Bhagwatsaran v. Chancellor University of Jabalpur — 1965 DIGILAW 128 (MP)

ORDER Dixit, C.J. 1. This order will also govern the disposal of Misc. petition No. 186 of 1965. 2. The controversy raised by these two petitions is on the question whether Shri Bhagwatsaran Audholia, who is the petitioner in Misc. Petition No. 104 of 1965, is entitled to function as a member of the Court and the Academic Council and as the Dean of the Faculty of Commerce and Head of the Department of Studies in Commerce in the University of Jabalpur. Shri Audholia claims that he is entitled to so function and prays for the issue of a direction commanding the opponents to recognize him as a member of the Court and the Academic Council and as the Dean of the Faculty of Commerce and Head of the Department of Studies in Commerce and to issue to him notices of the meetings of the above bodies that may be held. The petitioners in the other case, on the other hand, contend that Shri Audholia has not the status claimed by him and that the order of the Chancellor dated 9th February 1965 holding that he is entitled to continue as a member of the University Court is illegal and ask for the issue of a writ of Certiorari for quashing the order of the Chancellor and also a direction in the nature of Quo warranto for ousting Shri Audholia from the membership of the University Court. 3. The material facts are that the D.N. Jain College (hereinafter referred to as the College) in an institution affiliated to the Jabalpur University. Shri Audholia was the Principal of the College till 30th June 1964. While he was the Principal, serious difference arose between him and the Foundation Society of the College, resulting in a none too satisfactory management of the College. The Executive Council of the University, therefore, with the consent of Shri Audholia and the Foundation Society, decided to take over the management of the College and did so by appointing a Managing Committee under Ordinance No. 69 of the University. The Executive Council of the University, therefore, with the consent of Shri Audholia and the Foundation Society, decided to take over the management of the College and did so by appointing a Managing Committee under Ordinance No. 69 of the University. One of the conditions on which the Executive Council of the University resolved on 29th June 1964 and decided to take over the management of the College was that Shri Audholia should be granted leave with full pay for one year in the first instance and that he should not be associated with the administration, management and teaching of the College during the period the Ordinance No. 69 remains in force. On 28th July 1964 the Managing Committee appointed under the Ordinance passed a resolution granting leave to Shri Audholia for a period of one year from 1st July 1964 to 30th June 1965 on the last pay drawn by him in accordance with the condition under which the management of the College was taken over by the University. According, Shri Audholia proceeded on leave from 1st July 1964. 4. On 28th June 1962 the Chancellor appointed Shri Audholia as the Dean of the Faculty of Commerce for a period of two years. His term as Dean thus expired on 28th June 1964. He was also appointed as Head of the Department of Studies by the Vice-Chancellor on 17th June 1961 for a period of three years ending on 27th June 1964. As Principal of the College and Head of the Department of Studies Shri Audholia became under section 22 (1) of the Jabalpur University Act, 1956 (hereinafter referred to as the Act) an Ex-officio member of the University Court. He also became in his capacity as Head of the Department of Studies a member of the Academic Council by virtue of clause (vi) of section 27 (2) of the Act. Thus, on the date on which Audholia proceeded on leave, that is, on 1st July 1964, he was a member of the Court as also a member of the Academic Council. On that date he bad ceased to be the Dean of the Faculty of Commerce and Head of the Department of Studies because of the expiry of the terms of these appointments. On that date he bad ceased to be the Dean of the Faculty of Commerce and Head of the Department of Studies because of the expiry of the terms of these appointments. It must be stated here that by a notification issued by the University on 2nd May 1964 Shri Audholia was recognized as Professor in Commerce with effect from 18th April 1964. This recognition was granted under and in accordance with section 58 of the Act. 5. It appears that some time after 1st July 1964 some Members of the University Court raised before the Vice-Chancellor the issue whether Shri Audholia having proceeding on leave from 1st July 1964 for a period exceeding six months was entitled to continue as a member of the Court and of the Academic Council and as the Dean of the Faculty of Commerce and Head of the Department of studies. They also addressed a letter to the Chancellor in that behalf. On this question being raised, the Vice-Chancellor by his letter dated 31st August/1st September 1964 referred the matter for decision to the Chancellor as required by section 45 of the Act. On 9th February 1965 the Chancellor addressed the fol1owing Communication to the Vice-Chancellor intimating his decision in the matter referred to him under section 45. The communication ran thus- "I have carefully considered the matter on the strength of expert legal opinion, and in exercise of the powers conferred on me under Section 45 of the Jabalpar University Act, 1956, I hold that Shri Audholia continues to be a Professor even after proceeding on leave and so continues to be a member of the Court, although he ceases to be a member of the Academic Council, the Head of the Department of Studies and also the Dean of the Faculty of Commerce." 