

7.14) It is the case of the petitioner that on 15th March, 2021 without giving any reason, the Vice-Chancellor ordered to reject the nomination paper of the petitioner by publication of notification dated 15th March, 2021.

7.15) The petitioner challenged the said action of the respondent-University by filing Special Civil Application No.5253/2021 before this Court wherein vide order dated 23rd December, 2021 direction was given to the respondent authority to decide the representation pending before it.

7.16) The respondent authority thereafter by impugned order dated 12th January, 2022 dismissed the application preferred by the petitioner and also removed the petitioner as member of the Syndicate.

7.17) Being aggrieved by such action of the respondents authorities, the petitioner has preferred this petition.

8. Learned advocate Mr. P.S. Champaneri submitted that the petitioner is entitled to file nomination form for election of Senate Page 10 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 and he could not have been prevented by rejection of his nomination form as per order dated 12th January, 2022 passed by the Principal Secretary of the Education department rejecting the appeal preferred by the petitioner in view of provisions of Section 8A (1) and (2) of the Act, 1955.

8.1) Learned advocate Mr. Champaneri referred to the provisions of section 8A of the Act 1955 to point out that the petitioner filed his nomination for being elected as per the provisions of section 15 Part-(II)(A)

(iii) being one of the representatives of the registered graduates of the respondent - University to be elected faculty-wise as determined by the statute. It was therefore, submitted that the embargo placed by section 8A of the Act,1955 upon the age limit for being eligible for appointment, nomination and co-option as a member of the authorities and on various offices of the University, cannot apply to the petitioner as the petitioner is neither appointed, nor nominated or co-opted as a member of any of the authorities or on any offices of the respondent-University.

8.2) Learned advocate Mr. Champaneri invited the attention of the Court to section 14 of the Act,1955 which prescribes who shall Page 11 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 be the authorities of the University.

8.3) Reference was also made to the provisions of section 15 of the Act, 1955 providing for constitution of Senate of the University consists of two parts, Part-I for Ex-Officio Fellows and Part-II for Ordinary Fellows. It was submitted that Ex-Officio Fellows are not included for age limit prescribed under section 8A of the Act, 1955. With regard to Ordinary fellows of Part-II, it was pointed out that it consists of further sub-parts i.e. (A) elected as specified in such part (B) consisting of fellows who are nominated by various institutes or to be elected from the donors and Part (C) provides for fifteen persons to be nominated by the State Government. It was submitted that petitioner has filed nomination as provided under sub-part(A) of Part-II of section 15 for being elected as per clause (iii) thereof being representative of the registered graduates of the University to be elected faculty-wise as determined by the Statute. It was further submitted that the petitioner could not fill up the form for Senate election as he was not permitted to file nomination form in view of Section 8A of the Act,1955.

8.4) Learned advocate Mr. Champaneri Page 12 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 thereafter invited the attention of the Court to Statute nos. 116, 117, 118, 121(5), 122 and 165 of the respondent University to point out that the names of the registered graduates as per the Statute no. 165 are entitled to be entered into electoral roll for the purpose of election of Senate member as per section 15 Part-II(A)(iii). Learned advocate Mr. Champaneri also referred to the provisions of section 22(1)(e) of the Act, 1955 to submit that as the petitioner was a member of Senate in the year 2021, he filed the nomination form for being elected as a member of the Syndicate, however, the respondent- University contrary to the provisions of section 22(1)(e) rejected his nomination form and thereafter removed the petitioner from Senate relying upon the provisions of section 8A which is contrary to the provisions of section 22(1)(e) of the Act, 1955.

8.5) It was further submitted that the petitioner was thus prevented to function as the member of the Senate illegally and further the petitioner was prevented from filing nomination form in the election of Senate which was held on 5th February, 2022 on the basis of the impugned order passed by the State Government confirming the order passed by the University applying the age bar of 62 Page 13 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 years as per section 8A of the Act, 1955.

8.6) Learned advocate Mr. Champaneri relied upon the definition of words "appointment" and "election" as per Black's Law Dictionary to submit that "election" means act of choosing or selecting one or more from a greater number of persons, things, courses or rights; having the choice of alternative. Whereas word "appointment" means to designate, choose, select, assign, ordain, prescribe, constitute or nominate. It was therefore, submitted that the words used in section 8A are appointment, nomination and co-option and therefore, the petitioner could not have been prevented from functioning as a member of the Senate by the respondent- University and could not have rejected the nomination form filed by the petitioner for Syndicate being a member of the Senate. It was submitted that by the impugned order, the petitioner is also prevented from participating in the election of Senate which was conducted on 5th February, 2022 in view of the impugned order passed by the respondent- State Government.

8.7) It was submitted that the provisions of section 3(1) of the Act, 1955 provides for incorporation of the University consisting of the Chancellor, Vice-Chancellor, Pro-Vice Page 14 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Chancellor, the Fellows and the members of the Syndicate and the Academic Council of the University and all persons who may be appointed or elected as such officers, Fellows or members under the Act, 1955. It was therefore, submitted that incorporation of the University includes both the Fellows and members of Syndicate who are either appointed or elected and therefore, section 8A cannot prescribe embargo upon the age of 62 years upon a representative of the registered graduate as per provisions of section 15 Part-II (A) of the Act, 1955 to be elected faculty-wise in view of the election procedure prescribed by statute of the respondent-University. It was submitted that section 8A of the Act, 1955 cannot be applied to the Fellows or members of the authorities of the University to be elected.

8.8) It was submitted that the petitioner being elected as a representative of the registered graduates cannot be prevented from contesting the election of Senate on the ground of age bar as per the provision of section 8A of the Act, 1955.

8.9) Learned advocate Mr. Champaneri further submitted that the respondent- University as well as the State Government has wrongly applied section 8A of the Act, Page 15 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 1955 in case of the petitioner as membership of the petitioner either of the Senate or Syndicate cannot be affected on the ground of age of more than 62 years. It was submitted that the petitioner was already a member of the Senate when his nomination form for election of members of Syndicate under section 22(1)(e) of the Act, 1955 was cancelled and the action thereafter of removal of the petitioner as fellow of the Senate is contrary to the literal interpretation of section 8A of the Act, 1955.

8.10) Learned advocate Mr. Champaneri submitted that the provisions of section 8A of the Act, 1955 does not affect the right of the petitioner to continue as a member of Senate as also the member of the Syndicate because the petitioner was elected as member of Senate from registered graduate constituency in the year 2017 and therefore, the action of respondent-University to remove the petitioner as a member of the Senate is contrary to the provisions of section 8A, as the provision of section 8A of the Act, 1955 applies only to persons who are either appointed, nominated or co-opted in any authority or office of the respondent- University.

