Radhika Agnihotri & vs Gujarat University & 3 on 24 February, 2015

[Cites 4, Cited by 0]

Gujarat High Court

Radhika Agnihotri & vs Gujarat University & 3 on 24 February, 2015

Equivalent citations: AIR 2015 (NOC) 912 (GUJ.)

1. The present petition is one another glaring example of arbitrary and misuse of the powers by Vice Chancellor of the Gujarat University. The manner in which Vice Chancellor of the Gujarat University has acted and that too as a head of the Educational Institution, his action and conduct is condemnable.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner s-students have prayed for appropriate Writ, direction or order to quash and set aside the action of the Gujarat University in rejecting their nomination forms for election to the Students Constituency of the Senate of the Gujarat University. The respective petitioners have prayed for the following reliefs:

"A. Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India quashing and setting aside the action of the Respondent University in rejecting their nomination form and be pleased to quash and set aside the notification dated 09/02/2015 issued by the Respondent University in so far as it does not include the name of the Petitioners against the name of the persons duly nominated for election to the students constituency of the Senate of the Gujarat University.

B. Issue an appropriate writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India declaring the petitioner s to be duly nominated for election in the Students Constituency of the Senate of the Gujarat University and be further pleased to declare the Page 2 of 19 C/SCA/2720/2015 JUDGMENT petitioner s as duly elected to the Students Constituency of the Senate of the Gujarat University."

3. The facts leading to the present Special Civil Application, in nutshell, are as under:

3.1 That pursuant to the election notification issued by Vice Chancellor of the Gujarat University dated 19-1-2015 declaring the election programme for the election of the members of Senate of the Gujarat University, the respective petitioners-students submitted their nominations for the Faculty of Medicine (UG+PG) and Faculty of Dentistry (UG+PG) Constituencies along with the necessary documents as required as per the aforesaid election programme/notification dated 19-1-2015. That when the University published the notification on 9-2-2015 declaring the list of candidates, it was mentioned with respect to the aforesaid two constituencies as "no candidate". Therefore, presuming that their nominations/candidatures have been rejected, the petitioner s have preferred the present Special Civil Application for the aforesaid reliefs. At this stage, it is required to be noted that as such, except the petitioners, nobody filed the nominations/candidatures for the aforesaid two Constituencies and therefore, if their nominations/candidatures would have been accepted, in that case, they were required to be declared as elected as uncontested.

4. Shri Puruhit, the learned advocate appearing for the petitioners has vehemently submitted that the impugned decision of the University in rejecting the nominations/candidatures of the petitioner s is absolutely illegal, arbitrary and against the principles of natural justice.

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C/SCA/2720/2015 JUDGMENT It is submitted that even the petitioners were not informed that their nominations/candidatures have been rejected, apart from the fact that even the petitioner s were not informed of the reasons for rejecting their nominations/candidatures. It is vehemently submitted that when the petitioners tried to get the reasons from the University for rejection of their nominations/candidatures if at all their nominations/candidatures have been rejected, neither the petitioners were informed that their nominations/candidatures have been rejected nor even any reasons were furnished to them. It is further submitted that even before rejecting nominations/candidatures of the petitioner s, no opportunity of being heard was given to the petitioner s by the University/Scrutiny Committee. It is submitted that only when the University published on the notice board the notification with respect to the list of eligible candidates, the petitioners came to know that their nominations/candidatures have been rejected. It is submitted that as such, even there was no any formal communication to the petitioners/candidates that their nominations/candidatures have been rejected. It is further submitted that even entire exercise by the Scrutiny Committee is behind the back of the petitioner. It is submitted that from the affidavit-in-reply, it appears that on the basis of some objection raised by one Vansh Shah, the Scrutiny Committee had taken the decision. However, the petitioner s were not given copy of any such objection, if any, submitted by said Vansh Shah. It is submitted that even nobody knows who is said Vansh Shah, who is alleged to have raised the objection against the nominations/candidatures of the petitioners. It is submitted that therefore the impugned decision of the University rejecting nominations/candidatures Page 4 of 19 C/SCA/2720/2015 JUDGMENT of the petitioner s is absolutely arbitrary, illegal and against the principles of natural justice and against fair play.

