Gujarat High Court
Apurva Chandravadan Pathak vs Sardar Patel University & 4 on 13 March, 2015
Bench: M.R. Shah, G.B.Shah
C/SCA/3577/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3577 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE G.B.SHAH sd/
=============================================
1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
============================================= APURVA CHANDRAVADAN PATHAK....Petitioner(s) Versus SARDAR PATEL UNIVERSITY & 4....Respondent(s) ============================================= Appearance:
MR. D.C. DAVE, LD. SR. ADV WITH MR HARSHADRAY A DAVE, ADVOCATE for the Petitioner(s) No. 1 MR. SHALIN MEHTA, LD. SR. ADV WITH MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 1 2 MR VINOD M GAMARA, ADVOCATE for the Respondent(s) No. 1 2 SHRI I.H. SYED WITH MR VISHAL K SEVAK, ADVOCATE for the Respondent(s) No. 3 5 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE G.B.SHAH Date : 13/03/2015 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Rule. Shri Hemang Shah, learned advocate waives service of notice of Rule on behalf of respondent nos. 1 and 2 and Shri Vishal K Sevak, learned advocate waives service of notice of Rule on behalf of the Page 1 of 26 C/SCA/3577/2015 CAV JUDGMENT respondent nos. 3 to 5. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.
2.0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order directing respondent nos. 1 and 2 - Registrar and Vice Chancellor of Sardar Patel University (hereinafter referred to as the "University") to amend the electoral roll by deleting names of respondent nos. 3 to 5 from the electoral roll for the bye election of ordinary fellow to the Senate of law faculty. As after filing the present petition, respondent no.2 Vice Chancellor of the University has decided the objections raised by the petitioner against the inclusion of the names of respondent nos. 3 and 4 in the electoral roll of ordinary fellow to the Senate of faculty of law and has rejected the same by communication dated 27.2.2015, the petitioner has also prayed for an appropriate writ, direction and order to quash and setting aside the said decision.
3.0. The facts leading to the present petition in nutshell are as under:
3.1. The petitioner is incharge Principal, Anand Law College. That the respondent no.1 Registrar of University by letter dated 12.1.2015 declared his intention to hold byeelection of ordinary fellow to the Senate for teachers of the Arts faculty to be held on 3.3.2015 and informed the respective colleges (Arts colleges) to send names of teachers of the said faculty one from each college for preparation of the electoral roll. It appears that even the seat of faculty of law in the Senate had fallen vacant as far as back on 14.6.2014 upon superannuation of its member Shri Punjabhai Manibhai Patel and despite the above, bye Page 2 of 26 C/SCA/3577/2015 CAV JUDGMENT election for teachers of the faculty of law of the Senate was not declared and only byeelection was declared for teachers of Arts Faculty of the Senate, the petitioner drew attention of the respondent university for the vacancy of the seat of the Faculty of Law and requested to declare the byeelection for ordinary fellow as per Section 15 II(A)(i) of the Sardar Patel University Act (hereinafter referred to as the "Act"), vide its letter dated 23.1.2015. However, despite the above, byeelection for teaching member of the Faculty of Law was not declared. The University continued with the process of byeelection for the teaching member of the Faculty of Arts. That initially, the names of respondent nos. 3 and 4 were included in the electoral roll of the faculty of arts. However, subsequently the university declared byeelection for the teaching member of the Faculty of Law on dated 31.1.2015 and called upon Principal of Affiliated Colleges (in the Faculty of Law) sending particulars with respect to the names of the concerned persons for including their names in the electoral roll of constituency of Faculty of Law. It appears that thereafter university issued a notification dated 7.2.2015 declaring the programme for byeelection for the teaching member of the faculty of Arts and Law and pursuant to which, nominations were to be received by the university on or before 3.00 p.m. on 18.2.2015 and the scrutiny of the said nomination was required to be done on 18.2.2015, which shall commence at 3.30 p.m. 3.2. It appears that the Registrar prepared and declared the electoral roll of the constituency of the Faculty of Law somewhere on 7.2.2015, in which, names of the respondent nos. 3 and 4 were also included in the electoral roll of the constituency of Faculty of Law. It appears that the petitioner in his capacity as incharge Principal of Anand Laws College raised the objections vide letter dated 14.2.2015 raising objection against inclusion of the names of the respondent nos. 3 Page 3 of 26 C/SCA/3577/2015 CAV JUDGMENT and 4 in the electoral roll of constituency of Faculty of Law. The said objections were sent through Email to the respondent no.2 on 14.2.2015. That as there was no response to the objection raised by the petitioner, the petitioner once again reminded to the respondent no.2 Vice Chancellor vide its letter dated 18.2.2015 and requested to consider the objections before finalizing the electoral roll. That thereafter, the respondent no.2 Vice Chancellor - University has issued the notification dated 21.2.2015 including the names of the respondent nos. 3 and 4 in the electoral roll of constituency of Faculty of Law. That a corrigendum came to be issued by the university / Vice Chancellor of the University dated 23.2.2015 by including the name of respondent no.5 in the list of electoral roll. That feeling aggrieved and dissatisfied with the action of the respondent nos. 1 and 2 in including names of the respondent nos. 3 to 5 in the electoral roll of constituency of Faculty of Law, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India on 27.2.2015. That looking to the urgency, the petitioner was permitted to move the Court for hearing on Sunday i.e. on 1.3.2015. That the petitioner also served the advance copy of the petition upon the respondent nos. 1 and 2 , so that if they chose, they may appear before the Court. However, though advance copy was received by the respondent no.2 Vice Chancellor, nobody appeared on behalf of the University and / or even on behalf of respondent no.1 and 2 on 1.3.2015. It appears that having came to know about the filing of the petition and one of the grievance was that the objection raised by the petitioner dated 14.2.2015 and 18.2.2015 have not been decided by the Vice Chancellor and the allegation of mala fides are made in the petition, respondent no.2 Vice Chancellor immediately rejected the objections raised by the petitioner vide communication dated 27.2.2015 the copy of which came to be served upon the petitioner on 28.2.2015.
