A. R. CHAUHAN v. STATE OF HIMACHAL PRADESH — 1992 DIGILAW 97 (HP)

JUDGMENT Leila Seth, (Chief Justice).—The petitioner is working as the Registrar of the Himachal Pradesh University since 2lst February, 1981. He is challenging the amended sections 12, 15 and 15-A of the Himachal Pradesh University Act, 1970 (hereinafter to be referred to as the Act’), as lacking legislative competence and being in colourable exercise of power and violative of Article 14 of the Constitution of India. 2. The Bhartya Janta Party came into power in the State of Himachal Pradesh in 1990. The petitioner asserts that they wanted to oust him and reduce the term of the V ice-Chancellor. Consequently the Act was amended by the Himachal Pradesh University (Amendment) Act (Act No. 14 of 1991), which received the assent of the Governor on 23rd May, 1991. 3. The relevant reasons for bringing about the amendments as indicated in the Statement of Objects and Reasons are i (i) As per the existing provisions of section 10 of the Act, the Controller of Examinations, is not included amongst the officers of the University. Since he is responsible for the conduct of examinations at all levels, it has, therefore, been considered necessary to include the Controller of Examinations amongst the officers of the University. (ii) Keeping in view the importance of the work of examination, it is proposed to create the office of Controller of Examinations with equal pay and status of the Registrar and to fill op the same by transfer from the incumbent of the office of the Registrar. (iii) As at present the term of office of the Vice-Chancellor is 5 years. In order to infuse healthy life in the working of the University, it has been considered necessary to reduce the term of office of the Vice-Chancellor from 5 years to 3 years. (iv) Under the existing provisions the Registrar of the Himachal Pradesh University is a member of the Executive Council, Academic Council and Court of the Himachal Pradesh University. This is not only unprecedented and against the recommendations of the Committee on governance of University and Colleges, headed by Mr Justice P Gajendragadkar but also leads to a confrontation between the Vice-Chanceilor and the Registrar which impinges heavily on the discipline of the University Consequently it has become necessary to make the Registrar only the Secretary of these bodies. 4. 4. The relevant amendment brought about in consequence was that section 10 of the Act which details the "Officers of the University" was amended to include as clause (iv-a) the Controller of Examinations. As a result the officers of the University are (i) the Chancellor ; (ii) the Vice-Chancellor ; (iii) the Dean of Faculties ; (iv) the Registrar; (iv-a) the Controller of Examinations ; (v) the Finance Officer ; and (vi) such other persons in the service of the University as may be declared by the Statutes to be the officers of the University. 5. Section 12 of the Act was amended to substitute the words three years in place of five years’, thus reducing the term of the Vice Chancellor. 6. Since the main ground of attack of the petitioner pertains to amended sections 15 and 15-A it is necessary to set out section 15 as it stood prior to its substitution by the new section 15 and the insertion of section 15-A. "15. Registrar— There shall be a Registrar who shall be the Member-Secretary of the Court, the Executive Council and the Academic Council and who shall be appointed in such manner and exercise such powers and perform such duties as may be prescribed by the Statutes," 7. Section 15 of the principal Act was substituted by the following section:— "15. Registrar— There shall be a Registrar who shall be the Member-Secretary of the Court, the Executive Council and the Academic Council and who shall be appointed in such manner and exercise such powers and perform such duties as may be prescribed by the Statutes," 7. Section 15 of the principal Act was substituted by the following section:— "15. Registrar—There shall be a Registrar who shall be the Secretary of the Court, the Executive Council and the Academic Council and shall be appointed in the manner laid down in the Statutes by selection or by deputation from amongst those eligible under the existing provisions of the First Ordinances of the University and shall exercise such powers and discharge such duties as may be prescribed by the Statutes: Provided that the existing incumbent of the office of Registrar shall continue to hold office till he vacates it by appointment by transfer as the Controller of Examinations in terms of section 15-A or by retirement, resignation or otherwise." After section 15 of the principal Act, the following section 15-A was inserted by the said amendment,— "15-A. Controller of Examinations.—There shall be a Controller of Examinations who shall have same status and pay as the Registrar and who shall be appointed by transfer of the incumbent of the office of the Registrar or in such other manner and shall exercise such powers and perform such functions, as may be prescribed by the Statutes. 