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 8.11) Learned advocate Mr. Champaneri referred to definition of "registered graduate" as per section 2(16) to submit that registered graduate means a graduate registered under section 16 of the Act, 1955. Reference was also made to the provisions of sections 16 and 17 of the Act, 1955 to submit that the persons who are registered graduates are already prescribed under the Act, 1955. Referring to section 17, it was submitted that Ordinary Fellows can vacate the office by tendering the letter of resignation or for failure in attending the meeting for two consecutive years; Chancellor may declare the office to be vacant. Referring to section 19, it was submitted that appointment of Fellows may be cancelled by the Chancellor on the recommendation of the Senate supported by a majority of not less than two-thirds of the number of Fellows present at the meeting. Referring to above sections, it was submitted that elected member of Senate cannot be removed under section 19 as such member of the Senate is not covered by the term "appointment".

8.12) With regard to the provisions of section 2(7) which defines "Fellow" to mean an Ex-Officio Fellow or an Ordinary Fellow appointed under the provisions of the Act, 1955, it was submitted that Ex-officio Fellow Page 17 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 and Ordinary Fellow as referred to in section 15 are the persons which includes both the elected and appointed members and merely because the word "elected" is not stated in the definition of "Fellow", the provisions of section 8A of the Act, 1955 cannot be made applicable to the elected Ordinary Fellow who are specified in sub-part (A) of Part-II of section 15.

8.13) Learned advocate Mr. Champaneri relied upon the decision in case of Bharatkumar Gordhanbhai Patel v. Sardar Patel University reported in 2015(3) GLR 1858, wherein it is held as under :

"9. In our view, when by express provision, the person can hold the office of Vice Chancellor after attaining the age of 62 years, the so- called disqualification upon attaining the age of 62 years can never be made applicable to a person who is to become a member of the Senate as per Section 15 of the Act, under the head of Ex Officio fellow in capacity as Ex Vice Chancellor of the university residing in the State. It is hardly required to be stated that when there is special provision, general provision cannot be made applicable nor its effect can be diluted by general provision. In the present case, such is the position and the reasonable construction of the aforesaid both the statutes read together would show that the disqualification would not be attracted Page 18 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 even if one attains the age of 62 years and is to hold the office as exofficio member of the Senate in capacity as Ex- Vice Chancellor of the university residing in the State."

9. On the other hand, learned Senior Advocate Mr. Dhaval Dave along with learned advocate Mr. Udayan Vyas for the respondent-University submitted that section 8A of the Act, 1955 was brought on the statute by way of an Ordinance issued by the State Government in the year 2003 so as to see that no person who is more than 62 years of age be considered eligible to hold any office or post or membership in any University so as to promote fresh talent of younger age persons to contribute to the functioning of the University.

9.1) It was submitted that the Ordinance was issued pursuant to directions of University Grants Commission (UGC) to restrict the age to 62 years for being eligible to hold any office or post or membership of the University.

9.2) It was submitted that the statement issued on 26th June, 2003 along with Ordinance clearly stipulates the object for promulgation of Ordinance restricting the age to 62 years for being eligible to hold any office in the University.

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 9.3) It was submitted that on bare perusal of section 8A which is brought on statute by Gujarat Universities Laws (Amendment) Act, 2003 by uniformly inserting section 8A in the seven Universities functioning in the State of Gujarat including respondent no.2-University, clearly stipulates an embargo upon any person holding any office beyond the age of 62 years.

9.4) Learned Senior Advocate Mr. Dave submitted that section 8A has to be interpreted purposively and not literally as it is drafted by the legislature and the word "appointed" appearing in section 8A of the Act 1955 has to be read with section 2(7) which defines "Fellow" to mean an Ex-officio Fellow or an Ordinary Fellow appointed under the provisions of this Act. It was therefore, submitted that the petitioner who wants to be eligible for the election for Senate after the age of 62 years, is described as an Ordinary Fellow in section 15 Part-II of the Act, 1955. It was submitted that on perusal of section 15 Part-II(A) only sub- clauses(iii) and (vi) are for the persons whose eligibility is not restricted to the age of 62 years and therefore, once such person referred to in clause (A) of Part-II of section 15 is elected then such person Page 20 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 becomes an Ordinary Fellow to be appointed as a member of Senate and therefore, provisions of Section 8A of the Act, 1955 would be applicable even to the persons to be elected under sub-clause (iii) and sub-clause(vi) of clause(A) of Part-II of section 15 of the Act, 1955.

9.5) It was therefore, submitted that merely because legislature in its wisdom has not included the elected person under section 8A, it cannot be said that section 8A is not applicable to the persons who are the members of Senate as Ordinary Fellows to be elected.

9.6) It was submitted that New Webster's Dictionary defines the word "appoint" as to set apart, to assign, to ordain, to decree, to designate for an office and word "appointment" as the person appointed. Therefore, when a person is elected as an Ordinary Fellow, as per section 15(II)(A), he is appointed as a member of Senate.

9.7) Reference was also made to Concise Law Dictionary for the meaning of the word "appointment" which defines appointment as direction, designation, the selection of a person for an office.

9.8) In support of his submissions Page 21 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 learned Senior Advocate Mr. Dave relied upon the following decisions of the Supreme Court :

1) The Chairman Board of Mining Examination and Chief Inspector of Mines and another v.

Ramjee reported in (1977) 2 Supreme Court Cases 256.

2) Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others reported in (1979) 2 Supreme Court Cases 34.

3) Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta High Court reported in 1956 AIR (SC) 285, wherein it is held as under :

"9. It must be mentioned, at this stage, that so far as the power of dismissal is concerned, the position under the Constitution of 1950 is not open to any argument or doubt. Article 229(1) which in terms vests the power of appointment in the Chief Justice is equally effective to vest in him the power of dismissal. This results from section 16 of the General Clauses Act which by virtue of article 367(1) of the Constitution applies to the construction of the word "appointment" in article 229(1). Section 16 of the General Clauses Act clearly provides that the power of "appointment" includes the power "to suspend or dismiss"."