Hence, petitioner has preferred the present Special Civil Application for Page 4 of 26 C/SCA/3577/2015 CAV JUDGMENT the aforesaid reliefs.
4.0. Shri D.C. Dave, learned counsel for the petitioner has vehemently submitted that the action of the respondent nos. 1 and 2 in including the names of the petitioner nos. 3 to 5 in the electoral roll of constituency of Faculty of Law is absolutely illegal and contrary to the provision of Statute, more particularly, Statute 120.
4.1. It is vehemently submitted by Shri Dave, learned counsel for the petitioner that byeelection is for the teachers constituency of Faculty of Law and none of the respondent nos. 3 to 5 were / are teachers in any of the law colleges affiliated with the university and / or teaching any of the subjects of Faculty of Law. It is submitted that as such the respondent nos. 3 to 5 are teachers / professors / teaching in the Arts Faculty. It is submitted that none of the respondent nos. 3 to 5 were/ are teaching in subject of Faculty of Law. It is submitted that person who wants to be the voter in the electoral roll for a particular Faculty, he has to be a teacher in that particular constituency. It is submitted that in the present case byeelection is / was for the fellow member for Senate for Faculty of Law and therefore, constituency is a Faculty of Law and therefore, only those persons who are teachers in the Faculty of Law and teaching the subject/s of faculty of law are entitled to be included in the electoral roll of the Constituency of Faculty of Law. 4.2. It is submitted that as per Section 15 the Senate shall consists of exofficio Fellows and ordinary fellows. It is submitted that as per Section 15 II(A)(i), the Senate shall consist of ordinary fellow by electing one teacher from each of the faculty elected by the teachers on the subject comprise under that faculty. It is further submitted that Section 24 provides for the faculties. It is submitted that in addition to the faculties specified in Section 24 of the Act, there are other faculties Page 5 of 26 C/SCA/3577/2015 CAV JUDGMENT declared / specified under Section 71 including the faculty of law. It is submitted that each faculty shall comprise the subject mentioned in Section 71(b) and the Faculty of Law shall comprise the (1) Constitutional Law; (2) Jurisprudence; (3) Law (4) Taxation and Labour Laws. It is submitted that faculty of Arts shall comprise following subjects i.e. (1) English (2) Gujarati (3) Hindi (4) Sanskrit, Pali, Prakrit (5) Other Modern Languages (6) Economics (7) Geography (8) History, Ancient Indian Culture and Archeology (9) Logic and Philosophy (10) Mathematics (11) Political Science including Constitutional History, Local Self Government and Public Administration (12)Psychology (13) Sociology (14) Statistics (15) Cooperation (16) Fine Arts (17) Library Science. It is submitted that therefore, the voter for the constituency of Faculty of Law has to be a teacher of the subjects comprise under the Faculty of Law i.e. in the subjects of 1 to 4 (1) Constitutional Law; (2) Jurisprudence; (3) Law (4) Taxation and Labour Laws. It is submitted that therefore, the names of the respondent no. 3 to 5 are wrongly included in the electoral roll of constituency of Faculty of Law.
4.3. It is further submitted by Shri Dave, learned advocate for the petitioner that the objection raised by the petitioner against the inclusion of the names of the respondent nos. 3 and 4 in the electoral roll of constituency of Faculty of Law has been rejected by the Vice Chancellor vide communication dated 27.2.2015, which has been served upon the petitioner only on 28.2.2015 i.e. belatedly, only with a view of favour respondent nos. 3 and 4 and even the same is on mis interpretation and misapplying the Statute 120. It is submitted that in the present case Statute 120, upon which reliance has been placed by the Vice Chancellor of the University shall not be applicable at all. It is submitted that as such Statute 120 would be applicable only in a case where a person is entitled to have his name entered on more than one Page 6 of 26 C/SCA/3577/2015 CAV JUDGMENT roll of voters in respect of constituency of teachers under Section 15 II(A)(i) and (ii) either because he / she holds qualifications in a subject or subjects falling under more than one faculty. It is submitted that the in the present case none of the subjects of the Faculty of Law would fall under the Faculty of Arts and / or any other Faculties. It is submitted that therefore, Statute 120 shall not be applicable at all.
4.4. It is further submitted by Shri Dave, learned Counsel for the petitioner that as such the names of the respondent nos. 3 to 5 are included in the electoral roll of the constituency on Faculty of Law solely on ground that they are having the qualification of LLB. It is submitted that merely because a person is having qualification of LLB / law his name is not required to be included in the electoral roll of the teachers constituency of the Faculty of Law.