6. Learned counsel for the petitioners and the learned Advocate General appearing for the Chancellor took us through the various provisions of the Act and of some Statutes while addressing arguments in support of their contentions. It is not necessary to refer to all those provisions. Learned counsel for the petitioners and the learned Advocate General appearing for the Chancellor took us through the various provisions of the Act and of some Statutes while addressing arguments in support of their contentions. It is not necessary to refer to all those provisions. The question that arises for our determination is whether Shri Audholia, having ceased to be the Dean of the Faculty of Commerce and Head of the Department of Studies and having proceeded on leave for a period of one year from 1st July 1964, is at all entitled to continue as a member of the Court and of the Academic Council whether as the Principal of the College or as a Professor recognized in Commerce. In connection with this question the material previsions to consider are section 2 (e), (j) and (k), clauses (xii), (xiii), and (xiv) of section 22 (1), Clauses (vi), (vii) and (viii) of section 27 (2) and sections 57, 58 and 59 of the Act. 7. It is first necessary to determine the status of and capacity attached to the petitioner Shri Audholia after 1st July 1964 when he proceeded on leave and during the period of leave. He was no doubt the Foundation Principal of the College but with effect from 1st July 1964 when he went on leave he ceased to be the Principal of the Collage. This is clear from the definition of the term "Principal" given in section 2 (e) of the Act which says:- "'Principal' means the head of college; and includes when there is no Principal the person for the time being duly appointed to act as Principal, and in the absence of the Principal or the acting Principal, a Vice-Principal duly appointed as such;" According to this definition, Principal is the person who is actually functioning as the head of a College so that if a College has a pern1anent Principal and if he goes on leave the person who is appointed to act as Principal is the Principal. The definition also shows that in the absence of the Principal or the acting Principal a Vice-Principal duly appointed is also included in the term "Principal". The definition also shows that in the absence of the Principal or the acting Principal a Vice-Principal duly appointed is also included in the term "Principal". The result of Shri Audholia's proceeding on leave from 1st July 1964 was that with effect from that date he ceased to be the head of the College and could not, therefore, be regarded as the Principal of the College during the period of his leave. 8. Now, Shri Audholia, though he ceased to be the Principal of the College, continued to have the status of Professor in Commerce which was conferred on him by the University under and in accordance with section 58 of the Act with effect from 18th April 1964 It is pertinent to state how Shri Audholia acquired that status in order to be dealt with the contention advanced by Shri Dabir, learned counsel appearing for the petitioners in Misc. Petition No. 186 of 1965 that Shri Audholia ceased to be the Professor from 1st July 1964 when he went on leave; and that even if he continued to be the Professor, he must be deemed to have ceased to hold the office of Professorship as laid down in the proviso to section 59 (2) when he proceeded on leave for a period exceeding six months. Clause (j) of section 2 of the Act defines "teachers of the University" thus: "'teachers of the University' includes all persons who with the approval of the Academic Council, import instructions or guide research in the University or in any College." Shri Audholia, who was imparting instructions in the College with the approval of the Academic Council, was clearly a teacher of the University. The next clause, namely, clause (k) of section 2 says: "'Professors' and 'Readers' mean teachers of the University who have been appointed or recognised by the Executive Council as Professors or Readers, respectively;" This clause read with section 57 classifies Professors and Readers into two categories, namely, (a) Appointed Professors and Readers and (b) Recognised Professor; and Readers Sub-section (2) of section 57 is concerned with 'Appointed Professors and Readers'. That provision is not material here. That provision is not material here. Sub-section (3) of section 5 provides that: "Recognised Professors and Readers shall be such members of the staff of colleges, not maintained by the University, as may be recognised by the Executive Council, as Professors or Readers in accordance with the provisions contained in section 58." Shri Audholia was head of the College as well as a member of the staff of the College when be was recognised as Professor in Commerce by the University with effect from 18th April 1964 by an order passed under section 58 (4). There is no dispute that the recognition of Shri Audholia was in conformity with section 58. The argument of Shri Dabir is that the basic requirement for recognition as Professor as laid down in section 57 (3) of the Act is that the person to be recognize as Professor must be a member of the staff of an affiliated College; that Shri Audholia was recognized as Professor in April 1964 when he was on the staff of the College but