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022

4) All India Bank Officers' Confederation and others v. Union of India and others reported in (1989) 4 Supreme Court Cases 90, wherein it is held as under :

"5. The Additional Solicitor General, representing the Central Government, and Mr. Harish N. Salve, counsel for the Reserve Bank of India, contend that the Act postulates both election and nomination of members of the Board of Directors and the choice between the two modes of appointment is left to the Central Government. The election or nomination has to be conducted in a manner as specified in the Scheme. The Scheme in effect postulates all appointments to be by nomination. In the case of workmen-employees, the Director is appointed by the Central Government from amongst the names of three employees furnished by representative Union. Such appointment though made out of, and restricted to the panel furnished by the Union, is in effect a nomination of the one preferred by the Central Government. In the case of non- workmen employees the choice is not restricted to any panel and the only condition postulated is consultation with the Reserve Bank of India.

           Unionisation,      though   desirable    among
           workmen,    is     not   a   matter    to   be
           encouraged     in    the    case   of    other

employees for selection to the Board of Directors, for the Directors must represent the interest of the bank as a whole and not of any Special class of persons. The Additional solicitor General also submits that appointment by election is not the only mode of representative appointment, but Page 23 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 nomination is perfectly valid and more effective from the point of view of the true institutional interest, particularly with reference to management efficiency.

6. In the light of these rival contentions, we shall examine the relevant provisions of the Act and the Scheme. sec. 9 of the Act provides:

"9. Power of Central Government to make scheme. -

(1) The Central Government may, after consultation with the Reserve Bank, make a scheme for carrying out the provisions of this Act. (2) In particular. and without prejudice to the generality of the foregoing power. the said scheme may provide for all or any of the following matters, namely :

(a) ...

(b) the constitution of the Board of Directors, by whatever name called, of the corresponding new bank and all such matters in connection therewith or incidental thereto as the Central Government may consider to be necessary or expedient,

(c) ...

(d) such incidental, consequential and supplemental matters as may be necessary to carry out the provisions of this Act.

(3) Every Board, of Directors of a corresponding new bank, constituted under any scheme made under sub-sec. (1), shall include-

(a) representative of the employees, and of depositors, of such bank, and Page 24 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022

(b) such other persons as may represent the interests of each of the following categories. namely, farmers, worker's and artisans, to be elected or nominated in such manner as may be specified in the scheme."

7. The object of sec. 9 of the Act, insofar as it is material, is to empower the Central Government to make a scheme for the constitution of the Board of Directors so as to include representatives of the employees and other specified categories. "Employees" include workmen and non-workmen. The categories specified, apart from the employees, are depositors, farmers, workers and artisans. The representatives of these classes of people are to be either elected or nominated in the manner specified by the Scheme. The legislature has left it to the Central Government to make a scheme providing for appointment to the Board from amongst the specified categories either by election or by nomination. The discretion as to the mode of appointment is, of course, left to the Central Government, but it is not an unrestrained or unrestricted discretion, but a discretion which must be reasonably exercised, so as to give effect to the true intent of the legislature as to the composition of the Board of Directors. The object of the legislature is to give the Board a truly representative character so as to reflect the genuine interests of the various persons manning or dealing with the bank as an industry and a commercial enterprise."

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022

5) Dinesh Prasad Yadav v. State of Bihar and others reported in 1995 Supp (1) Supreme Court Cases 340, wherein it is held as under :

"8 The expression 'election' has not been defined under the Act. In the absence of any definition by the legislature we have to follow the ordinary meaning given to the said expression. Collin's English Dictionary defines 'election' as under:

"The selection by vote of a person or persons from among candidates for a position, esp. a political office. The act or an instance of choosing."

Webster's Comprehensive Dictionary, International Edn., gives the following meaning to the expression 'election':

"The selection of a person or persons for office as by ballot. A choice, as between alternatives, choice in general."

9. The expression 'election', therefore, means selection of a person by vote or even otherwise. When a person is nominated by way of selection on the basis of a given criteria from amongst several persons, then in the broader sense he is elected to the office. We are of the view that the expression 'elections', in the first proviso to Section 14(10) of the Act, has been used in the broader sense. It includes election by ballot as well as the choice by nomination. This interpretation would make Rule 22(2) of the Rules workable. Section 14(2) of the Act vests the management of a registered society in a Page 26 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Managing Committee constituted in accordance with the Rules. Section 14(4) further provides that even up to two- third members of the Managing Committee can be nominated. Ss. (8) of Section 14 further imposes bar on the members of the Managing Committee for re-election after they have held two consecutive terms. Rule 22(2) read with Section 14(2) of the Act makes it abundantly clear that constitution of the Managing Committee is to be treated as complete only when the elections by ballot as well as the nominations are finalised. Even otherwise, to fulfil the avowed object of the Act and to encourage and promote the co-operative movement in the State, it is necessary that the Managing Committee as constituted under Rule 22(2) of the Rules should be given its full tenure of three co-operative years. Having provided for three years' term in office to the Managing Committee of a society, it could not be the intention of the legislature to leave it to the State government to reduce the same to as short a period as three weeks, which would be a mockery. We, therefore, hold that in the first proviso to Section 14(10) the expression "the operative year in which elections are held" means not only the elections by way of ballot, but also the nominations under the Act. The net result is that the term of the Managing Committee under the Act and the Rules is to commence from the beginning of the co-operative year in which the nominations by the State government are completed and the Managing Committee is constituted in terms of Rule 22(2) of the Rules."

9.9) Referring to the above decisions, it Page 27 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 was submitted that section 8A of the Act, 1955 is required to be interpreted with regard to the object with which it was brought on statute so as to restrict the eligibility to hold any office of the University up to the age of 62 years. Learned Senior Advocate Mr. Dave therefore, submitted that instead of literal interpretation of provisions of section 8A, purposive interpretation should be made.

9.10) Relying upon the observations made by the Supreme Court in case of Bengal Immunity Co. Ltd v. State of Bihar reported in AIR 1955 SC 661, it was submitted that "the Court is required to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bona publico." It was submitted that the Court is supposed to iron out the crease in drafting of the legislature as held by the Supreme Court in case of Ahmedabad Municipal Corporation and another v. Nilaybhai R. Thakore and another reported in (1999) 8 Supreme Court Cases 139 wherein the Apex Court relied upon the famous and oft-quoted principle relied on by Lord Page 28 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Denning in the case of Seaford Court Estates Ltd. v. Asher reported in (1949) 2 All ER 155 (CA) which reads as under :

"[When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."]"

9.11) Learned Senior Advocate Mr. Dave therefore, submitted that the petitioner was rightly prevented from filing nomination form for Syndicate and he was rightly removed as a member of the Senate as respondent-University realised that he was over-aged and therefore, the impugned order passed by the appellate authority approving the decision of respondent no.3-University is required to be upheld. It was submitted that merely because the petitioner was permitted to be elected by respondent no.3- University for a term of 5 years in the year 2017 even though he has attained the age of 62 years at the relevant time, would not give right in favour of the Page 29 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 petitioner to file nomination form for election of Senate held in the year 2022.