8. What is the change brought about by the new provisions, particularly, sections 15 and 15-A? Briefly, the Registrar is now to be only the Secretary of the Court, the Executive Council and the Academic Council and not its Member. The existing incumbent can be transferred as the Controller of Examinations, who is an officer of the University, and future incumbents can also be so transferred. The post of the Controller of Examinations will have the same status and pay as that of the post of the Registrar. 9. Mr. Indar Singh, learned Counsel for the petitioner, has contended that there is some repugnancy between the amended provisions of the Act and the University Grants Commission Act, 1956; since education is the subject-matter of Entry 28 of List III (the concurrent List) of the 7th Schedule of the Constitution of India, the earlier enactment should prevail. 9. Mr. Indar Singh, learned Counsel for the petitioner, has contended that there is some repugnancy between the amended provisions of the Act and the University Grants Commission Act, 1956; since education is the subject-matter of Entry 28 of List III (the concurrent List) of the 7th Schedule of the Constitution of India, the earlier enactment should prevail. He relied on the decision in M. Karunanidhi v. Union of India, AIR 1979 SC 898. 10. He urged that there was a direction given by the University Grants Commission that a Registrar should be a Member of the Executive Council and since the amendment provided that he would only be the Secretary of the various bodies, the amendment was repugnant and bad. In any case the reasons indicated for bringing about this change, that is, it was unprecedented and impinged on the discipline of the University, were mala fide. In many Universities the Registrar was the Member-Secretary and discipline was not affected. On the other hand it would affect the financial position of the University, as grants from the University Grants Commission would not be easily given as their direction was not being followed. 11. There does not appear to be any force in this contention. First, because there is no such direction. What has been sought to be shown as a direction is in fact only a recommendation of a group discussion held by certain associations and the University was requested to send its opinion/comments on these recommendations. Consequently, it has been categorically stated in the States reply that grants and financial assistance given on the recommendations of the University Grants Commission have not been stopped to those Universities where the Registrar is not a Member-Secretary of such bodies. The Himachal Pradesh University was getting grants and financial assistance prior to the time when the Registrar was a Member-Secretary and it is not dependent on this fact. 12. There is no dispute that in the Act as originally enacted in 1970 the Registrar was not a Member of these bodies He had been made a Member of these bodies in 1982. 12. There is no dispute that in the Act as originally enacted in 1970 the Registrar was not a Member of these bodies He had been made a Member of these bodies in 1982. This change had been brought about by the amendment of 1982- The Statement of Objects and Reasons for bringing about the change was as follows:— "Under the existing provisions of the Himachal Pradesh University Act, 1970 and the Statutes, made thereunder, the Registrar of University has been made the exofficio Secretary of the various bodies of the University i. e the Court, the Executive Council and the Academic Council, but he cannot take part in the deliberations of the said bodies. Since the Registrar plays central and crucial role in the affairs of the University and his practical administrative knowledge and experience can be of great help for the discharge of functions of the aforesaid bodies of the University, it has become necessary to remove the statutory restriction for the Registrar to participate in the deliberations of the aforesaid bodies of the University of which he is the Secretary." 13. It is, therefore, apparent that the decision to include the Registrar as a Member in 1982 was because his knowledge would help in the functioning of the University and the decision to exclude him in 1991 was because of the resultant confrontation impinging on the discipline of the University and the recommendation of the Gajendragadkar Committee. 14. Is reversing the position once again bad? It would appear not. In the present case it has been asseited that the dropping of the Registrar from being a member of the Court, the Academic Council/Executive Council is a healthy convention as in many Universities, including Punjab, the Registrar is not a member of such bodies Further, the Registrar is an executive functionary and consequently it is not proper to make him a member of such bodies where his voting right will make him superior. The dual position of permitting a person discharging the highest executive function to deliberate/vote in the Committees/Bodies where his suggestions/ decisions/proposals are to be approved would be to directly or indirectly or by implication allow him to influence and dominate, consequently the amendment brings about the open and fair right of voting to those who ought to possess that privilege. 