when he went on leave from 1st July 1964 he ceased to be a member of the staff of the College; and consequently the basic qualification for his continuance as Professor, namely, membership of the staff of the College, disappeared with the result that he ceased to be the Professor when he proceeded on leave. This argument cannot be accepted. The flaw in it lies in assuming that when Shri Audholia proceeded on leave on 1st July 1964 he ceased to be a member of the staff of the College from that date. There is no warrant for such an assumption. One of the conditions on which the University took over the management of the College was no doubt that Shri Audholia should not be associated with the administration, management and teaching of the College during the period the Ordinance No. 69 remains in force. But it is impossible to read into this condition the implication that with effect from the date on which the University took over the management of the College or from the date Shri Audholia went on leave he ceased to be a member of the staff of the College. No doubt, when Shri Audholia went on leave he ceased to be associated with the administration and management of the College and leaching in the College. No doubt, when Shri Audholia went on leave he ceased to be associated with the administration and management of the College and leaching in the College. But this is far from saying that he ceased to be a member of the staff of the College. A member of the staff of the College does not cease to be so merely because he proceeds on leave and is not able to teach in the College during the period of his leave. Shri Audholia would have ceased to be a member of the staff of the College only if his services with the College had been terminated by retirement or otherwise. The very fact that Shri Audholia was granted leave for a period of one year on the last pay drawn by him itself indicates that even during the period of his leave he continued to be a member of the staff. A person cannot proceed on leave unless he is in service and he cannot draw salary for the leave period unless and until he is regarded as still in service. The contention that Shri Audholia ceased to be a member of the staff of the College from 1st July 1964 and during the period of his leave is therefore untenable. If, as we think, even during leave period Shri Audholia continued to be a member of the staff of the College, then clearly the recognition given to him under section 58 as Professor in Commerce continued to be validly effective. 9. Before examining the other contention of Shri Dabir resting on section 59 it would be appropriate to refer first to the constitution of the Court and of the Academic Council. Under section 22 (1) of the Act in the category of Ex-officio members of the Court are included:- (i) the Principals of Colleges, (ii) the Professors; and (iii) the Heads of the Department of Studies. Now, it is true that when Shri Audholia became an Ex-officio member of the Court, be was the Principal of the College and Head of the Department of Studies. When, therefore. Now, it is true that when Shri Audholia became an Ex-officio member of the Court, be was the Principal of the College and Head of the Department of Studies. When, therefore. he ceased to be the Head of the Department of Studies after 27th June 1964 and the Principal of the College from 1st July 1964 he could not remain an Ex-officio member of the Court in his capacity either as the Principal of the College or as the Head of the Department of Studies. This is plain from section 59 (2) of the Act, which expressly says- "Whenever any person becomes a member of any authority by virtue of the office held by him he shall forthwith cease to be a member of such authority if be ceases to hold such office before the expiry of the term of his membership." The proviso to sub-section (2) also places beyond doubt the position that Shri Audholia ceased to bold the office of the Principal of the College by reason of his proceeding on leave for a period exceeding six months. The proviso is as follows- "Provided that he shall not be deemed to have ceased to hold his office merely by reason of his proceeding on leave for a period not exceeding six months." Put affirmatively, the proviso means that a person shall be deemed to have ceased to hold his office if he proceeds on leave for a period exceeding six months. Shri Audholia ceased to be the Head of the Department of Studies on the expiry of his term as Head of the Department on 27th June 1964. He also ceased to be the Principal of the College as laid down in the proviso to section 59 (2). It follows, therefore, that during the period of his leave Shri Audholia could not claim to continue as an Ex-officio member of the Court as Principal of the College or as Head of the Department of Studies. 