9.12) Learned Senior Advocate Mr. Dave therefore, submitted that on purposive interpretation of section 8A of the Act, 1955, no person above the age of 62 years is eligible to hold any office of respondent no.3-University and therefore, words "appointed", "nominated" and "co-opted" are to be interpreted from the point of view of object of insertion of section 8A by way of amendment in the year 2003. The word "appointed" includes all the persons who constitute Senate as per section 15 or become members of Syndicate as per section 22 of the Act, 1955. It was submitted that the statute referred to by learned advocate for the petitioner cannot override the provisions of the Act and moreover, the statutes which are relied upon pertains to the procedure of election which cannot be considered for the purpose of considering the eligibility of a person to hold any office in the respondent no.3-University.

9.13) It was further submitted that section 3(1) of the Act, 1955 refers to the incorporation of the University and only stipulates who are the persons who would become the part of the University as body Page 30 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 corporate. It was therefore, submitted that reference to the persons elected as officers, fellows or as any member under the Act only refers to the constitution of the body corporate and in-fact such persons are appointed in the office or the authorities of the University. It was submitted that section 8 of the Act, 1955 provides that who are the officers of the University and sub- clause(iii) of sub-section(1) of section 8A of the Act, 1955 refers to member of the authorities of the University, any Committee or any other body thereof and therefore, no person who attains the age of 62 years can be appointed as member of the authorities of the University, any Committee or any body thereof. It was also submitted that the officers who are otherwise appointed like Chancellor, Vice Chancellor are given exemption under section 8A with regard to the age limit. Section 14 of the Act, 1955 refers to the authorities of the University which includes the Senate and the Syndicate. Similarly, persons who are Ex-officio Fellows as stated in Part-I of section 15 except Chancellor, Vice-Chancellor, Pro-Vice Chancellor who are exempted from operation of section 8A, all other Ex-officio Fellows are eligible to hold the office in the University till they are in the service and therefore, age limit of 62 years would be maintained so Page 31 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 far as such other Ex-officio Fellows are concerned. Section 8A and section 14 of the Act, 1955 refer to authority of the University which includes Senate and Syndicate 9.14) It was submitted that except clause

(iii) and clause(vi) of Part-II(A) of section 15 all other persons would be bound by the age limit of 62 years and merely because the persons referred to in clause(iii) and clause

(vi) of Part-II(A) of section 15 are not specifically stated in section 8A, such persons cannot be given a preference to hold an office beyond the age of 62 years and the provisions of section 8A has of the Act, 1955 to be construed harmoniously and purposively to include all the persons eligible to hold office till the age of 62 years except Chancellor, Vice-Chancellor and Pro-Vice Chancellor as per proviso to section 8A of the Act, 1955.

9.15) It was therefore, submitted that in any view of the matter, the petitioner is not eligible to be the member of Senate or Syndicate and was therefore, rightly not considered as such by the impugned order passed by the University confirmed by the State authorities.

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10. Before adverting to the controversy in question as to whether the petitioner who is admittedly over the age of 62 years can be considered to be elected as an Ordinary Fellow of the Senate of respondent no.3- University or is eligible to be appointed as a member of the Syndicate, it would be germane to refer to the relevant provisions of the Act and the statutes. Relevant provisions of the Sardar Patel University Act, 1955 are as under :

: The Sardar Patel University Act, 1955 :

"2(7) "Fellow" means an ex-officio Fellow or an Ordinary Fellow appointed under the provisions of this Act;"

"2(16) "registered graduate" means a graduate registered under section 16;"

"2(20) "teacher" means a professor, reader or lecturer, imparting instruction or guiding research in the University, an affiliated college or recognized institution or such other person as may be declared to be a teacher by the Statutes ;"

"3(1) The Chancellor, the Vice-

Chancellor, [the Pro-Vice- Chancellor], the Fellows and the members of the Syndicate [and the Academic Council] of the University and all persons who may hereafter be Page 33 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 appointed or elected as such Officers, Fellows or members under this Act, so long as they continue to be such officers, Fellows or members, are hereby constituted and declared to be one body corporate by the name of the [Sardar Patel University], and such body corporate shall, by such name, have perpetual succession and a common seal, and by such name shall sue and be sued."

"8A. (1) Notwithstanding anything contained in this Act, Statutes, Ordinances, Regulations and Rules, no person shall be appointed, nominated or, as the case may be, co-opted,-

(i) on the post of officers referred to in clauses (iii), (iv) and (v) of section 8;

(ii) on the post of teacher; or

(iii) as a member of the authorities of the University, any committee or any other body thereof after he attains the age of 62 years:

Provided that nothing in this section shall apply to the Chairman or a member of any of the authorities of the University, committee or any other body thereof, who holds the Chairmanship or membership by virtue of his office as a Chancellor, Vice-Chancellor or, as the case may be, the Pro-Vice Chancellor.

(2) Any person who has been Page 34 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 appointed on the posts referred to in clauses (i) and (ii) of sub-

section (1) or nominated or co-opted as a member of any of the authorities of the University, and committee or any other body thereof, shall cease to hold his office as such or, as the case may be, to be a member after attaining the age of 62 years."

"14. The following shall be the authorities of the University :--

(1) the Senate, (2) the Syndicate, [(2A) the Academic Council,] (3) the Faculties, (4) the Boards of Studies, (5) the Board of Posts-graduate Studies and Research, (6) such other bodies of the University as the Senate may declare by Statutes to be the authorities of the University."

"15. The Senate shall consist of the following :--

I. Ex-Officio fellows.

xxx II. Ordinary Fellows.

(A) Elected as specified below : --

(i) One teacher from each of the Faculties elected by the teachers of subjects comprised under that Faculty,

(ii) One teacher from the each of the affiliated colleges, constituent colleges and recognized institutions Page 35 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 to be elected by the teachers in each college or institutions, as the case may be,

(iii) Five representatives of the registered graduates of the University to be elected faculty-

wise as determined by Statutes; such representatives being persons who are not teachers or secondary teachers:

Provided that no faculty shall be represented by more than one representative,

(iv) One representative to be elected by Head Masters, 4 [ * * * * * * * * * * *] in the University area from amongst themselves,

(v) One representative to be elected by secondary teachers in the University area from amongst themselves, such representative not being a Head Master, [(va) One representative to be elected by members of the [Anand District Panchayat] from amongst themselves],

(vi) [Two representatives] to be elected by the members of the [Gujarat] Legislative Assembly from amongst its members :

Provided that every person elected under clauses (i) to (vi) shall continue to hold the office of a Fellow only so long as he is a member of the electing body."