4.1 It is further submitted by Shri Purohit, the learned advocate appearing for the petitioner s, that even from the affidavit-in-reply filed by the University, it is crystal clear that the day on which the Scrutiny Committee took the decision rejecting nominations/candidatures of the petitioners on 6-2- 2015, as such, no reasons were assigned by the Scrutiny Committee at all. It is submitted that only after this Court issued notice in the present proceedings and even after the respondent appeared in the petition i.e. on 19-2-2015 and they asked for the time, Vice Chancellor of the Gujarat University asked the reasons from the Scrutiny Committee for rejecting nominations/candidatures of the petitioners. It is submitted that therefore the day on which the Scrutiny Committee rejected nominations/candidatures of the petitioner s, admittedly, there were no reasons assigned at all. It is further submitted by Shri Purohit, the learned advocate appearing for the petitioners, that even the conduct on the part of Vice Chancellor of the Gujarat University to call the reasons from the Scrutiny Committee after this Court issued notice in the present petition and after they appeared before this Court is required to be deprecated and cannot be approved.

4.2 It is further submitted by Shri Purohit, the learned advocate appearing for the petitioners, that even the reasons assigned by the Scrutiny Committee for rejecting nominations/candidatures of the petitioners so mentioned in the communication dated 21-2-2015 addressed to Vice Chancellor of the Gujarat University are not tenable. It is Page 5 of 19 C/SCA/2720/2015 JUDGMENT submitted that as such on the nomination forms and on the photograph affixed on the nomination papers, there was a seal of the College and signed by the Principal of the College with whom the petitioner s were enrolled. It is submitted that nominations/candidatures of the petitioners have been rejected on the ground that on the photographs of the petitioner s which were affixed on the nomination papers, though the stamp of the College was there, but the stamp of the Principal of the College was not there. It is submitted that as such the aforesaid is too technical and the aforesaid defect, if any, cannot be considered to be such a defect on which the nominations of the petitioners could have been rejected. It is submitted that the purpose and object for putting the seal of the College/Principal of the College on the photographs was only to confirm the identity of the petitioner s which can be confirmed from other supporting documents produced by the petitioners along with the nomination forms. It is submitted that the nomination forms of the petitioners and the declaration by the petitioners- candidates were along with the certificate of the Principal of the College with the seal of the Colleges and even a separate certificate signed by the Principal of the concerned College was also produced.

4.3 It is submitted that from the objection raised by one Vansh Shah dated 6-2-2015 which is placed on record along with the affidavit-in-reply filed by the University, the nominations/candidatures of the petitioners were objected on the ground that the petitioners were enrolled in their respective Colleges after 15-9-2014. It is submitted that as such, the petitioners were enrolled with the concerned Colleges after 1-5-2014 but admittedly before 15-9-2014. It is Page 6 of 19 C/SCA/2720/2015 JUDGMENT submitted that as such, the Scrutiny Committee/University had not rejected their nominations on the ground that respective petitioners were enrolled after 15-9-2014. It is submitted that therefore, even on merits also, the decision of the Scrutiny Committee/Vice Chancellor of the Gujarat University/University rejecting their nominations for the reasons mentioned in the communication dated 21-2-2015 is not tenable and cannot be sustained and the same deserves to be quashed and set aside.

4.4 Making the above submissions, it is requested to allow the present Special Civil Application and grant the reliefs as prayed for and quash and set aside the impugned decision of the University rejecting the nominations/candidatures of the petitioners and to direct the University to accept the nominations/candidatures of the petitioners for election in the Students Constituency of the Senate of the Gujarat University in so far as it relates to the respective seats in the Faculties of Medicine and Dentistry and as the petitioners were the only candidates who submitted the nominations for the candidates in the aforesaid Students Constituencies, to declare them as elected uncontested.