4.5. It is further submitted by Shri Dave, learned counsel for the petitioner that respective no.2 deliberately and with a mala fide intention and only with a view to favour respondent nos. 3 and 4 did not decide the objections raised by the petitioner dated 14.2.2015.
4.6. It is further submitted that even the name of the respondent no.5 has been included in the electoral roll of the constituency of Faculty of Law by corrigendum dated 23.2.2015. It is submitted that the decision of the respondent no.2 - Vice Chancellor to include the name of the respondent no.5 in the electoral roll of constituency of faculty of law published on 23.2.2015 is absolutely illegal, most arbitrary and even contrary to the provisions of Statute 116 (c). It is submitted that as per Statute 116 (c) Vice Chancellor shall have authority to correct the rolls by adding / altering or omitting names, if any, omission or wrong entries be brought to his notice, however such corrections shall be published at Page 7 of 26 C/SCA/3577/2015 CAV JUDGMENT least three clear days before the date fixed as the last date for receiving nominations at an election or byeelection of the Senate. It is submitted that in the present case as per election programme and the notification dated 7.2.2015 last date for receiving the nomination was 18.2.2015. It is submitted that therefore, exercise of powers by the Vice Chancellor under Statute 116(c) by including name of respondent no.5 in the electoral roll by issuing corrigendum dated 23.2.2015 is absolutely illegal, arbitrary and colourable exercise of powers and contrary to the Statute 116(c).
Making above submissions, it is requested to allow present Special Civil Application and direct the respondent nos. 1 and 2 University to remove the names of the respondent nos. 3 to 5 from the electoral roll of the constituency of Faculty of Law for all purposes and consequently directing respondent nos. 1 and 2 - University not to count the votes of the respondent nos. 3 to 5 for the byeelections to the Senate of the teachers constituency of Faculty of Law.
5.0. Shri Shalin Mehta, learned Counsel has appeared on behalf of respondent nos. 1 and 2. Separate affidavit in replies are filed by the respondent nos. 1 and 2 explaining their conduct of not accepting notice of this Court on 1.3.2015. An affidavit in reply is also filed by the respondent no.2 explaining his conduct of not taking any decision on the objections raised by the petitioner dated 14.2.2015 and taking the decision on the objections raised by the petitioner, only on 27.2.2015.
5.1. Shri Shalin Mehta, learned counsel for the respondent nos. 1 and 2 has vehemently submitted that the impugned decision of the respondent nos. 1 and 2, more particularly, respondent no.2 - Vice Chancellor of the University including names of respondent nos. 3 to 5 in the electoral roll of constituency of Faculty of Law is absolutely legal Page 8 of 26 C/SCA/3577/2015 CAV JUDGMENT and in consonance with the provision of Statute 120. It is submitted that respondent no.2 - Vice Chancellor has included the names of respondent nos. 3 to 5 in the electoral roll in exercise of powers under Statute 116(c).
5.2. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 1 and 2 that as it was found that respondent nos. 3 and 5 are having the qualification of law (LLB) and therefore, on true interpretation of the Statute 120, respondent no.2 had included the names of respondent nos. 3 to 5 in the electoral roll of the constituency of Faculty of Law. It is submitted that the impugned decision by the Vice Chancellor is on true and correct interpretation of Statute 120 and to the best of his ability and understanding and the same is not mala fide as alleged.
5.3. It is submitted that as such objections raised by the petitioner dated 14.2.2015 were in fact served upon the Vice Chancellor only on 16.2.2015 and therefore as the same were beyond the period of 7 days, no decision was taken by the Vice Chancellor on the said objections. However, subsequently having realized that the objections raised by the petitioner were required to be dealt with and decided, vide communication dated 27.2.2015, the same has been decided and rejected.
5.4. It is submitted by Shri Mehta, learned counsel for the respondent nos. 1 and 2, more particularly Vice Chancellor of the University that the University received a communication from the Principal of Shri J.M. Patel Arts College and the President of Anand People's Medicare Society, Anand on 11.2.2015, by which, the objection was raised that name of respondent no.5 though he applied for including Page 9 of 26 C/SCA/3577/2015 CAV JUDGMENT his name in the revised electoral roll of Law Faculty has not been included in the electoral roll of Law Faculty though he is possessing LLB Degree (S.P University). Therefore, as such the decision was taken on 14.2.2015 to include the name of respondent no.5 in the electoral roll of Faculty of Law.
5.5. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 1 and 2 that as the issue is with respect to interpretation of Statute 120 and two views are possible, the matter is required to be referred to the State Government as provided under Section 59 of the Act.
5.6. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 1 and 2 that as such respondent no.3 and 4 submitted the applications in the prescribed formate by exercising the option to include their names in the electoral roll of the constituency of Faculty of Law and as it was found that they are having qualification of law (LLB), considering the Statute 120 their names came to be included in the electoral roll of constituency of Faculty of Law.
Making above submissions, it is requested to dismiss the present Special Civil Application.