"16. (1) Subject to the provisions Page 36 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 of sub-section (2), the following persons shall be entitled to have their names entered in the register of graduates or to be registered, graduates, namely:--

(a) persons who are the graduates of the University,

(b) persons who being graduates of any other University are recognised as registered graduates in accordance with the Statutes."

"17. (1) Any Ordinary Fellow may, by a letter addressed to the Chancellor, resign his office and on the acceptance of his resignation the office shall become vacant.

(2) If, for period of two consecutive years, any Ordinary Fellow, except a fellow nominated or elected under paragraph (B) under heading "II. Ordinary Fellows" in section 15, has not attended a meeting of the Senate, other than a convocation, the Chancellor may declare his office to be vacant.

(3) Any person, who holds any office in the University by virtue of his being a Fellow, shall cease to hold such office on his ceasing to be a Fellow."

"18. (1) The Ordinary Fellows shall, save as herein otherwise provided, hold office for five years.

(2) An Ordinary Fellow who has vacated his office may, subject to the provisions of this Act, be elected or nominated to be an Page 37 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Ordinary Fellow."

"19. (1) The Chancellor may, on the recommendation of the Senate supported by a majority of not less than two-thirds of the number of Fellows present at the meeting and such majority comprising not less than one half of the total number of Fellows, cancel the appointment of an Ordinary Fellow of the University if in his opinion, he has been convicted by a court of law of any offence which is serious and involves moral turpitude or if he has been guilty of disgraceful conduct:

Provided that the Senate shall give to the Fellow concerned an opportunity to to be heard in his defence before making such recommendation.

(2) As soon as such order is notified in the Official Gazettee, such person shall cease to be a Fellow; and he shall not be eligible for re-appointment or re-election until the disqualification has been removed by the Chancellor by a notification in the Official Gazettee."

"22. 1 [(1) The Syndicate shall be the executive authority of the University and shall consist of the following, namely:--

(e) Ten persons elected by the Senate in accordance with the Statutes [from amongst Fellows other than those who are Heads of University Departments or Principals Page 38 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 of Colleges or are Fellows under paragraph (D) under the heading "I-

Ex-Officio Fellows", or under clauses (i) and (ii) of paragraph (B) under the heading "II-Ordinary Fellows", in Section 15],"

11. Statute Nos. 116, 121, 122, 165 read as under :

"116 (a) The Registrar shall prepare the electoral rolls for all bodies entitled to elect members to the authorities of, the University, showing the names/ designations of all persons or bodies qualified to vote. The preparation or revision of the rolls shall be notified through a notice published in news-papers selected by the Vice-Chancellor in the case of the roll of registered graduates and through notices circulated through the Heads of Institutions in the case of rolls of 'teachers', 'Head Masters' and 'Secondary Teachers'. The rolls shall include the names of all persons who are the 'registered graduates' of the University, 'teachers', 'Head Masters', or 'Secondary Teachers' as the case may be, within the meaning of the Act and the relevant Statutes, on the fourteenth day from the date of the notice (counting the date of the notice as the first day).

(b) For the purpose of election to the Syndicate the register of the members of the Senate maintained in the office of the University shall Page 39 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 be treated as the electoral roll.

(c) Subject to the provisions of Clause (a) above the Vice-Chancellor shall have the authority to correct the rolls by adding, altering or omitting names, if any omission or wrong entries be brought to his notice, and such corrections shall be published at least three clear days before the date fixed as the last date for receiving nominations at an election or bye-election to the Senate."

"121. For the purpose of election of ordinary Fellows from the constituency of registered graduates under Section 15 II(A)(iii) every person recognised as registered graduate under Statute-165 shall be enrolled as a voter in the respective Faculty to which the subject in which he holds the degree relates. Election of five representatives of the registered graduates to be elected faculty-wise to the Senate under Section 15II(A)

(iii) of the Act shall be in the following manner :

(1) One representative by registered graduates in the Faculties of Arts and Education from among themselves;

(2) One representative by registered graduates in the Faculty of Science from among themselves;

(3) One representative by registered graduates in the Faculty of Engineering and Technology from among themselves;

Page 40 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022

C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 (4) One representative by registered graduates in the Faculty of Business Studies and Management from among themselves; and (5) One representative by registered graduates in the Faculties of Law and Home Science and any other faculty that may be instituted by the University from time to time."

"122. If a person applying to be recognised as a registered graduate is qualified to be assigned to more than one Faculty under Statute 121, he shall at the time of making the application for enrollment as registered graduate elect the Faculty to which he desires his name to be assigned in the register of graduates and for the purpose of election of 'Ordinary Fellows' under Section 15 II(A)(iii) such person shall be deemed to belong to the Faculty which he has elected;

provided that a person failing to elect the Faculty in the manner indicated shall be assigned to the Faculty in which he took his first degree."

"165. (a) All graduates of this University shall be enrolled as Registered Graduates at the time of admission to the First degree and shall pay such fee for registration as may be prescribed by Ordinance/s, and such enrolments shall hold good for five years beginning from the first January of the following year in which they have taken the degree.

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(b) In addition, any graduate of any other statutory Indian University or a recognised foreign university, who ordinarily resides within the university area, shall, on payment of the prescribed fee, be entitled to have his name enrolled as a Registered Graduate of this University under Section 16(1)(b)of the Act, for a period of five years beginning from the 1st of January of the following year in which he has applied for registration provided he produces along with his application an evidence to the satisfaction of the Vice-Chancellor that he has been continuously residing within the university area for not less than 180 days immediately before the date on which he applies for registration.

(c) All graduates of the university registered under (a) above during the years 1966, 1967, 1968, 1969 and 1970 shall be deemed to have been registered upto 3lst December, 1971, 1972, 1973, 1974 and 1975 respectively and they will be required to make a fresh application in the prescribed form to the Registrar if they are desirous of having their names continued or retained on the register of graduates or of continuing themselves as Registered Graduates, on the expiry of the period mentioned here above. Those graduates of this university who were enrolled as Registered Graduates during or before 1965 shall be required to apply afresh in the prescribed form, if they desire to continue their names as Registered Graduates.