15. 15. As has been noticed earlier when the Act of 1970 was passed the Registrar was not a Member-Secretary but only a Secretary of the various bodies. This change was brought about subsequently in 1982 and there does not seem to be any justification for urging that the Legislature cannot amend the provisions to bring about a situation where the Registrar is once again not a Member-Secretary. As such it appears to us on the facts indicated above that there is no question of any repugnancy as no law has been made by Parliament which affects the competence of the State Legislature to legislate on this aspect and the decision in M. Karunanidhi v. Union of India (supra) is not applicable or relevant. 16. Mr. Indar Singh, learned Counsel for the petitioner, next contended that the provisions of sections 15 and 15-A are aimed at getting rid of the petitioner. Further, by virtue of section 15-A, the Controller of Examinations can be appointed ‘by transfer of the incumbent of the office of the Registrar’. Thus, he submitted that the intention is clear that the petitioner is not to remain as the Registrar but to be appointed by transfer as the Controller of Examinations and this is why the power has been given. 17. He further urged that equating the Controller of Examinations with the Registrar is rot proper and legal because ; (a) the Registrar is the senior-most Executive Officer of the University, (b) he has the power to make appointments of some categories of employees under Ordinance 357 of the First Ordinances of the University and (c) he is the disciplinary authority as intended under statute 4 (5) (a of the First Statutes, whereas the Controller of Examinations is neither the senior-most Executive Officer of the University nor has he power to make appointments or take disciplinary action. He, therefore, contended that the two posts are not equivalent and the pest of the Registrar is superior to that of the Controller of Examinations. Consequently the provisions pertaining to transfer should be struck down 18. A further assertion was made that the Registrar is entitled to rent free accommodation, like the Vice-Chancellor, whereas no such facility is available to the Controller of Examinations. Consequently the provisions pertaining to transfer should be struck down 18. A further assertion was made that the Registrar is entitled to rent free accommodation, like the Vice-Chancellor, whereas no such facility is available to the Controller of Examinations. He is also the custodian of the common seal and records of the University and its spokesman whereas no such powers are vested in the Controller of Examinations even by the amendment. Consequently it was contended that the provisions permitting appointment of the Registrar as the Controller of Examinations by transfer will amount to a reduction in rank as there is clear loss of status and will operate as a penalty; merely because there is equivalent pay or emoluments will not make it an equivalent post as one does not live only on the basis of emoluments but the status and the attributes and privileges attached to a post are more important, 19. Dealing first with the man does not live by bread alone’ theory, it would appear to us that this matter cannot be looked at on the basis of sentiment but has to be examined in law, 20. Does the State Legislature have power to create an equivalent post to that of the Registrar? There is no dispute that the answer must be yes. Does the State Legislature have power to provide for transfer from an equivalent post to another? The answer to this is also a categorical yes. 21. Can it do so even if the intention is to transfer the petitioner? 22. The State Legislature has recognized two equal functionaries i.e. the Controller of Examinations and the Registrar There does not appear to be any difficulty about the legislative competence of the Himachal Pradesh Legislature to do so. A colourable legislation does not involve any question of bona fides or mala fides on the part of the Legislature but pertains to the question of competence of the Legislature. It is well settled that the constitutionality of a statute cannot be challenged on the ground that the law made is not reasonable or just. The questions that have to be examined are whether it is within the legislative field and whether it violates a fundamental right The Court cannot embark on an enquiry into public policy or investigate questions of political wisdom and/or pronounce upon the motives of the Legislature. The questions that have to be examined are whether it is within the legislative field and whether it violates a fundamental right The Court cannot embark on an enquiry into public policy or investigate questions of political wisdom and/or pronounce upon the motives of the Legislature. The wisdom of the Legislature in passing an Act is irrelevant in deciding whether it is a colourable exercise of power when the legislative competence of Parliament/State to pass the law is not in dispute. It has been held by the Supreme Court in a catena of cases that if a Legislature is competent then motives are irrelevant. The question is one of power. If the Constitution distributes the legislative powers amongst different bodies they have to act within their respective spheres, if the challenge is to legislative competence one has to examine whether it falls within the field or entry in pith and substance. The question of non-application of mind is not material, As opined by Chief Justice Chandrachud in K. Nagaraj and others etc. etc. v. State of Andhra Pradesh and another etc. etc., AIR 1988 SC 551, non-application of mind can be a relevant factor to strike down an executive action but is not relevant when considering the plenary power of the State Legislature. He has also opined that the Legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of ‘transferred malice’ is unknown in the field of legislation. 23 The most recent decision of the Supreme Court on this point is The State of Himachal Pradesh and another v. Shri Kailash Chand Mahajan and others, AIR 1992 SC 1227, wherein K. Nagaraj’s case has been reiterated. Consequently the argument on colourable exercise of power and that of legislative competence must fail. 24. The Registrar has no vested right to hold the office of the Registrar. The Legislature is competent to abolish or create an office and change the terms and conditions of its incumbents as long as it does not violate Article 14. Consequently the argument on colourable exercise of power and that of legislative competence must fail. 24. The Registrar has no vested right to hold the office of the Registrar. The Legislature is competent to abolish or create an office and change the terms and conditions of its incumbents as long as it does not violate Article 14. The status of the Registrar and the Controller of Examinations are material and significant in their own spheres and neither has any supremacy over the other; nor is there any lowering of status pr visited by any evil consequences, as asserted by the State. Further, admittedly the qualifications for the Controller of Examinations are the same as that of the Registrar. 25. Therefore, it would appear to us that the State Legislature was competent to bring about the amendments in sections 15 and 15-A. However, we will deal with the proviso to section 15 separately. 26. Mr. Indar Singh has vehemently urged that the proviso to section 15 is a single mans legislation and only aimed at getting rid of the petitioner and appointing him as the Controller of Examinations There is co relevant nexus with the object sought to be achieved and must be struck down. The sheet anchor of his argument is the decision in Dinnapati Sadasiva Reddi, Vice-Chancellor, Osmania University v. Chancellor, Osmania University and others, AIR 1967 SC 1305. 27. It is not in dispute that the provision is a single mans legislation. For there is only one incumbent Registrar. In Shri Ram Krishna Dalmia eic. etc. v. Shri Justice S. R. Tendolkar and others etc etc., AIR 1956 SC 53«, Chief Justice S. R. Das speaking for the Court opined that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. 28. In the present case it is obviously to provide a similar situation of transfer for the existing incumbent as for future incumbents of the post of Registrar that the proviso was inserted. 28. In the present case it is obviously to provide a similar situation of transfer for the existing incumbent as for future incumbents of the post of Registrar that the proviso was inserted. But there does not appear to be any evil consequences or discrimination even if the legislation pertains to the present incumbent as a class by himself The Legislature has specifically provided that he will continue to hold the office of Registrar till he vacates it "by appointment by transfer" or by retirement, resignation or otherwise. It is an enabling clause to transfer the existing incumbent from the office of the Registrar as the Controller of Examinations. Admittedly, the pay and other facilities of the Registrar are to be protected. Consequently there is no evil and no discrimination In fact the proviso had to be introduced to protect the present existing incumbent and not leave a discretion to ignore him. Since there is only one Registrar a provision had to be made to protect him to ensure that he cannot be got rid of by the University except as indicated in the proviso. That is why it is stated that he shall continue to hold office till he vacates it by appointment by transfer as the Controller of Examinations in terms of section 15-A or by retirement, resignation or otherwise. The law does not need to be struck down on the question of equal protection clause as the object is not discriminatory and the purpose is to protect the present incumbent, since he is a class by himself, that is the existing incumbent Registrar. If, however, action is mala fide taken against the Registrar then that action under the statute if wrong can be struck down but the statute itself is not to be struck down if it is valid. 