5. Shri S.N.Shelat, learned Senior Counsel has appeared with Mrs.V.D.Nanavati, learned advocate appearing on behalf of the respondent University. An affidavit-in-reply is filed on behalf of the University affirmed by Shri Mataprasad Devataprasad Pande, Assistant Registrar of the Gujarat University. At this stage, it is required to be noted that as such, it was the decision of the Scrutiny Committee/ Vice Chancellor of the University/University which is under challenge and therefore, the Assistant Page 7 of 19 C/SCA/2720/2015 JUDGMENT Registrar could not have filed the affidavit-in-reply opposing the present petition. He is not even authorized to file the reply on behalf of the University or Vice Chancellor of the University. Be that as it may, we have considered the affidavit-in-reply filed on behalf of the Gujarat University as if it is filed by the authorized person of the Gujarat University.

6. At the outset, it is required to be noted that Shri Shelat, the learned Senior Counsel appearing on behalf of the Gujarat University has conceded that the impugned decision of Scrutiny Committee/University rejecting the nominations/candidatures of the petitioners cannot be sustained as the same is in breach of the principles of natural justice and even no reasons were assigned by the Scrutiny Committee at the time when the Scrutiny Committee rejected the nominations/candidatures of the petitioners. He has also fairly conceded that as such, the grounds on which the nominations/candidatures of the petitioners were objected by Vansh Shah that the respective petitioners were enrolled after 15-9-2014 have no substance and on verification, it has been found that as such, the petitioners were enrolled after 1-5-2014 but before 15-9-2014 and therefore, as such, they meet with the eligibility criteria as mentioned in the notification dated 19-1-2015.



6.1               However, it is submitted that as at the time when
the             Scrutiny          Committee                rejected         the

nominations/candidatures of the petitioners on 6-2-2015, no reasons were stated/assigned by the Scrutiny Committee and therefore, to satisfy himself, he called the reasons from the Scrutiny Committee and subsequently vide communication dated 21-2-2015, the Scrutiny Committee has communicated Vice Chancellor of the Gujarat University the reasons for Page 8 of 19 C/SCA/2720/2015 JUDGMENT cancelling/rejecting the nominations/candidatures of the petitioners on 6-2-2015. It is submitted that as per the requirement, on the photograph of the candidates on the nomination forms, the seal/stamp of the Principal of the College was required to be affixed and on scrutiny of the nominations, it was found that on the photograph of the petitioners/candidates, there was no seal/stamp of the Principal of the College affixed and therefore, the requirements in the nomination forms and the declaration were not satisfied and therefore, the Scrutiny Committee took the decision to cancel the nominations of the petitioners. However, at the same time, he has fairly conceded that the impugned decision of the Scrutiny Committee/University rejecting the nominations/candidatures of the petitioners cannot be sustained as the same is in breach of the principles of natural justice and that no reasons were assigned by the Scrutiny Committee at the time of cancelling the nominations/candidatures of the petitioners.

6.2 On the objection raised by Shri Purohit, the learned advocate appearing for the petitioner s, on the Vice Chancellor of the Gujarat University asking reasons from the Scrutiny Committee subsequently and after the University appeared through their counsel in the present petition and sought adjournment, Shri Shelat, learned Senior Counsel appearing on behalf of the University has stated that only with a view to know the reasons from the Scrutiny Committee and so as to satisfy himself with respect to the reasons for rejecting the nominations/candidatures of the petitioners and as at the time of rejecting the nominations/candidatures of the petitioners on 6-2-2015, the Page 9 of 19 C/SCA/2720/2015 JUDGMENT Scrutiny Committee did not assign any reasons, he bonafidely and without in any manner disrespect to the Court called the reasons from the Scrutiny Committee.

6.3 Making the above submissions, he has requested to pass appropriate order in the facts and circumstances of the case. No other submissions have been made.