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(d) All persons enrolled as Registered Graduates of this University under (b) above in accordance with Section 16(1)(b) of the Act shall cease to be registered graduates with effect from 31st December, 1971 and shall be required to make a fresh application in the prescribed form if they desire to continue their names as Registered Graduates of this University after the aforesaid date."

12. Section 8A was brought on statute in the year 2003 by way of an ordinance. The statement along with the Ordinance as published in the Government Gazette dated 26th June, 2003 reads as under :

"STATEMENT In fulfillment of the Constitutional responsibility for maintenance of standards in higher education, the Central Government and the University Grants Commission have taken from time to time several measures relating to the revision of pay-scales, minimum qualification for appointment of college and University teachers in order to attract and retain talent in the teaching profession.

2. As per directions of the University Grants Commission in this regard, the age limit of superannuation of a college and University teacher has been fixed at 62 years and the University Grants Commission has also directed that no retired teacher be appointed on any Page 43 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 statutory or even non-statutory position in colleges and University. This view also holds good for the members who are nominated appointed or co-opted on various authorities, court, council, committee, board or body etc.

3. Most of the Vice-Chancellors also hold strong view that no person who is more than 62 years of age be considered eligible to hold any office or post or membership in any University authority court council, board, committee or body etc. which effectively close the doors to fresh talent from contributing to the functioning of the University.

4. Since no University Act provides that no person who has attained the age of 62 years shall be eligible for being appointed, nominated or co-opted, or continue on various statutory and non- statutory bodies, it is considered necessary to amend the certain University Acts so as to bring them in conformity with the directions of University Grants Commission and to have talented young persons on various offices and posts.

As the Gujarat Legislative Assembly is not in session, this Ordinance is Promulgated to amend certain Acts relating to Universities in the State to achieve the aforesaid object."

13. Thereafter by Gujarat Universities Laws (Amendment) Act, 2003, section 8A was amended in all the Acts of seven Universities of the State of Gujarat including the respondent no.2 - University prescribing the eligibility Page 44 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 of age limit for appointment, nomination and co-option in various authorities and on various offices of the Universities.

14. Considering the above provisions, statutes and Statement of the Ordinance, it is apparent that the purpose for which section 8A of the Act, 1955 is brought on statute is pursuant to the directions of University Grants Commission in this regard which prescribes the maximum age limit of superannuation of colleges and University teachers as 62 years and therefore, it was directed by the UGC that no retired teacher be appointed on any statutory or even non statutory position in colleges and Universities and further, the same was also made applicable to the members who are nominated, appointed or co-opted on various authorities, Courts, Councils, Committees, Boards, Bodies, etc. Of the University.

15. As per the Statement of Objects, it can be inferred that section 8A of the Act, 1955 is brought on statute so as to promote the fresh talents so as to contribute to the functioning of the University and as no University Acts provided for age limit for restricting a person to be appointed, nominated or co-opted after 62 years, section 8A is inserted.

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16. On plain reading of section 8A of the Act, 1955, it appears that it applies to the persons to be "appointed" or "nominated" or "co-opted" only. Section 8A(1) of the Act, 1955 starts with a non-obstante clause with negative covenant that no person shall be appointed, nominated or co-opted as the case may be on the post of officers of Faculties, Registrars and such other officers in the service of the University or on the post of the teachers or as a member of the authorities of the University, as prescribed in section 14 of the Act, 1955, any Committee or any part or any other body thereof, after he attains the age of 62 years. Proviso to sub-section(1) of section 8A, however specifies that the same would not apply to the Chairman or a member of any of the authorities of University, Committee or any other body thereof, who holds the Chairmanship or membership by virtue of his office as a Chancellor, Vice-Chancellor, or as the case may be, Pro-Vice chancellor. Sub- section (2) further stipulates that any person who has been appointed on the posts referred to in clauses (i) and (ii) of sub- section (1) or nominated or co-opted as member of any of the authorities of the University, and Committee or any other body thereof, shall cease to hold his office as Page 46 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 such or, as the case may be, to be a member after attaining the age of 62 years. Therefore, the provision of section 8A of the Act, 1955 places an embargo upon a person to hold an office after attaining the age of 62 years. Therefore, the question arises whether a person who is to be elected as specified in clause(A) of Part-II of section 15 of the Act, 1955 as Ordinary fellow, the age limit of 62 years would be applicable or not?

17. Section 15 of the Act, 1955 provides for constitution of Senate. Part-I refers to Ex- officio Fellows including Vice-chancellor, Chancellor, and Pro-Vice Chancellor who are exempted from the age limit criteria of 62 years as per section 8A and all other Ex- Officio Fellows are by the prescribed post and therefore, the person on such post would retire on attaining the maximum age of superannuation of 62 years and therefore, the age limit prescribed in section 8A shall be maintained so far as Ex-Officio Fellows stated in Part-I of section 15 being members of the Senate, except Chancellor, Vice- Chancellor, Ex-Vice Chancellor or Pro-Vice Chancellor. However, Part-II which applies to Ordinary Fellows to become member of the Senate is divided into two parts. Part (A) prescribes the manner in which the persons are to be elected as specified therein to be Page 47 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Ordinary Fellows consisting of; firstly, one teacher from each of the faculties elected by the teachers of the subjects comprised under the said faculty, secondly, one teacher from each of the affiliated colleges, thirdly, five representatives of the registered graduates of the University to be elected faculty-wise, fourthly, one representative to be elected by Head Masters in the University area, fifthly, one representative to be elected by Secondary teachers in the University area, sixthly, one representative elected by the members of Anand District Panchayat and seventhly, two representatives to be elected by the members of Gujarat Legislative Assembly. Proviso to clause (A) provides that every person elected under clauses (i) to (vi) shall continue to hold the office of a Fellow only so long as he is a member of the electing body. Therefore, the person who is to be a member as a registered Graduate of the University, is entitled to continue to hold the office of a Fellow so long as he is a member of the electing body. Similarly, the member of Anand District Panchayat and the two representatives to be elected by members of the Gujarat Legislative Assembly would also continue to hold the office of the Fellow so long as they are the members of the electing body and so far as the teachers and Page 48 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 headmasters are concerned, they would continue to be as such, till they attain the age of superannuation.

18. The Statement of Object with the ordinance, by which section 8A is inserted, is required to be considered to understand why the amendment is brought. It appears that in order to maintain the standards in higher education, several measures relating to revision of pay scales, minimum qualification for appointment of College and University teachers, and in order to attract and retain talent in the teaching profession have been taken by the Central Government and UGC from time to time. The UGC has issued directions with regard to the age limit of superannuation for college and University teachers as 62 years and the UGC has further directed that no retired teachers be appointed on any statutory or even non statutory position in colleges or Universities.