29. In K. Gopaul v. Union of India and others, AIR 1957 SC 1864, even executive action in transferring a person from Inspector General of Registration, to Accommodation Controller’ was upheld. There too, the contention was that the transfer resulted in reduction in rank as the post of Accommodation Controller" was not the post of a head of department whereas that of the Inspector General of Registration was. Of course this will depend on the facts of each case and the Supreme Court held on those facts that the transfer was in order. 30. Of course this will depend on the facts of each case and the Supreme Court held on those facts that the transfer was in order. 30. There is no dispute that there can be a legislation for a single person if he is a class by himself. The Legislature could have abolished the post, and ethics is not material in legislation, but it provided that he could also be transferred as a Controller of Examinations like future incumbents. 31. The decision in Dinnapati Sadasiva Reddi: (supra) is based on its peculiar facts. In that case the Vice-Chancellor of Osmania University had been appointed for a further term of five years on 30th April, 1964. Consequently be would have continued till the end of 1969. la 1966 the Act was first amended to provide for the appointment of the Vice-chancellor by the Chancellor alone; a provision was introduced whereby he could be removed from office by an order of the Chancellor passed on the ground of misbehaviour or incapacity after enquiry by a person who was or had been a Judge of a High Court or the Supreme Court and after the Vice-Chancellor bad been given an opportunity of making a representation against the removal. The term of the Vice-Chancellor was reduced from five years to three years The Act was amended a second time in 1966 and section 13-A was introduced in the main Osmania University Act of 1^59 Briefly, the section provided that the person holding the office of the Vice-Chancelior immediately before the commencement of the amending Act was to hold office only until a new Vice-Chancellor was appointed and that such appointment must be made within 90 days of such commencement. Further, on the appointment of a new Vice-Chancellor and on his entering office the person holding the post of Vice-Chancellor immediately prior to such appointment would cease to hold office. 32. The Supreme Court accepted the contention of Mr. Setalvad that this provision was discriminatory as the incumbent Vice-Chancellor could be forced out of office/removed within 90 days of the second amendment Act without going through the provisions required for his removal by the first amendment Act of 1966 and there was no rational basis for making a difference between the incumbent Vice-Chancellor and other Vice-Chancellors. 33. In the present case the position is quite different. 33. In the present case the position is quite different. Sections 15 and 15-A deal with the fact that there will be two posts, one of a Registrar and the other of a Controller of Examinations which will be of equal status and pay. The Controller of Examinations can be appointed, apart from any manner prescribed by the statute, by transfer from the post of Registrar. This is true not only of the existing incumbent Registrar but will also apply to future incumbent Registrars. This is apparent from the fact that section 15-A provides for appointment ‘by transfer of the incumbent of the office of the Registrar whereas the proviso to section 15 refers to the appointment by transfer of the existing incumbent9. Consequently there is no discrimination. The proviso is an enabling clause and has a reasonable nexus with the object sought to be achieved, that is, to have equal status posts of Registrar and Controller of Examinations operating in their own spheres. There does not appear to be any reason to strike down the legislative action providing for the enabling provision. 34. This writ petition was filed on 30th May, 1991. On 31st May, 1991 an interim order was made restraining the respondents from implementing sections 15 and 15-A of the Himachal Pradesh University Act, 1970, till 6th June, 1991. On 6th June, 1^91 the interim order of 31st May, 1991 was extended till the final decision of C.M.P, No. 483 of 1991 or further orders of the Court whichever is earlier. It appears that no orders were passed thereafter in the said application and the writ petition was directed to be listed for disposal. Consequently the interim order is continuing. 35. For the reasons outlined above, we are of the view that the writ petition must fail and it is accordingly dismissed and the interim orders vacated. However, we make no order as to costs. Writ petition dismissed.