10. In regard to the constitution of the Academic Council section 27 (2) says that the Academic Council shall consist, Inter alia, of – (a) Heads of Department of Studies, (b) Principals other than Heads of the Department of Studies, and (c) Professors other than Principals and Heads of the Department of Studies. Shri Audholia became a member of the Academic Council in his capacity as Held of the Department of Studies. Shri Audholia became a member of the Academic Council in his capacity as Held of the Department of Studies. When he ceased to the Head of the Department of Studies on the expiry of his term as Head of the Department on 27th June 1964, be dearly ceased to be a member of the Academic Council as prescribed by section 59 (2) of the Act. 11. The question, however, remains whether Shri Audholia can now claim membership of the Court and of the Academic Council in his capacity as Professor in Commerce. It must be noted that neither in section 22 nor in section 27 is there any provision barring a person who has become an Ex-officio member of the Court or of the Academic Council by virtue of his holding a particular office from continuing his membership if he ceases to hold that office but holds another office or status entitling him to be a member of those bodies under sections 22 (1) and 27 (2) of the Act. There is no provision any'" here in the Act a bout the appointment or notification of the Ex-officio members of the Court or the Academic Council on which the argument that a person becoming an Ex-officio member of the Court or of the Academic Council on which the argument that a person becoming an Ex-officio member of the Court or of the Academic Council in one capacity cannot after ceasing to hold that capacity continue to be a member of those bodies in another capacity unless and until he is appointed by any competent authority as a member of those bodies in that capacity, can be built upon. 12. Now, Shri Audholia was not recognized as Professor in Commerce when as Principal and Head of the Department of Studies he became a member of the Court and the Academic Council. That recognition was conferred an him with effect from 18th April 1964 by a notification issued by the University on 2nd May, 1964. Soon thereafter he ceased to be the Head of the Department of Studies and proceeded an leave. During the period of the leave he had and even now be has the status of Professor in Commerce which gives him the right under sections 22 (1) and 27 (2) to become a member of the Court and the Academic Council. Soon thereafter he ceased to be the Head of the Department of Studies and proceeded an leave. During the period of the leave he had and even now be has the status of Professor in Commerce which gives him the right under sections 22 (1) and 27 (2) to become a member of the Court and the Academic Council. It is noteworthy that there is no qualification of any kind in connection with the term "the Professors" used in clause (xiii) of section 22 (1). From amongst the class of Professors the membership of the Court is not determined by any selection or by any rule of seniority. All persons who are appointed or recognized as Professors under sections 57 and 58 of the Act are members of the University Court. Likewise, all appointed Professors and recognized Professors, who are not Principals of Colleges and Heads of the Department of Studies, are entitled to be members of the Academic Council under clause (viii) of section 27(2). It is, therefore, plain enough that the petitioner Shri Audholia who had the status of Professor during the period of his leave and has that status even now is by virtue of clause (xiii) of section 22 (1) and clause (viii) of section 27 (2) entitled to function as member of the University Court and of the Academic Council. 13. Shri Dabir, learned counsel appearing for the petitioners Shri Pannalal Baldua and Shri Jagadamba Prasad Upadhya in Misc. Petition No. 186 of 1965, however, submitted that when Shri Audholia was recognized as Professor under section 58 he was appointed to the office of professorship in Commerce and according to the proviso to section 59(2) be must be deemed to have ceased to hold this office when be proceeded on leave for a period exceeding six months. It was said that after his recognition as Professor Shri Audholia held the office of professorship vis-a-vis the University though he held the office of a teacher in relation to his College. We are unable to accede to this argument. In view of the distinction drawn by section 57 between appointed Professors and recognized Professors it cannot be argued that when a member of the staff of the College not maintained by the University is recognized as a professor, he is appointed to any office. We are unable to accede to this argument. In view of the distinction drawn by section 57 between appointed Professors and recognized Professors it cannot be argued that when a member of the staff of the College not maintained by the University is recognized as a professor, he is appointed to any office. An appointed Professor, falling under section 57 (2) may be said to have been appointed to an office. But the same cannot be said of a person who is a member of the staff of a College not maintained by the University and who has been simply recognized as Professor. The recognition of such a person as Professor is nothing but conferment on him of the status of Professor. The Office which a member of the staff of a College holds is the office of a teacher in the College. He continues to bold that office even after recognition as Professor. By his recognition as Professor the person is not appointed to any new office. As because of his recognition as Professor in Commerce Shri Audholia was not appointed to any office, section 59(2) has clearly no applicability. 