6.0. Present petition is also opposed by Shri I.H. Syed, learned advocate for the respondent nos. 3 to 5. He has as such adopted the submissions made by Shri Mehta, learned Counsel for the respondent nos. 1 and 2. Shri Syed, learned advocate for the respondent nos. 3 to 5 has made following additional submissions opposing the present petition and in support of his submissions that names of respondent nos. 3 to 5 are/ were rightly included in the electoral roll of the constituency of faculty of law.
Page 10 of 26 C/SCA/3577/2015 CAV JUDGMENT6.1. It is submitted by Shri Syed, learned advocate for the respondent nos. 3 to 5 that on 12.1.2015, university declared to hold byeelections for teachers of Arts and Law Faculty to be held on 3.3.2015 and intimated the respective colleges to send names of teachers from each affiliated colleges. It is submitted that on 20.1.2015, the University wrote to the Principals of all affiliated college that, who are interested can apply to enroll their names on electoral roll along with a prescribed format. It is submitted that respondent nos. 3 to 5, through their college wrote in the prescribed application form to enroll their names in the electoral roll of Law Faculty on 21.1.2015. It is submitted that on 31.1.2015 the university declared the revised electoral roll as on January, 2015 for the Faculty of Law wherein respondent nos. 3 and 4 were shown in the electoral roll for Law Faculty. It is submitted that on 2.2.2015, a notice was issued by the university in respect of the revised electoral roll of Faculty of Law as on January 2015. It is submitted that despite the above, the petitioner raised objection for the first time on 14.2.2015 / 16.2.2015. It is submitted that, however in revised electoral roll published on 2.2.2015/ 7.2.2015, name of respondent nos. 5 was not included and therefore, on 11.2.2015, the College Shri J.M. Patel Arts College, Anand forwarded the name of respondent no.5 to the Registrar of the University with a request to include his name in the recently revised electoral roll of Faculty of Law, along with an application by respondent no.5 through the Principal of the college. It is submitted that as such on 14.2.2015, a decision was taken by the university to include / add the name of respondent no.5 in the electoral roll of Faculty of Law. It is submitted that however corrigendum came to be issued on 23.2.2015 in respect of changes in the electoral roll as on 14.2.2015, in respect to the name of respondent no.5. It is submitted that therefore, no error and / or illegality has been committed by the respondent nos. 1 and 2, more particularly, respondent no.2 in including Page 11 of 26 C/SCA/3577/2015 CAV JUDGMENT the names of respondent nos. 3 to 5 in the electoral roll of constituency of Faculty of Law. It is submitted that as the respondent nos. 3 to 5 are having qualifications of LLB (Sardar Patel University) considering the Statute 120, they were/are entitled to have their names in the electoral roll of the Faculty of Arts as well as Faculty of Law and when respondent nos. 3 to 5 chose / opted for inclusion of their names in the electoral roll of Faculty of Law, considering statute 120 their names are rightly included in the electoral roll of the constituency of Faculty of Law. It is submitted that Statute 120 provides that every person is entitled to have his name entered on more than one roll of voters in respect of the constituencies of 'teachers' under Section 15(II)(A)(i) and (ii) either because he/she holds qualifications in a subject of subjects falling under more than one faculty ....... shall have at the time of preparation of the rolls to elect, under intimation to the Head/s of the institution where he is serving, the roll on which he desires his name to be entered and such election shall be conclusive. It is submitted that therefore, as respondent nos. 3 to 5 were having the qualification in a subject or subjects falling under more than one faculty i.e. in the present case Faculty of Arts and Faculty of Law, the electoral rolls are prepared strictly in terms of provision of the Act and the statute and the names of the respondent nos. 3 to 5 are rightly included in the electoral roll of the constituency of Faculty of Law.
Making above submissions, it is requested to dismiss the present Special Civil Application.
7.0. In reply, Shri Dave, learned Counsel for the petitioner has vehemently submitted that even so called applications submitted by the respondent nos. 3 to 5 opting for Faculty of Law is either back dated and / or is got up document. It is submitted that according to the respondent Page 12 of 26 C/SCA/3577/2015 CAV JUDGMENT nos. 3 to 5 they submitted applications on 21.1.2015 opting for Faculty of Law. It is submitted that however as on 21.1.2015 even byeelection of the constituency of Faculty of Law was not declared and which came to be declared only on 31.1.2015 and till then the byeelection of the constituency of Faculty of Arts only was declared. It is submitted that therefore, as on 21.1.2015 there was no reason and / or occasion for respondent nos. 3 to 5 to submit the applications in prescribed format and to opt for inclusion of their names in the electoral roll of constituency of Faculty of Law.
7.1. Now, so far as submission made by Shri Mehta, learned Counsel for the respondent nos. 1 and 2 to refer the matter to the State Government as provided under Section 59 of the Act is concerned, it is submitted by Shri Dave, learned counsel for the petitioner that as such there can be only one interpretation of Statute 120 as contended on behalf of the petitioner and there is no possibility of any other view and the decision of the respondent nos.1 and 2 is absolutely on misinterpretation of / or misreading of the statute 120. It is submitted therefore, that Section 59 of the Act would not be applicable at all. It is submitted that even otherwise this is a fit case to exercise the powers under Article 226 of the Constitution of India as the decision of the respondent nos. 1 and 2, more particularly, respondent no.2 is absolutely perverse, most arbitrary and colourable exercise of powers. Therefore, it is requested to allow, present Special Civil Application and grant the reliefs as prayed for.
