Patna High Court
Dr. Vinod Pd. Singh And Anr. vs Chancellor Of The University And Ors. on 26 August, 2004
Equivalent citations: AIR2005PAT12, AIR 2005 PATNA 12, (2004) 3 BLJ 92 (2004) 4 PAT LJR 302, (2004) 4 PAT LJR 302
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
ORDER Chandramauli Kr. Prasad, J.
1. Initially; the prayer of the petitioners in this writ application was to quash the communication dated 29-9-2003 (Annexure 4) whereby the Chancellor of the Universities had directed the Vice-Chancellor of the Bhim Rao Ambedkar Bihar University to withhold the declaration of the result of election to the Syndicate to be held in the meeting of the Senate on 25-9-2003. By way of amendment the prayer of the petitioners is to quash the order dated 8-112003 whereby the Chancellor had issued direction to the Vice-Chancellor of Bhim Rao Ambedkar Bihar University to announce the result of the election of the members of the Syndicate by excluding the votes of Dean of Students Welfare and Proctor.
2. Shorn of unnecessary details facts giving rise to the present application are that the petitioners are teachers In the Department of Zoology in Bhim Rao Ambedkar Bihar University (hereinafter referred to as the University). A communique dated 5-9-2003 (Annexure 1) was issued by the Registrar of the University notifying the programme for election by the Senate to the Syndicate of the University under Section 22 of the Bihar State Universities Act. Said programme indicated the last date for receiving nomination, date and hour of scrutiny of nomination papers, date of withdrawal and the date of election. The last date for receiving nomination for election to the Syndicate was 16-9-2003 but in between the date of communique and the last date for receiving nomination, the Registrar of the University published list of the teacher-members of the Senate as on 9-9-2003 which included the Dean of Students Welfare and Proctor of the University. It seems that one Dr. Padmasa Jha filed application before the Chancellor of the University aggrieved by exclusion of her name in voters list in election to the Syndicate by the Senate in its meeting scheduled to be held on 25-9-2003. The Chancellor by the interim order directed to withhold the declaration of the result of election to the Syndicate in the meeting of the Senate scheduled to be held on 25-9-2003 and accordingly by impugned communication dated 24-9-2003 (Annexure 4) the Chancellor's Secretariat communicated the order of the Chancellor to the Vice-Chancellor. It is the stand of the petitioner that in view of the aforesaid direction of the Chancellor, in fact, votes were counted and the result of the election was declared. However, it is not in dispute that the result has not been formally announced.
3. Thereafter the matter was heard by the Chancellor and by the impugned order dated 8-11-2003 it held that the Dean of Students' Welfare and Proctor do not come within the expression teachers and therefore, not entitled to be regarded as teachers for the purpose of voting in the meeting of the Senate for election to the Syndicate. Accordingly, the Chancellor directed to announce the result of election of the members of the Syndicate under Section 22(h) of the Bihar State Universities Act (for short the Act) by excluding the votes of Dean of Students' Welfare and Proctor.
4. In answer thereto the Registrar of the University wrote to the Chancellor that it is not feasible to identify the ballot papers of the Dean of Students Welfare and Proctor and hence the direction of the Chancellor to declare the result by excluding the votes of Dean of Students Welfare and Proctor does not seem feasible. In the said letter it has been observed as follows :-
"That to comply the aforesaid direction, a threadbare discussion was held with the Staff and Officials involved in the election process and it has been arrived at that since the ballot papers bear neither the serial number as on their counter foils nor any other mark required for identification, it is not feasible to identify the ballot paper of any voter and, in the circumstances, result of elections to the Syndicate under Section 22(h) of the Act by excluding the votes of Dean of Students' Welfare and Proctor cannot be declared."
5. Mr. Bipin Bihar Singh appears on behalf of the petitioners whereas the Chancellor is represented by Mr. R. B. Mahto, Senior Advocate. Mr. Jay Nandan Prasad Singh appears on behalf of the University.
6. Main thrust of the argument of Mr. Singh appearing on behalf of the petitioners is that once the election process had commenced the Chancellor ought not to have interfered with the same, first by directing to withhold the result and then to declare the result by excluding the votes of the Dean of Students Welfare and the Proctor of the University. He points out that the Vice-Chancellor ought to have waited for the result of the election and relegated to the aggrieved person to the remedy of representation to the Vice-Chancellor as contemplated under Article (xlii) of Chapter III of the Statute of the University, which reads as follows :-
"(xiii) In the event of any dispute with regard to any election the aggrieved person have the right to submit a representation to the Vice-Chancellor detaining all relevant facts and points of dispute for consideration."
7. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Gujarat University v. N.U. Rajguru (AIR 1988 SC 66) and my attention has been drawn to paragraph 6 of the judgment, which reads as follows :-
"6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to Justify by-passing the alternative remedies. In the instant case, there existed no circumstance justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court."
8. Mr. Ram Balak Mahto, Senior Advocate appearing on behalf of the Chancellor, however, contends that the Chancellor is the head of the University and when it comes to his knowledge that the persons who are not teachers, have been included as voters for election to the Syndicate as teachers, nothing prevents him from interfering even if the process of election has already commenced. He further points out that Section 63 of the Bihar State Universities Act, hereinafter referred to as the Act, confers power on the Chancellor to adjudicate the dispute in regard to the constitution of the Syndicate and the Academic Council. Mr. Mahto further points out that the provision of the statute shall be subject to the provision of the Act which would be evident from Section 34 of the Act. In any view of the matter, Chapter III of the Statute, according to Mr. Mahto, deals with the constitution of Senate whereas in the present case, what is under challenge is the filling of the vacancy in the Syndicate and for that. Chapter IV of the Statute shall be relevant, which has not provided for any remedy.
9. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. It is relevant here to state that the Registrar of the University issued communique dated 5-9-2003 notifying the programme for election by the Senate to the Syndicate according to which the last date for receiving nomination for election to the Syndicate was 16-9-2003. But between the date of communique and the last date for receiving the nomination, the Registrar of the University published the list of the teacher members of the Senate on 99-2003 which included the Dean of the Students' Welfare and the Proctor of the University. It is not known as to whether any provisional list of voters was published and any opportunity was given to make a request either for exclusion or inclusion of the name in the voter list. In such a situation, when one Dr. Padmasha Jha filed application before the Chancellor aggrieved by exclusion of her name from the voter list, it came to the notice of the Chancellor that two persons, i.e. the Dean of the Students' Welfare and the Proctor who ought not to have been included as voters, have been included and accordingly, first directed for withholding the declaration of the result and later on, directed for declaration of the result after excluding the votes of the aforesaid two persons.
10. It is relevant here to state that Section 63 of the Act confers power on the Chancellor to adjudicate the dispute in regard to the election to the Syndicate and as such, it cannot be said that the Chancellor exceeded in its jurisdiction while passing the impugned order. In my opinion, reliance of the petitioner to Chapter III of the Statute, is absolutely irrelevant as the said Chapter deals with the constitution of Senate and not the Syndicate whereas in the present case, I am concerned with the filling of the vacancy in the Syndicate and for that, Chapter IV of the Statute applies. Not only this, the provision of the statute shall always be subject to the Statute and it is made clear by Section 34 of the Act. For all these reasons, I am not inclined to quash the orders impugned on the ground urged by the petitioner that the Chancellor has interfered with the process of the election.
11. Main thrust of the petitioner's submission related to the act of the Chancellor in interfering with the process of election but that having failed. Mr. Singh very faintly submits that the view taken by the Chancellor that the Dean of the Students' Welfare and the Proctor ought not to have been included in the list of voters, is erroneous in law. Mr. Mahto, however, submits that the Dean of the Students' Welfare and the Proctor being not teachers, their inclusion in the voter list for election to the Syndicate were absolutely illegal and the Chancellor rightly found their inclusion to be so.
12. Having considered the rival submission, I do not find any substance in the submission of Mr. Singh. Section 22 of the Act, inter alia, provides for constitution of the Syndicate and in the present case, I am concerned with the filling of the vacancy of the Syndicate under Section 22(1)(h) of the Act which reads as follows :-
"22(1)(h). Two from amongst Professors and Readers of the University other than the University Heads of Departments and two such Lecturers as have a minimum of five years of teaching experience, to be elected by the teacher members of the Senate by single transferable vote in accordance with the system of proportionate representation, one of whom shall be from other Backward Classes from the rank of Professors and Readers, and one from Scheduled Castes/ Scheduled Tribes from the rank of Lecturers."
(Underlining mine)
13. The aforesaid provision contemplates election of two from amongst Professors and Readers of the University other than University Heads of Departments and two such lecturers having a minimum of five years of teaching experience by the teacher members of the Senate. It is relevant here to state that the Dean of the Students Welfare and the Proctor have been included as voters as the teacher members and, therefore, the question is as to whether such persons are teachers and members of the Senate in that capacity. In my opinion, from the language used in Section 22(1)(h) of the Act, i.e. "teacher members of the Senate" shall have to read to mean that only such members of the Senate who are teachers can be voter for election of the members to the Syndicate under Section 22(1)(h) of the Act. In my opinion before one qualifies to be voter, he has to satisfy twin test, that is, he has to first satisfy that he is a member of Senate and thereafter teacher. The word 'teacher' has been defined under Section 2(v), same reads as follows :
"2(v). 'Teacher" includes Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other person imparting instruction in department, college or institute maintained by the University."
14. The definition of the "teacher" referred to above, does not include the Dean of the Students Welfare and Proctor and although it is inclusive definition but it will embrace within itself the Principal of the University Professor, College Professor, Reader, Lecturer and Demonstrator and such persons imparting instruction in any department, college or institute maintained by the University. It is nobody's case that the Dean of the Students Welfare and the Proctor are imparting instruction in any department, college, or institute maintained by the University. The appointment of the Dean of the Students Welfare and the Proctor have been provided under Sections 14 and 14A of the Act, same read as follows :-
"14.-The Dean of Students Welfare.-
(1) The Dean of Students' Welfare shall be appointed by the Vice-Chancellor for a period of two years from amongst the University Professors, Readers or Principals:
Provided that if the Vice-Chancellor thinks it necessary for administrative reasons he may revert the Dean to his original post and appoint another person as Dean for the unexpired period.
(2) The duties, powers and functions of the Dean of Students' Welfare shall be prescribed by the Statutes.
(3) The teacher appointed as the Dean, Students' Welfare under Sub-section (1) shall hold lien on his original post, and he shall be legible for all the benefits which would have otherwise accrued to him, in case he would not have been appointed as Dean, Students' Welfare.
14A. Proctor.-
(1) The Vice-Chancellor shall appoint 'Proctor' from amongst such teachers of the University as are not below the rank of Reader.
(2) His tenure shall be of two years and on the expiry of his tenure, he may again be appointed:
(3) In case of vacancy of the Proctor caused due to resignation or illness or any other reason his duties shall be discharged by person appointed for the purpose by the Vice-Chancellor."
15. From a plain reading of the aforesaid provision, it is evident that the power to appoint the Dean of the Students' Welfare and the Proctor is vested in the Vice-Chancellor and in the case of Dean of the Students' Welfare, the appointee has to be necessarily a University Professor or Reader or Principal whereas in the case of Proctor, a teacher of the University not below the rank of Reader. Therefore, there is no doubt that only teachers are eligible to become the Dean of the Students' Welfare and the Proctor but can it be said that on account thereof, they are to be treated as teachers for the purpose of being voters under Section 22(1)(h) of the Act. In my opinion to qualify as teacher member of the Senate, the status of the member of the Senate should be of teacher at that point of time and not anterior to that. It has to be borne in mind that duty, power and power of the Dean of Students' Welfare is to be prescribed by the Statute, which would be evident from Section 14(2) of the Act but no statute has been brought to my notice to show that Dean of the Students Welfare imparts instruction. Same is the case with Proctor.
16. Dean of the Students' Welfare and the Proctor are officers of the University and they are appointed for a fixed term and although they continue to have the lien to the post from which they are appointed but for the period they hold the office of the Dean of the Students' Welfare and the Proctor, they cannot be regarded as teachers.
17. For the reasons stated above, I have no manner of doubt that Dean of the Students' Welfare and the Proctor are not the members of the Senate as teachers and, therefore, could not have been included as voters for election to the Syndicate under Section 22(1)(h) of the Act. In my opinion, the view taken by the Chancellor is in conformity with the law.
18. Mr. Singh lastly submits that the order of the Chancellor to declare the result excluding the votes of the Dean of the Students' Welfare and the Proctor is not possible to be given effect to, as those votes cannot be identified. It is relevant here to state that the Registrar of the University had sought guidance from the Chancellor in this regard. The Chancellor is yet to take decision on this. In that view of the matter, I am not inclined to interfere with the orders impugned on the ground urged by the petitioner. Needless to state that the Chancellor shall take decision on this issue but before he takes any decision, interference by this Court at this stage, is not called for.
19. In the result, I do not find any merit in this application and it is dismissed accordingly but without any order as to cost.