14. Shri Dabir also placed relience on Additional Statute 19(2) for contending that even if Shri Audholia was not the holder of any office as recognized Professor in Commerce, still he could not continue as a member of the Court or of the Academic Council when he proceeded on leave for a period exceeding six months. In our opinion, Additional Statute 19(2) which lays down, Inter alia, that if a Professor who is a member of an Authority of the University by virtue of his office Proceeds on leave for a period exceeding six months, his membership shall be deemed to have become vacant and the Professor next in seniority shall act in his place as a member of the Authority, has no applicability in the present case. The reason is that the Additional Statute applies only to those Authorities of the University which have been declared by the Statutes to be the Authorities of the University under section 21 (vi). The Court and the Academic Council are clearly not Authorities falling under clause (vi) of section 21. The reason is that the Additional Statute applies only to those Authorities of the University which have been declared by the Statutes to be the Authorities of the University under section 21 (vi). The Court and the Academic Council are clearly not Authorities falling under clause (vi) of section 21. That being so, Additional Statute 19(2) does not stand in the way of the petitioner Shri Audholia in continuing as a member of the Court and of Academic Council in his capacity as Professor, in Commerce, even if he went on leave for a period exceeding six months. 15. How, coming to the order of the Chancellor that Shri Audholia continues to be a Professor even after proceeding on leave and so continues to be a member of the Court, but ceases to be a member of the Academic Council it is not a "speaking order". It does not state the reasons for the decision embodied therein. From what has been stated above, it is abundantly clear that if Shri Audholia continued to enjoy the status of Professor even after he went on leave and has that status even now and continues to be a member of the Court in his capacity as a Professor, then consistently with this view it must also be held that he continues to be a member of the Academic Council in that capacity. We must confess our inability to understand how if in his capacity as Professor membership of the Court can be conceded to Shri Audholia, he can be at the same time denied membership of the Academic Council. Shri Adhikari, learned Advocate-General, appearing for the Chancellor, said that the position of the Chancellor while determining a dispute referred to him under section 45 was that of an 'arbitrator" and, therefore, if the answer given by the Chancellor in the "unspeaking order" passed by him involved an erroneous decision on a point of law, his decision could not be interfered within these proceedings. We do not agree. The Chancellor, who bas only such powers as have been conferred on him by or under the Act, cannot in any sense be likened to an arbitrator while deciding any question mentioned in section 45 and stated to him for decision. It is important to note that under section 45 only certain questions can be referred to the Chancellor for decision. It is important to note that under section 45 only certain questions can be referred to the Chancellor for decision. They are whether any person has been duly elected or appointed as a member of any authority or other body of the University or whether any person is entitled to be a member of any authority or other body of the University. Now, these questions are clearly to be decided according to the legal right of the parties given by the relevant provisions of the Act, Statutes and Ordinances and on the true construction of those provisions. It cannot, therefore, be argued that while deciding any question referred to him under section 45 the Chancellor may consider what is fair and reasonable in the circumstances ignoring the relevant statutory provisions. The Chancellor's order is no doubt not a 'speaking order'. But the "error apparent on the face of the order" lies in the inconsistent position stated therein that though as Professor Shri Audholia continues to be member of the Court, he cannot be a member of the Academic Council in that capacity. Such an error apparent on the face of the record can clearly be corrected by the issue of a writ of Certiorari. 16. For the foregoing reasons, our conclusion is that Shri Audholia bad the status of Professor during the period of leave commencing on 1st July 1964 and bas that status even now, and in that capacity he continues to be a member of the Court as well as of the Academic Council Misc. Petition No. 104 of 1965 is, therefore, allowed. The order of the Chancellor communicated to the Vice-Chancellor on 9th February 1965 in so far as it holds that Shri Audholia ceases to be a member of the Academic Council is quashed. The respondents are directed to permit Shri Audholia to exercise his rights as member of the University Court and of the Academic Council and to give notices to him of the meetings of those bodies. The petitioner in Misc. Petition No. 104 of 1965, Shri Audholia, shall have costs of the application from the respondent No.2, the University of Jabalpur. Counsel's fee is fixed at Rs.150/-. The outstanding amount of the security deposit shall be refunded to the petitioner. Misc. Petition No. 186 of 1965 is dismissed. The petitioners in Misc. The petitioner in Misc. Petition No. 104 of 1965, Shri Audholia, shall have costs of the application from the respondent No.2, the University of Jabalpur. Counsel's fee is fixed at Rs.150/-. The outstanding amount of the security deposit shall be refunded to the petitioner. Misc. Petition No. 186 of 1965 is dismissed. The petitioners in Misc. Petition No. 186 of 1965, Shri Pannalal Baldua and Shri Jagadamba Prasad Upadhya, shall pay the costs of the respondent no. 1 Shri Bhagwatsaran Audholia. Counsel's fee in Misc. Petition No. 186 of 1965 is also fixed at Rs.150/-. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioners.