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2010 DIGILAW 508 (GUJ)

RANJANA HARISH DWIVEDI v. GUJARAT UNIVERSITY

2010-10-15

S.R.BRAHMBHATT

body2010
JUDGMENT 1. Heard learned advocates for the parties. 2. The petitioner, a member of the respondent-University court, who successfully challenged the election of two members of the Executive Council of Gujarat University, in appeal preferred under Section 58 of the Gujarat University Act,1949, has moved this Court under Article 226 of the Constitution of India inter alia seeking a writ of mandamus or any other writ, order or direction to respondent Nos.1 and 2 for implementing and executing the order passed in the appeal by the State on 31.5.2010 canceling the election of two members of the Executive Council and directing the respondent Nos.1 and 2 to hold fresh election for two vacancies thus arisen on account of cancellation of the election of two members. 3. As the challenge was in a narrow compass, the matter was decided to be heard finally and is being disposed of by this judgment. Hence, Rule. Mrs. V.D. Nanavati, learned advocate waives service of Rule on behalf of respondent Nos 1 and 2. Ms. Jirga Jhaveri, learned Assistant Government Pleader, waives service of Rule on behalf of respondent No.3. 4. The facts in brief leading to filing of this petition, deserve to be set out as under :- 4.1 The present petitioner was constrained to file Special Civil Application No.8958 of 2009 challenging of essentially, the action of the Gujarat University in accepting nominations of Smt. Rajshree Gopal Bhatt Professor and Head of the Statistics Department in School of Science of Gujarat University and Mr. S.R.Dave Professor and Head of Microbiology Department of School of Science, both belonging to faculty of science, for the election to the post of Member, Executive Council of Gujarat University in violation of section 19(1)(vi) of the Gujarat University Act 1949 read with statute 161(b) requiring that out of the two University Professors to be elected by the University Court from amongst its members to the Executive Council of Gujarat University, there shall not be more than one professor from each of the faculties to which he belongs as teacher. In short both the University Professors, cannot be of the same faculty like Arts faculty or Science faculty. In short both the University Professors, cannot be of the same faculty like Arts faculty or Science faculty. This Court in the said petition vide its order dated 27.08.2009 granted interim relief in the following terms, In the meantime elections may be held for for two seats in the Executive Council of Gujarat University in the category of the University Professors under section 19(1)(vi) of the Gujarat University Act 1949 but the result shall not be declared. The number of votes obtained by each candidates shall be placed in sealed cover before this Court (emphasis supplied). The said petition came to be disposed of by this Court vide orders dated 9.9.2009, relegating the petitioner to avail the alternative remedy under Section 58 of the Gujarat Universities Act, 1949. The Court passed the following directions 10. We therefore, dispose of this petition only on the ground that the petitioner has an alternative remedy under section 58 of the Gujarat University Act 1949. The authority under section 58, shall hear and decide the election petition as expeditiously as possible and in any case within three months from the date of receiving the copy of this petition , which may be treated as the memo of the election petition . In the meantime, interim relief against the declaration of the result of the election is vacated , but the result shall shall abide by the out come of the election petition to be decided by the State Government within three months from the date of receipt of the memo of the petition along with a copy of this order. The envelop containing result of the election shall be returned to the learned counsel for the University 11 The petition is accordingly disposed of in terms of the above observations and directions Subject to the same Rule is discharged (emphasis supplied) The State of Gujarat vide its order dated 31.05.2010 quashed the election of the two University Professors, holding that as they belonged to the same science faculty there was violation of the provisions of section 19(1)(vi) read with statute 161(b) of the Gujarat University Act 1949 and statute made there under respectively. The State Government ordered holding of fresh elections forthwith. The State Government ordered holding of fresh elections forthwith. The petitioner, appellant before the State Government,whose election petition was allowed by the State Government,immediately requested all the concerned vide her representation dated 2.06.2010 placed at page 228 on the compilation of this petition, to implement the order of the State Government as well as that of the Hon'ble Gujarat High Court as she had successfully challenged nomination and election of two professors candidates who could not have been members of the Executive Council as they both belonged to the same faculty and she who belonged to the Arts Faculty being the third candidate, had to suffer. Thereafter the petitioner sent many reminders without any avail. Ultimately she had to once again move this court by way of this petition for seeking appropriate relief. This Court (Coram:H.K.Rathod, J.) vide order dated 20.9.2010 issued notice which was made returnable on 23.9.2010 and direct service of the order was permitted on the very same day. 5. Today, as stated herein above, with the consent of the learned advocates for the parties, matter was taken up for final disposal as the issue was in a very narrow compass. 6. Learned advocate for the petitioner contended that the inaction on the part of the respondent University amounts to depriving the petitioner of her legitimate right to contest the election as the vacancy has arisen and the entire election of the original incumbents, who were respondent Nos. 4 an 5 in the earlier petition, came to be revoked at the instance of the petitioner. The delay and/or inaction on the part of the respondent has resulted into petitioner being deprived of her legitimate right and now when the petition was filed for implementation of the order of the State, where under the University is directed to hold election for the post of member of the Executive Council, the two members election have been revoked, the University was under pious duty to hold election without delaying the matter any more. Learned advocate for the petitioner further submitted that the inaction on the part of the University Authorities therefore amounts to shirking from their statutory duty which also is in violation of this Hon'ble Court's order dated 09.09.2009 where under this Court clearly observed that the result so declared would abide by the outcome of the election petition. Learned advocate for the petitioner further submitted that the inaction on the part of the University Authorities therefore amounts to shirking from their statutory duty which also is in violation of this Hon'ble Court's order dated 09.09.2009 where under this Court clearly observed that the result so declared would abide by the outcome of the election petition. The University authorities are under obligation to abide by these orders. 7. Learned counsel for the University contended that this Court, in peculiar facts and circumstances of the present case, may not issue any mandamus as, at the best, the petitioner can be said to be agitating her statutory right flowing from the statute called Gujarat University Act,1949 and under the very same statute the provision of section 56 makes it incumbent upon the University not to fill up the vacancy if its required to be filled up by holding election and if it arises within six months period preceding date on which the term of such member ends. Learned counsel for the respondent no. 1 and 2 invited this Court's attention to Section 56 along with its proviso and relying upon the said Section and it's proviso, submission was made that the Court may not issue futile direction as the elections to the very Court have been announced as the term of Court is going to end within a short period, namely, by 6.12.2010. Learned counsel for the University, in support of the contention with regard to non-issuances of writ in such a situation, relied upon the decision of the Apex Court in the case of Director of Settlements, A.P. and others vs. M.R. Apparao and another reported in AIR 2002 SC 1598 and reliance was also placed in respect of the observation of the Apex Court that the Court will have to take into consideration the right, existing and/or subsisting on the date when the mandamus is required to be issued. The learned counsel for the University, thereafter, relied upon the decision of the Apex Court in the case of State of Bihar and others vs. Ramdeo Yadav and others reported in AIR 1996 SC 3135 , especially paragraphs 8,9 and 10 of the judgment and submitted that the writ of mandamus could not be issued contrary to the provisions of law or which may have effect of directing the authorities to act contrary to the provisions of law. The submission was canvassed that the proviso to Section 56 is unambiguously clear to indicate that the vacancy if to be filled-in by election is not to be filled-in by election if the terms ends within six months.. The learned counsel for the University, thereafter, relied upon the decision of the Apex Court in the case of State of U.P. vs. Harish Chandra and others reported in AIR 1996 SC 2173 and in the case of State of West Bengal vs. Subhas Kumar Chatterjee & Ors. reported in AIR 2010 SC 2927 in support of his submission. The decision to hold election of the Court is already taken and it is notified to all that the election would be held on 28.11.2010, which would go to show that even if there is a mandamus issued today, the entire mandamus and any exercised made there under would be in futility as the petitioner who has merely right to contest election will not get the term, even if she is elected for longer tenure, than few days only. The peculiar facts of this case, therefore, may persuade the Court not to issue any direction which may not, in fact, help the petitioner in any manner or cause inconvenience to the State or the instrumentality, namely the University in the present case. 8. The Court heard learned advocates for the parties and perused Section 56 of the University Act, which is pressed into service for resisting the petition and proviso thereunder, The same deserves to be set out as under:- 56. When any vacancy occurs in the office of a member( other than an ex-officio member) of any authority or other body of the University before the expiry of the term of office of such member, the vacancy shall be filled up, as soon as conveniently may be, by the election, nomination, appointment or co-option, as the case may be, of a member who shall hold office so long only as the member in whose place he has been elected, nominated, appointed or co-opted, would have held it, if the vacancy had not occurred:Provided that, if the vacancy be of a elected member of the [ Court] and occurs within six months preceding the date on which the term of office of such member expires, the vacancy shall not be filled. 