7. Heard learned advocates appearing for the respective parties at length.

8. At the outset, it is required to be noted that what is challenged in the present Special Civil Application is the decision of Vice Chancellor of the Gujarat University/University rejecting the nominations/candidatures of the petitioners for election in the Students Constituency of the Senate of the Gujarat University to the respective seats in the Faculty of Medicine and Faculty of Dentistry. It is an admitted position that the decision to reject the nominations/candidatures of the petitioners is behind the back of the petitioners which is absolutely in breach of the principles of natural justice. It is also an admitted position that even the petitioners, who submitted nominations/candidatures, were as such not even informed/communicated the rejection of their nominations/candidatures. Only when a notification was published on the notice board of the University publishing the list of eligible candidates on 9-2-2015 mentioning therein with respect to the Faculty of Medicine (UG+PG) and Faculty of Dentistry (UG+PG) Constituencies as "no candidate", the petitioners came to know that their nominations/candidatures have been rejected. The aforesaid is against the principle of fair play. At this stage, it is Page 10 of 19 C/SCA/2720/2015 JUDGMENT required to be noted that though the respective petitioners vide communications dated 6-2-2015 requested Vice Chancellor to inform them whether their nominations/candidatures have been rejected or not and if rejected, on what grounds/reasons, neither there was any communication from Vice Chancellor of the Gujarat University informing them that their nominations/candidatures have been rejected nor even any reasons were furnished to the petitioners. At this stage, it is required to be noted that and it is an admitted position that as such, the day on which the Scrutiny Committee nominated by Vice Chancellor of the Gujarat University rejected the nominations/candidatures of the petitioners i.e. on 6-2-2015, no reasons at all were assigned and except the word 'invalid' on nominations, no reasons were assigned and which are assigned subsequently on 21-2-2015 at the instance of Vice Chancellor of the Gujarat University and that too after the University was served with the notice of the present petition and they appeared before the Court and asked for the adjournment. A candidate, who has submitted nomination/candidature is first of all supposed to know whether his/her nomination/candidature has been accepted/rejected or not and if it is rejected, the reasons for which his/her nomination/candidature is rejected. The aforesaid is required so that if at all a candidate wants to challenge such a decision of rejection of nomination may challenge it before the authority as provided in the Gujarat University Act or before the appropriate Court/Forum. The procedure which is adopted by the University in the present case not to inform/communicate the concerned candidate about the rejection of his candidature and as and when the list of eligible candidate is published and when the name of the concerned candidate is not mentioned in the list of Page 11 of 19 C/SCA/2720/2015 JUDGMENT eligible candidates, it is to be presumed that his/her nomination/candidature has been rejected, is against the principles of fair play and even against the principles of natural justice.

8.1 Even the concerned candidate is required to be communicated the reasons for rejecting his/her nomination/candidature so that ultimately if the concerned candidate whose nomination is rejected is aggrieved, it can be challenged before the appropriate Court/Forum. At least the candidate is supposed to know the reasons on which his/her nomination/candidature has been rejected. That is a bare minimum requirement of the principles of natural justice and fair play.

8.2 As observed by the Hon'ble Supreme Court in the case of Prakash Ratan Sinha Vs. State of Bihar and others reported in (2009)14 Supreme Court Cases 690, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and rule of natural justice operates in areas not covered by any law validly made. It is further observed in the said decision that whenever an action of public body results in civil consequences for the person against whom the action is directed, duty to act fairly can be presumed and in such a case, administrative authority must give a proper opportunity of hearing to the affected person. In the aforesaid decision, the Hon'ble Supreme Court noted its earlier decision in the case of Canara Bank and Others Vs. Debasis Das and Others reported in (2003)4 Supreme Court Cases 557 wherein vide paragraph 15, the Hon'ble Supreme Court observed that the adherence to principles of natural justice as recognized by all civilized Page 12 of 19 C/SCA/2720/2015 JUDGMENT States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties or any administrative action involving civil consequences is in issue. In the present case, it cannot be disputed that rejection of nominations/candidatures of the petitioners would entail a consequence of affecting the rights of the petitioners to contest the election. Therefore, before rejecting nominations/candidatures, the petitioners were required to be given the opportunity and even they were required to know the reasons for rejection of their nominations/candidatures.