8.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that what is challenged in the present petition is inclusion of names of respondent nos. 3 to 5 in the electoral roll of the constituency of faculty of law in the Senate of the Page 13 of 26 C/SCA/3577/2015 CAV JUDGMENT Sardar Patel University.
8.1.. It is required to be noted and it is not in dispute that respondent nos. 3 to 5 herein are the teachers in Arts college and are not teaching in the Law college or in any of the subjects of the Faculty of Law. Respondent nos. 3 to 5 are having the degree of LLB only. It is also required to be noted that the electoral roll is / was for the Teachers constituency of Faculty of Law in the Senate. In backdrop of the above, the issue involved in the present petition i.e. inclusion of the names of the respondent nos. 3 to 5 in the electoral roll of constituency of Faculty of Law is required to be considered.
8.2. While considering the issue involved in the present petition, few provisions of the Act and the Statute are required to be considered, which are as under:
Section 15. The Senate shall consist of the following I. Ex Officio Fellows ...........
..........
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.
..........
.........
Section 24. (1) The University shall institute the Faculties of Arts, Science, {Engineering and Technology}, Commerce, Agriculture and such other Faculties as may be constituted by the Senate by Statues from time to time..
(2). .........
(3). ........
Section 71. (a) In addition to the Faculties viz. (1) Arts (2) Science (3) Engineering and Technology (4) Commerce and Business Studies (5) Agriculture specified in Section 24 of the Act, there shall be the following faculties:
1. Faculty of Law Page 14 of 26 C/SCA/3577/2015 CAV JUDGMENT
2. Faculty of Education
3. Faculty of Home Science
4. Faculty of Homeopathy
5. Faculty of Pharmaceutical Science
6. Faculty of Medicine
7. Faculty of Management
(b).Each Faculty shall comprise the subjects shown below:
1. English
2. Gujarati
3. Hindi
4. Sanskrit, Pali, Prakrit
5. Other Modern Languages
6. Economics
7. Geography
8. History, Ancient Indian Culture and Archeology
9. Logic and Philosophy
10.Mathematics
11.Political Science including Constitutional History, Local Self Government and Public Administration
12. Psychology
13. Sociology
14. Statistics 15 . Cooperation
16. Fine Arts
17. Library Science .............
...........
Faculty of law
1. Constitutional
2. Jurisprudence
3. Law
4. Taxation and Labour Laws Statute.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 new 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 Page 15 of 26 C/SCA/3577/2015 CAV JUDGMENT Statutes, on the fourteenth day from the date of 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 be treated as the electoral roll.
(c). Subject to the provision 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, 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 byeelection of the Senate.
Statute 120. Every person entitled to have his name entered on more than one roll of voters in respect of the constituencies of "teachers" under Section 15II(A)(i) and (ii) either because he/ she holds qualifications in a subject or subjects falling under more than one Faculty or is a teacher serving on the staff of two or more colleges, shall at the time of preparation of rolls elect, under intimation to the Head/s of the Institutions where he is serving, the roll on which he desires his name to be entered and such election shall be conclusive; provided that any such "teacher" failing to elect the electoral roll/s in the manner indicated shall be assigned to the roll of the faculties and / or to the roll of one of the colleges concerned at the discretion of the Vice Chancellor.
8.3. Considering the aforesaid provisions of law, more particularly, Section 15 II(A)(i) of the Act, the Senate shall inter alia consists of one teacher from each of the faculties elected by the Teachers of subjects comprised under that faculty as ordinary fellows. Section 24 of the Act provides for faculties and it includes the faculties of Arts, Science, Engineering and Technology, Commerce, Agriculture and such other Faculties as may be constituted by the Senate by Statues from time to time. It also further provides that each faculties shall comprise such subjects as may be prescribed by the Statute. Over and above and in addition to the faculty's mentioned in Section 24, there shall be other faculties as mentioned / provided under Section 71 and it includes the Faculty of Law. Faculty of Law shall comprise the subjects of Page 16 of 26 C/SCA/3577/2015 CAV JUDGMENT (I).Constitutional Law, (II). Jurisprudence, (III) Law (IV) Taxation and Labour Laws. The Faculty of Law shall comprise the subjects as mentioned herein above. Thus, the subjects comprising the Faculty of Arts are not subjects comprising the Faculty of Arts. In a given case, it may happen that some of the subjects may be in one or more faculties, such as subject of mathematics which shall be in Faculty of arts, Faculty of Science and Faculty of Commerce and Business Studies. In such an eventuality, if a teacher is teaching the aforesaid subjects, he shall be entitled to include his name in the electoral roll of all the respective faculties. In such a situation, Statute 120 shall be applicable and come into play. Statute 120 provides that every person entitled to have his name entered on more than one roll of voters in respect of the constituencies of "teachers" under Section 15 II(A)(i) and (ii) either because he/ she holds qualifications in a subject or subjects falling under more than one Faculty ....... shall at the time of preparation of rolls elect, under intimation to the Head/s of the Institutions where he is serving, the roll on which he desires his name to be entered and such election shall be conclusive. Statute 120 also further provides that any such "teacher" failing to elect the electoral roll/s in the manner indicated shall be assigned to the roll of the faculties and / or to the roll of one of the colleges concerned at the discretion of the Vice Chancellor.
8.4. In the present case, names of the respondent nos. 3 to 5 are entered on the electoral roll of the constituency of teachers in the Faculty of Law considering the Statute 120, on the ground that though respondent nos. 3 to 5 are teachers in the faculty of Arts, they are also having the qualification of law (LLB), they are entitled to be on the roll of voters in respect of constituency of teachers in the Faculty of Arts as well as constituency of teachers of Faculty of Law. The aforesaid is absolutely on misreading and misinterpretation of the Statute 120.
Page 17 of 26 C/SCA/3577/2015 CAV JUDGMENTWhile entering the names of respondent nos. 3 to 5 in the electoral roll of voters in respect of constituency of Faculty of Law, the Vice Chancellor has absolutely misapplied the Statute 120. In the fact situation, as such Statute 120 shall not be applicable at all and / or same would not come into play at all. As the respondent nos. 3 to 5 are not the teachers in any of the subjects of Faculty of Law and as such they are the teachers in the subject of Faculty of Arts only, first of all respondent nos. 3 to 5 were not entitled to have their names entered on more than one roll of voters in respect of constituency of teacher under Section 15 II(A)(i) and (ii). On conjoint and fair reading of Sections 15, 24 and 71 of the Act r/w Statute 120, the only interpretation and / or meaning that can be given to Statute 120, shall be that a person who is a teacher and is entitled to have his name entered on more than one roll of voters in respect of constituency of "teachers" under Section 15 II(A)
(i) and (ii) either because he / she holds qualifications in a subject or subjects falling under more than one Faculty i.e. he / she must be a teacher teaching the subject or subjects falling under more than one faculty, he/ she at the time of preparation of the rolls elected, the roll on which he /she desires his/her name to be entered on the electoral roll so entered and such election shall be conclusive. In the present case, admittedly none of the respondent nos. 3 to 5 were /are entitled to have their names entered on more than one roll of voters i.e. in the present case the roll of voters in respect of the constituency of Faculty of Arts as well as Faculty of Law. Mere having / holding the qualification in a subject or subjects falling under more than one faculty is not sufficient and / or enough to attract Statute 120. Otherwise, the purpose for which, the electoral roll is prepared in respect of a particular constituency, in the present case constituency of Teachers under Section 15 II(A)(i) and (ii) would be frustrated and a person who is not even a teacher, teaching the subject in a particular Faculty may claim to have Page 18 of 26 C/SCA/3577/2015 CAV JUDGMENT his name entered into in the electoral roll of other constituencies of teachers merely on his acquiring / holding qualification. On fair reading of Statute 120, only in a case where a person is teaching the subject / subjects, which shall fall in more than one faculty such as mathematics, which shall fall both in Faculty of Arts and Faculty of Science; Statistics which shall all in the Faculty of Arts, Faculty of Science and Faculty of Commerce and Business Studies, Statute 120 would be attracted and such a person shall have to elect the roll on which he/she desires his/her names to be entered, failing which the consequence mentioned in Statute 120 shall follow.
8.05. Even, otherwise, it is required to be noted that when the In Charger Registrar sent communication dated 31.1.2015 to the Principals of affiliated Colleges, in the same it is specifically mentioned that persons who are designated as Professors, Readers and Lecturers and also the full time instructors/ Tutors/ Adhypak, Sahayak/ Full Time Physical Instructors/ Assistant Professors/ Associate Professors on the staff of the University or Colleges and whose appointments are approved by the University ( with Syndicate Resolution number and date of meeting) are entitled to enroll their names on the electoral rolls. Therefore, even communication dated 31.1.2015 makes it very clear that only the aforesaid persons are entitled to get their name entered on the electoral roll of the constituency of Faculty of Law. Therefore, it is now not open for the respondent nos. 1 and 2 to contend otherwise and contend that even persons having qualification in the subject of Law and who may not fall in any of the aforesaid categories i.e. may not be teaching in the subject of Faculty of Law his name is required to be entered on the electoral roll of Faculty of Law.
8.6. Under the circumstances, as none of the respondent nos. 3 Page 19 of 26 C/SCA/3577/2015 CAV JUDGMENT to 5 are teachers in the subjects of Faculty of Law and as such they are teaching the subjects in the Faculty of Arts, their names are wrongly included in the electoral roll of constituency of teachers of Faculty of Law.
9.0. There are other reasons also to hold that names of respondent nos. 3 to 5 are wrongly included in the electoral roll of the constituency of Faculty of Law by respondent no.2. It is the case on behalf of the respondent nos. 3 to 5 that they submitted applications in the prescribed format on 21.1.2015, electing for enrolling their names in the electoral roll of Faculty of Law and on the basis of which their names came to be entered on the roll of voters in respect of constituency of teachers of Faculty of Law. However, it is required to be noted that the day on which the respondent nos. 3 to 5 have alleged to have submitted the applications in prescribed format i.e. on 21.1.2015 even byeelection for the constituency of teachers of the Faculty of Law was not even declared, which admittedly came to be declared on 31.1.2015. It also appears that therefore, till even 31.1.2015 there was no intimation to any of the Principals of the Affiliated Colleges in the Faculty of Law to send the names of the teachers as was done in the case of byeelection for the constituency of faculty of Arts. For the first time, vide communication dated 31.1.2015 the Incharge Registrar of the University sent the communication to the Principals of affiliated colleges in the Faculty of Law asking for the particulars of the teachers on the basis of which the electoral roll of constituency of f Faculty of Law can be prepared. Under the circumstances, there was no necessity and / or occasion for the respondent nos. 3 to 5 to send the applications in prescribed format electing for the Faculty of Law. At this stage, it is required to be noted that when a pointed a question was asked to the learned counsel for the respondent university that how respondent nos.
Page 20 of 26 C/SCA/3577/2015 CAV JUDGMENT3 to 5 could have submitted the applications in the prescribed format on 21.1.2015 when byeelection of the constituency of Faculty of Law was not declared and the same came to be declared on 31.1.2015, Shri Mehta, learned counsel for the respondent nos. 1 and 2 has stated at the bar that as such those applications were received somewhere on 3.2.2015. Thus, it appears that even respondent nos. 3 to 5 have not come with clean hands. At this stage, it is required to be noted that respondent nos. 3 to 5 in their affidavit in reply dated 5.3.2015 in para 4 have stated that on 12.1.2015, the respondent university declared to hold byeelections for teachers of Arts and Law Faculties under Section 15 II(A)(i) and (ii) to be held on 3.3.2015, which is factually not correct. On 12.1.2015, byeelection of constituency for Faculty of Arts only was declared and the byeelection for the constituency of Faculty of Law came to be declared on 31.1.2015.
10. Even otherwise, inclusion of the names of respondent no.5 in the electoral roll of constituency of Faculty of Law by issuing Corrigendum dated 23.2.2015 is absolutely illegal, most arbitrary and nothing but a colourable exercise of powers by respondent no.2 Vice Chancellor of the Sardar Patel University. It is the case on behalf of the respondents that name of respondent no.5 has been included in the electoral roll of the constituency of faculty of law by respondent no.2 Vice Chancellor in exercise of powers under Statute 116 (c). It is required to be noted that as per the election programme declared the last day for submitting the nominations was 18.2.2015. The corrigendum has been published including name of respondent no.5 in the electoral roll of constituency of faculty of law on 23.2.2015. Statute 116(c) confers upon the Vice Chancellor, to correct rolls by adding / altering or omitting names, if any omission or wrong entries be brought to his notice. However, such correction shall be PUBLISHED at least Page 21 of 26 C/SCA/3577/2015 CAV JUDGMENT THREE CLEAR DAYS before the date fixed as the last for receiving nominations at an election or byeelection to the Senate. As observed herein above in the present case, the last date for receiving the nominations was 18.2.2015 and corrigendum has been published on 23.2.2015 i.e. much after even the last date for receiving the nominations. The reason for imposing such condition that such correction shall be published at least three clear days before the date fixed as the last date for receiving nominations seems to be that anybody is not taken by surprise and that any aggrieve may challenge it before the appropriate Court / forum. Therefore, as such the name of respondent no.5 could not have been included in the electoral roll of the constituency of Faculty of Law by corrigendum published on 23.2.2015. The aforesaid is absolutely contrary to the Statute 116(c).
10.1. In the affidavit in reply, respondents have tried to make out a case that as such the decision to include the name of respondent no.5 in the electoral roll was taken on 14.2.2015, however the same came to be published on 23.2.2015. However, from the office note on the file dated 13.2.2015, it appears that respondent no.2 Vice Chancellor signed the said note on 16.2.2015. Meaning thereby, as such proposed decision to include name of respondent no.5 in the electoral roll was not even placed before the Vice Chancellor upto 16.2.2015. Under the circumstances, it cannot be said that even the decision was not taken by the Vice Chancellor to include the name of respondent no.5 in the electoral roll on 14.2.2015 as stated in the affidavit in reply. A decision can be said to have been taken on the date on which it is signed by the appropriate authority, in the present case the Vice Chancellor. It appears that only with a view to get out of the provisions of the Statute 116(c), respondents, more particularly, respondent nos. 1 and 2 have now come out with a aforesaid case that decision was taken on 14.2.2015. Apart Page 22 of 26 C/SCA/3577/2015 CAV JUDGMENT from the fact that the aforesaid is not supported by any evidence, same seems to be an afterthought.
10.2. Even otherwise, considering the provisions of Statute 116(c) any correction shall be published at least three clear days before the date fixed as last date for receiving nominations at an election or byeelection to the Senate. In the present case, admittedly corrigendum dated 23.2.2015 including the name of respondent no.5 in the electoral roll came to be issued and even published on 23.2.2015 i.e. much after the last date for receiving the nomination, as the last date for receiving nominations was 18.2.2015. Under the circumstances, also the decision of respondent no.2 Vice Chancellor to include the name of respondent no.5 in the electoral roll by corrigendum dated 23.2.2015 is absolutely arbitrary and contrary to the provision of Statute.
11. Even the conduct on the part of the respondent nos. 1 and 2, more particularly, respondent no.2 not to decide the objections submitted by the petitioner, which were submitted against the inclusion of the names of the respondent nos. 3 and 4 in the electoral roll of constituency of faculty of law deserve serious consideration. It is an admitted position that the objections raised by the petitioner against inclusion of the names of the respondent nos. 3 and 4 in the electoral roll of constituency of faculty of law has been rejected on 27.2.2015, which has been communicated to the petitioner only on 28.2.2015. It is required to be noted that the petitioner preferred Special Civil Application on 27.2.2015 making one of the grievance that till date objections submitted by the petitioner has not been decided / disposed of. The advance copy of the petition was served upon respondent nos. 1 and 2 prior to 27.2.2015 and in the covering letter by the advocate, respondent nos. 1 and 2 were informed that hearing of the petition is likely to be on 28.2.2015 or 1.3.2015. Therefore, immediately and having come to know about filing of the petition, respondent no.2 has Page 23 of 26 C/SCA/3577/2015 CAV JUDGMENT decided the objections vide communication dated 27.2.2015, which came to be served upon petitioner on 28.2.2015. The respondent nos. 1 and 2, more particularly, respondent no.2 has tried to explain the reasons for not deciding the objections on the ground that the objections of the petitioner were received after 7 days from the date of publishing the electoral roll i.e. 16.2.2015. However, it is required to be noted that, that is not the ground by which, the objections of the petitioner has been disposed of and / rejected on 27.2.2015. The objections of the petitioner has been rejected on merits. It is not explained by the respondent no.2 why all of a sudden he decided and disposed of the objections on 27.2.2015. Under the circumstances, explanation given by the respondent nos. 1 and 2, more particularly, respondent no.2 in not deciding the objections raised by the petitioner earlier seems to be nothing but an afterthought and having came to know of filing of the petition, in which, one of the grievance was made that Vice Chancellor has not decided the objections till date. As such, as a Vice Chancellor of the University, he was required to act independently and fairly. As a Vice Chancellor, he has to teach the lesson to the student. Therefore, looking to the position occupied by the respondent no.2 as a Vice Chancellor, it was expected that he ought to have acted independently and fairly.
12. Now, so far as contention on behalf of the respondents that in view of Section 59 of the Act and there is question of interpretation of Statute 120 and two views are possible this Court may not entertain petition and may not decide the issue and refer the matter to the State Government is concerned, the aforesaid has no substance and cannot be accepted. First of all, as such there are no two views and / or interpretation possible. There can be only one interpretation of Statute 120 as interpreted herein above. Even otherwise, the said power can be exercised either by the Vice Chancellor and/or any other aggrieved persons. On the aforesaid ground and more particularly, the glaring Page 24 of 26 C/SCA/3577/2015 CAV JUDGMENT illegality including the names of respondent nos. 3 to 5 in the electoral roll of constituency of Faculty of Law is found this Court is not precluded from exercising the powers under Article 226 of the Constitution of India. On the contrary, this Court is of the opinion that this is a fit case to exercise the powers under Article 226 of the Constitution of India.
13. In view of the above and for the reasons stated above, present petition succeeds. The impugned decision of the respondent nos. 1 and 2, more particularly, respondent no.2 including names of respondent nos. 3 to 5 on the electoral roll of constituency of Faculty of Law is hereby quashed and set aside. It is held that the action of respondent nos. 1 and 2 in including the names of respondent nos. 3 to 5 in constituency of Faculty of Law is absolutely illegal, most arbitrary and it is held that respondent nos. 3 to 5 are not entitled to have / had their names included on the electoral roll of constituency of teachers of Faculty of Law and they have / had no right to participate and / or vote in the election of the teachers constituency of Faculty of Law. Consequently, the votes cast, by them in the bye election of constituency of teachers of Faculty of Law are to be ignored for all purposes and they shall not be counted at all. Now, respondent nos. 1 and 2 to proceed further with the counting for the constituency of Teacher of Faculty of Law excluding the votes cast by the respondent nos. 3 to 5 and declare the result forthwith. Rule is made absolute accordingly with exemplary token cost upon respondent nos. 1 and 2 quantified at Rs.2500/ each. To be deposited with the Registry of this Court within a period of one week from today and the said cost shall be borne by respondent nos.1 and 2 themselves and shall not be borne by University as ultimately money of the University is a public money.
sd/ (M.R.SHAH, J.) Page 25 of 26 C/SCA/3577/2015 CAV JUDGMENT sd/ (G.B.SHAH, J.) FURTHER ORDER At this stage, after the judgment was pronounced, learned Counsel for the respondent nos. 1 and 2 has requested to stay the present order for a period of 2 weeks. We fail to appreciate the anxiety on the part of respondent nos. 1 and 2 to stay this order. As already observed herein above, it was expected from the Vice Chancellor that he should act fairly and independently. He should not take side of anybody. Hence, request made on behalf learned Counsel on behalf of respondent nos. 1 and 2 is hereby rejected.
At this stage, Shri Syed, learned Counsel for the respondent nos. 3 to 5 has also requested to stay the present order for a period of two weeks. For the reasons stated herein above, it is held that action of respondent nos. 1 and 2 in including names of respondent nos. 3 to 5 is held to be illegal and as such result of the election of the constituency of Faculty of Law is withheld and it is reported that meeting of the Senate is scheduled on 14.3.2015, prayer is rejected.
sd/ (M.R.SHAH, J.) sd/ (G.B.SHAH, J.) kaushik Page 26 of 26