19. In view of such directions of the UGC, the Act, 1955 was amended initially by ordinance and subsequently, by the Amendment Act, 2003 with effect from the date of ordinance to give effect to the above directions of the UGC, therefore, the amendment that no retired teacher who has Page 49 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 attained the age of 62 years to be appointed on any statutory or non statutory position of colleges/University has to be interpreted literally. The scheme of the Act, 1955, more particularly, sections 15 and 22 of the Act, 1955 provides for constitution of Senate and Syndicate which are the authorities as per section 14 of the Act, 1955. Therefore, Fellows and members of the Senate and Syndicate have to be governed by the same yardstick. There cannot be discrimination between the Fellows and the members of Senate and Syndicate respectively merely because one is nominated/appointed or co-opted and the other is elected. Even sub-section (7) of section 2 of the Act, 1955, defines "Fellow" to mean an Ex-officio Fellow or an Ordinary Fellow appointed under the provisions of the Act, 1955. Ex-Officio fellows are appointed, nominated or co-opted as per section 15 Part- I pertaining to Ex-Officio Fellows whereas Ordinary Fellows are to be part of Senate as per Part-II of section 15 of the Act, 1955. It comprises of three groups, Group(A) being those fellows who are elected as specified therein, Group(B) being those Fellows who are nominated and Group-C are fifteen persons of those Fellows who are nominated by the State Government. Merely because an Ordinary Fellow of the Senate is to be elected, it cannot be said that he is not appointed, Page 50 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 otherwise the definition as per sub- section(7) of section 2 of the Act, 1955 pertaining to Ordinary Fellows who are to be treated as Fellows would fail if Ordinary Fellow is not appointed under the provisions of the Act, 1955. Therefore, an Ordinary Fellow elected as per Group(A) of Part-II of section 15 is to be appointed as "Fellow" of the Senate. In such circumstances, it is also pertinent to note that out of the six categories of the Ordinary Fellows to be elected as specified in Group(A) Part-II of section 15, a candidate who fall in clauses

(iii), (va) and (vi) are only the persons who would be elected beyond the age of 62 years. Therefore, on harmonious and purposive interpretation of section 15 Part-II (A) read with section 8A of the Act, 1955, it can be culled out that no person above the age of 62 years can become a member of the Senate, consequently, Syndicate under section 22(1)

(e) of the Act, 1955.

20. Reliance placed by the petitioner on the decision of Division Bench of this Court in case of Bharatkumar Gordhanbhai Patel (supra) is not applicable in the facts of the case because in the facts of the said case, issue pertained to election of the Senate member wherein the name of the petitioner before the Court was not included in the electoral roll Page 51 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 as an Ex-offico Fellow of the Senate of the University by virtue of holding post of Vice- Chancellor after attaining the age of 62 years. This Court therefore, considering the proviso to section 8A of the Act, 1955 came to the conclusion that bar of attaining the age of 62 years would not apply to a chairman or the member of any of the authorities of the University which would include Senate if one is by virtue of his office as a Chancellor, Vice-Chancellor or Pro-Vice Chancellor. Therefore, in the facts of the said case, it was held by the Court that when by express provision, the person can hold the office of Vice-Chancellor after attaining the age of 62 years, he cannot be disqualified upon attaining the age of 62 years for becoming the member of Senate as per section 15 of the Act under the head of "Ex-Officio Fellow" in the capacity as Ex-Vice Chancellor of the University residing in the State.

21. The Apex Court in case of The Chairman Board of Mining Examination and Chief Inspector of Mines and another (supra) has held that Court must look to the object and purpose of the legislation as under :

"(9.) Unfortunately, the High Court surrendered to narrowness of interpretation of Regulation 26 by accepting the submission of the respondent. To be literal in meaning is Page 52 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 to see the skin and miss the soul of the Regulation. The judicial key to construction is the composite perception of the deha and dehi of the provision. So viewed, Regn. 26 is easy of comprehension.

(10.) The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable. The argument runs thus. Without first suspending the officer, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter. Since the Regional Inspector did not suspend the respondent, the Board had no jurisdiction. Secondly, the Regional Inspector had no power to recommend, but only to report and so the Board's order, influenced by the recommendation, was bad in law. Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, voiding the order.

(11.) All the three points serve to warn the courts how over-judicialisation can be subversive of the justice of the law. Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector? The Board's power is independent and is ignited by the report of the Regional Inspector. Such a report exists here. There is an overall duty of oversight vested in the Board to enforce observance of rules of safety. To invalidate the Board's order because the Page 53 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 Regional Inspector did not suspend the certificate is a fallacy."

22. Similarly, in case of Bipinchandra Purshottamdas Patel (Vakil) v. State of Gujarat and others reported in (2003) 4 Supreme Court Cases 642, coincidentally the petitioner of this Case, the Apex Court while applying the principle of interpretation of statute has held as under :

"19. A statute is to be construed according to the intention of the legislature. The golden rule of interpretation of a statute is that it has to be given its literal and natural meaning. The intention of the legislature must be found out from the language employed in the statute itself. The question is not what is supposed to have been intended but what has been said. (See Dayal Singh vs. Union of India (2003) 2 SCC 593)

20. It is well settled that when the Legislature has employed a plain and unambiguous language, the Court is not concerned with the consequences arising therefrom. Recourse to interpretation of statutes may be resorted only when the meaning of statute is obscure. The Court is not concerned with the reason as to why the Legislature thought it fit to lay emphasis on one category of offences than the rest.

21. A statute, it is trite, must be read in its entirety for the purpose of finding out the purport and object thereof. The Court, in the event of its Page 54 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 coming to the conclusion that a literal meaning is possible to be rendered, would not embark upon the exercise of judicial interpretation thereof and nothing is to be added or taken from a statute unless it is held that the same would lead to an absurdity or manifest injustice.

22. It is also a well settled principle of law that when two different expressions are used by the legislature, the same must be held to have intended to convey two different meanings. Section 40, as noticed hereinbefore, uses the term 'instituted' in relation to offences under the statutes specified therein; whereas in relation to the others, the term 'during the trial has been used."

23. The Apex Court was dealing with powers under section 40 of the Gujarat Municipalities Act, 1963 where under the appellant was suspended by the authorised officer on the ground of two FIRs being lodged for offences under sections 307, 143, 147, 148, 149 of Indian Penal Code read with section 25(1)(c) of the Arms Act and under section 135 of the Bombay Police Act and the appellant was arrested and detained in judicial custody during investigation. It was the case of the appellant before the Apex Court that as the offences alleged to have been committed by him were triable by a Court of Session, the trial thereof in contradistinction to the term "investigation"

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C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 or "inquiry" would commence from the stage of section 228 of the Code of Criminal Procedure, 1973 and therefore, such investigation and/or inquiry could not be said to be a "trial" within the meaning of section 40 of the Act, 1963. In such facts, the Apex Court while interpreting the word "trial" in view of the aforesaid principle of interpretation of statutes came to the conclusion that the word "trial" should not be given a restricted meaning so as to include only proceedings after the accused is actually arraigned before the competent court for framing and facing of the charges. It was further held that while providing for different standards in the matter of issuance of order of suspension, the legislature must have kept in mind the impact of institution of cases which in its opinion would amount to moral turpitude.

24. In case of Chief Justice of Andhra Pradesh and others (supra) while considering the issue that compulsory retirement is not a punishment under Article 311 of the Constitution of India, the Supreme Court held that when two interpretation is possible, the statement of objects and reasons must be resorted to and held as under :

"67. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the Page 56 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud J. as he then was) put it in Kesavananda Bharati's case (AIR 1973 SC 1461) "while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in 'a single complex instrument in which one part may throw light on the others' so that the construction must hold a balance between all its parts"."

25. Therefore, keeping in mind the principles enunciated above, when the word "elected" is not found in section 8A of the Act, 1955, apparently, two alternative constructions are possible. One that words "appointed", "nominated" and "co-opted" to Senate and Syndicate would also include the word "elected" and the other that as the word "elected" is not mentioned in section 8A, bar to the upper age limit of 62 years would not apply to the Ordinary Fellows who are to be elected as per clauses (iii), (va) and (vi) of Part-II(A) of section 15 of the Act, 1955. The Court has to choose the one which will be Page 57 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 in accordance with the other parts of the statute and would eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between the various provisions of the Act and the interpretation which ensure smooth, harmonious working is to be preferred vis-a- vis the interpretation which creates conflict between various provisions or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment.

26. In view of the above principles, reference is required to be made to the Statement of objects which are stated while issuing the ordinance by which section 8A was inserted in the year 2003 which has subsequently been enacted by the Amendment Act, 2003. As per the direction of the UGC, no person above the age of 62 years to be appointed on statutory or non statutory position in any college or University and keeping this object in mind, section 8A of the Act, 1955 is required to be interpreted and to be understood accordingly. Therefore, though the word "elected" is not stated or mentioned in section 8A of the Act, 1955, the same is required to be understood to be included in the word "appointed" appearing in the provisions of section 8A of the Act.

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27. The Apex Court in case of Ahmedabad Municipal Corporation and another (supra) while interpreting the provisions of Rule 7 of the Rules for Admission to N.H.L. Municipal Medical College, Ahmedabad, made reference to the oft-quoted principle relied on by the Lord Denning in the case of Seaford Court Estates Ltd v. Asher reported in (1949) 1 ALL England Reporter 155(CA) has held as under :

"When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

28. Reference made by the Apex Court provides a guidance for interpretation of section 8A of the Act, 1955, where apparently word "elected" is missing and therefore, instead of blaming the draftsman of legislature, the constructive task of finding the intention of legislation is to be made so as to give "force and life" to the intention of the insertion of section 8A by the Amendment Act, 2003 so as to broaden the word "appointed" to include the persons who are Page 59 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 elected as per the provisions of section 15 Part-II(A) of the Act, 1955.

29. On considering the definition of word "appointed" and "elected" as per the dictionary meaning as stated here-in-above, a person who is elected has to be appointed as a Fellow of the Senate who may be either Ex- Officio Fellow or Ordinary Fellow. Section 15 Part-II(A) of the Act, 1955 only provides the mode for persons to be appointed through election. The person who is elected is to be appointed as a "Fellow" of the Senate as per section 2(7) of the Act, 1955. Therefore, in harmonious and purposive interpretation of section 8A read with section 2(7)and section 15 of the Act, 1955, the word "appointed" is required to be interpreted to include also the person "elected". Only because the words "nominated" and "co-opted" are stated in along with the word "appointed" in section 8A of the Act,1955 the word "appointed" cannot have a restricted meaning excluding the person elected.

30. Reliance placed on behalf of the petitioner on section 16 pertaining to registered graduates, section 17 with regard to vacating of office, section 18 with regard to term of office of Ordinary Fellows and section 19 with regard to appointment of Fellows are required to be read in harmonious Page 60 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 and effective reading to attain the purpose of the statute as a whole and such provisions cannot be considered as contented by the petitioner to exclude "elected" Ordinary Fellow from the purview of section 8A of the Act, 1955. If the legislature is of the opinion that the elected persons above the age of 62 years are to be permitted to be members of the Fellow of Senate or members or Syndicate members then it would have made an exception, as the proviso is added to section 8A giving exemption to the chairman or a member of any of the authorities of the University, Committee or any other body thereof, who holds the Chairmanship or membership by virtue of his office as a Chancellor, Vice-Chancellor or as the case may be, the Pro-Vice Chancellor.

31. Moreover, section 8A of the Act, 1955 starts with a non-obstante clause which provides that notwithstanding anything contained in the Act,1955 Statutes, Ordinances, Regulations and Rules, no person shall be appointed, nominated or as the case may be, co-opted after he attains the age of 62 years on the post of officers referred to in clauses (iii), (iv) and (v) of section 8 which includes the DEANs of Faculties, the Registrar and such other officers in the service of the University as may be declared Page 61 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022 C/SCA/1546/2022 JUDGMENT DATED: 11/03/2022 by the statutes to be officers of the University and on the post of teacher or as a member of the authorities of the University, any committee or any other body thereof. Therefore, a member of the authority namely, Senate or Syndicate, would be hit by the upper age limit of 62 years, whether he is appointed, nominated or co-opted and therefore, an Ordinary Fellow who is to be elected as per the provisions of section 15 Part-II(A) who is appointed as such cannot claim the exemption from the age bar of 62 years.

32. For the foregoing reasons, the petitions being devoid of any merit are accordingly dismissed. The election held by the respondent-University therefore, stands as it was ordered to be subject to outcome of these petitions by order dated 4th February, 2022 so far as the grievances made by the petitioner in these petitions are concerned. Notice is discharged in the respective petitions.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 62 of 62 Downloaded on : Sat Dec 24 12:36:52 IST 2022