8.3 Even a candidate is required to be served with the objection, if any, from any objector against nomination/candidature of the particular candidate and an opportunity of hearing is required to be given by the Scrutiny Committee nominated by Vice Chancellor and/or Vice Chancellor so that the concerned candidate can meet with such an objection on the basis on which his/her nomination/candidature is sought to be rejected. It is a cardinal principle of law and the principle of natural justice that nobody can be condemned unheard. In the present case, as observed hereinabove, the action of respondent University in rejecting the nominations of the petitioners is absolutely against the fair play, in violation of principles of natural justice and most arbitrary, which cannot be sustained. Even we do not approve the conduct on the part of Vice Chancellor of the Gujarat University in calling the reasons subsequently from the Scrutiny Committee and that too after they were served with the notice of the present petition and they asked for the time in the present petition. However, considering the submissions made by Shri Shelat, learned Senior Counsel appearing on behalf of the University that Vice Chancellor Page 13 of 19 C/SCA/2720/2015 JUDGMENT acted bonafidely and as the Scrutiny Committee did not assign any reasons for rejecting the nominations/candidatures of the petitioners on 6-2-2015 and therefore, so as to satisfy himself with respect to the reasons for cancelling/rejection of the nomination of the petitioners, he called for the reasons from the Scrutiny Committee, we rest the matter there.

9. From the affidavit-in-reply, it appears that the Scrutiny Committee nominated by the Vice Chancellor of the Gujarat University rejected the nominations/candidatures of the petitioners on the objection raised by one Shri Vansh Shah on 6-2-2015. However, admittedly, no such objection had been served upon the petitioners. When we asked the learned Senior Counsel appearing for the University the particulars with respect to said Vansh Shah, who is alleged to have submitted objection on 6-2-2015 and his identity, the learned Senior Counsel appearing for the University has failed to satisfy the Court on the aforesaid. Be that as it may, when the Scrutiny Committee rejected nominations/candidatures of the petitioners, on the basis of objection raised by said Vansh Shah, in that case also, as the said objection was not served upon the petitioners and the petitioners were not given opportunity to meet with the objections raised in the said petition, the decision of rejection of nominations/candidatures of the petitioners on such objection can be said to be in violation of principles of natural justice, which cannot be sustained on that ground also.

10. From the affidavit-in-reply filed on behalf of the University, it is an admitted position that at the time when the Scrutiny Committee nominated by Vice Chancellor of the University took the decision to reject the Page 14 of 19 C/SCA/2720/2015 JUDGMENT nominations/candidatures of the petitioners on 6-2-2015, no reasons were assigned. As per the the affidavit-in-reply, the Scrutiny Committee had assigned the reasons only on 21-2- 2015 and that too at the instance of Vice Chancellor and even after the University was served with the notice of the present petition and after they appeared in the present proceedings and sought an adjournment. As per the cardinal principle of law, what is required to be considered is the reasons assigned, if any, at the time of taking the decision and assigning subsequent reasons cannot cure the defect and/or make the decision valid/legal and therefore, assigning the reasons subsequent to the decision cannot be considered at all.

11. Even considering the reasons assigned by the Scrutiny Committee vide communication dated 21-2-2015, the reasons on which nominations/candidatures of the petitioners have been rejected cannot be sustained. From the communication dated 21-2-2015 addressed by the Scrutiny Committee to Vice Chancellor, it appears that nominations/candidatures of the petitioners were rejected mainly on the ground that photographs affixed on the nomination papers do not bear the stamp of the Principal of the College/Institution with which the petitioners are enrolled. However, it is required to be noted and it is not in dispute that on the photographs affixed on the nomination forms, the stamp of the concerned College with whom the petitioners are enrolled is affixed with the signatures of concerned Principals. Even in the nomination forms, certificate by the Principal of the concerned College with the seal of the College was attached certifying that the concerned candidates have joined their College on or before the date specified for the purpose. Along with the Page 15 of 19 C/SCA/2720/2015 JUDGMENT nomination forms, the certificate duly signed by the concerned Principal of the concerned Institutes certifying that the concerned petitioners are bona fide students of their Colleges and that they are studying in their respective Departments since 1-5-2014 in the current academic year 2014-2015 i.e. before 15-9-2014. Therefore, to reject the nomination forms on the grounds/reasons mentioned in the communication dated 21-2-2015 can be said to be too technical and/or such a defect, as such, cannot be said to be fatal defect for which the nominations/candidatures of the petitioners could have been rejected. As observed hereinabove, as such, on the photographs of the respective candidates affixed on the nomination forms, stamp of the concerned College with the signatures of the respective Principals of the concerned Colleges with whom the respective petitioners were enrolled was affixed. Under the circumstances, as such, the respective petitioners complied with and/or fulfilled all the requirements to become the eligible candidates. At this stage, it is required to be noted that in the objection raised by Vansh Shah on 6-2-2015, nominations/candidatures of the petitioners were sought to be rejected on the ground that the respective petitioners were enrolled after 15-9-2014. However, it is required to be noted that on the aforesaid ground, nominations/candidatures of the petitioners are not rejected. Even Shri Shelat, learned Senior Counsel appearing for the University, has fairly conceded that as such both the petitioners did fulfill the criteria and in fact, both of them were enrolled with their concerned Colleges prior to 15-9- 2014.

Under the circumstances, even on merits also, the decision of Scrutiny Committee nominated by the Page 16 of 19 C/SCA/2720/2015 JUDGMENT Vice Chancellor of the University/University rejecting the nominations/candidatures of the petitioners cannot be sustained and the same deserves to be quashed and set aside.

12. Now the next question which is posed for our consideration is what relief the petitioners are entitled to. As observed hereinabove, the decision of Scrutiny Committee nominated by the Vice Chancellor of the University/University rejecting nominations/candidatures of the petitioners is absolutely illegal, arbitrary, against the principles of natural justice, against the fair play and even on merits also, the same cannot be sustained. It is also found that nominations/candidatures of the petitioners were valid and they are wrongly rejected by Scrutiny Committee nominated by the Vice Chancellor of the University/University and therefore, nominations/candidatures of the petitioners for election of the members of the Senate of the Gujarat University in the aforesaid Faculty of Medicine and Faculty of Dentistry were required to be accepted. It is an admitted position that except the petitioners, nobody submitted any nominations/candidatures for election of the members of the Senate of the Gujarat University in the aforesaid Faculty of Medicine and Faculty of Dentistry. The petitioners were the only candidates who submitted their nominations/candidatures. Under the circumstances, they were required to be declared elected as uncontested. If the nominations/candidatures of the petitioners were not rejected, in that case, the respective petitioners ought to have been and/or would have been declared as elected uncontested. Under the circumstances, when it is held that Page 17 of 19 C/SCA/2720/2015 JUDGMENT the nominations/candidatures of the petitioners were wrongly rejected and as such, their nominations/candidatures were valid and both the petitioners fulfill all the requisite requirements, the consequences must follow and that a Writ is required to be issued while quashing and setting aside the impugned decision of the University cancelling nominations/candidatures of the petitioners, directing the respondent University to accept the nominations/candidatures of the petitioners for election of the members of the Senate of the Gujarat University in the aforesaid Faculty of Medicine and Faculty of Dentistry and consequently to declare them as elected as uncontested as it is an admitted position that except the petitioners, nobody filed any nominations/candidatures with respect to aforesaid two constituencies.

13. In view of the above and for the reasons stated above, the present petition succeeds. The impugned decision of the respondent University rejecting nominations/candidatures of the petitioners for election to the members of the Senate of the Gujarat University in the aforesaid Faculty of Medicine and Faculty of Dentistry is hereby quashed and set aside. For the reasons stated hereinabove and consequently, the respondent University is directed to accept the nominations/candidatures of the petitioners for the aforesaid election by treating their nominations/candidatures as valid and consequently, the respondent University is hereby directed to declare the petitioners herein as elected as uncontested with respect to the posts/seats for which they submitted their nominations/candidatures i.e. for election to the Students Constituency of the Senate of the Gujarat University with respect to Faculty of Medicine and Faculty of Dentistry. Rule Page 18 of 19 C/SCA/2720/2015 JUDGMENT is made absolute accordingly with exemplary costs which is quantified at Rs.1000/- (Rupees One Thousand only) being token cost which shall be born by Vice Chancellor of the Gujarat University himself and to be deposited with the Registry of this Court within a period of two weeks from today and on such deposit, the same shall be transmitted to the Gujarat High Court Legal Services committee.

(M.R.SHAH, J.) (G.B.SHAH, J.) RADHAN Page 19 of 19

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