9. 9. The simple reading of Section 56 of the University Act and its proviso goes to show that when any vacancy occurs in the office of a member (other than ex officio member) of any authority or other body of the University before the expiry of the term of office of such member, the vacancy shall be filled up as soon as conveniently may be by the election ,nomination, appointment or co-option as the case may be of the member who shall hold office so long only as the member in whose place he has been elected, nominated appointed or co-opted would have held it, if the vacancy had not occurred ; Thus filling up of vacancy amidst the term of any authority or other body of the university is rather mandatory and therefore it is incumbent upon the University to fill up such vacancy though the new incumbent being appointed by way of election, nomination or co-option, would hold the office only for the remaining term. The proviso to Section 56 carves out an exception in the aforesaid mandatory provisions namely ; if the vacancy so occurring amidst the term of the Court and its required to be filled in by way of election only and if its occurs within six months preceding the date on which the term of the office of such member is expiring than only in such situation it is not required to be filled up. 10. This strict interpretation of provisions of section 65 of the Gujarat University Act 1949 would show that vacancies occurring amidst the term of any body or authority of the Gujarat University like University Court, Executive Council, or any other authorities functioning under the Gujarat University Act 1949 are required to be filled up in accordance with the prescribed mode of filling in those vacancies, be it by nomination, co-option or election and the incumbent so appointed is to hold office till the remaining term of the office. The proviso makes an exception only in case when vacancy occurs amidst the term of Court of the University and its required to be filled up by way of election only and if it occurs within six months from the date of expiring the term than only in that case the vacancy is not required to be filled up. 11. The proviso makes an exception only in case when vacancy occurs amidst the term of Court of the University and its required to be filled up by way of election only and if it occurs within six months from the date of expiring the term than only in that case the vacancy is not required to be filled up. 11. Now let us examine facts of the present case in light of the provisions of Section 56 of the Gujarat University Act 19489. In the instant case on account of the State Government's order dated 31.05.2010, accepting the Election appeal of the present petitioner and quashing of the election of two incumbents- members of the Executive Council, two vacancies occurred in the Executive Council of the Gujarat University on 31.05.2010, which is not the Court as envisaged under the proviso to the Section 56 of the Gujarat University Act 1949 and the term of Executive Council being co-terminous with that of University Court, the term of the two members whose election was quashed vide order dated 31.05.2010, would have also ended only on 6.12.2010 had their election not being quashed and in that view the new incumbents who are required to be elected would hold office in the place of the vacating incumbent only up to 6.12.2010 i.e. the remaining term of the Executive Council. The two vacancies in the offices of Executive Council of Gujarat University are said to have occurred on 31.05.2010 and the term of Executive Council being co-terminous with Court, would end on 6.12.2010, therefore their term also would have ended only on 6.12.2010. The new incumbent also would enjoy the office only up to end of the existing term,i.e. up to 6.12.2010. Thus the occurrence of two vacancies in the office of the members of Executive council of Gujarat University cannot be said to be within six months period from the date on which the term would end and the occurrence being in the body called Executive Council, not being Court as envisaged in the proviso to Section 56 of the Gujarat University Act 1949, the stand of respondent University that in view of proviso to Section 56 of the Gujarat University Act 1949 no mandamus be issued is untenable in eye of law. 12. 12. It is required to be noted at this stage that petitioner's categorical contention in her rejoinder in paragraph 8 that election is requested to the office of the member of the Executive Council and not to the office in the Court and hence proviso to Section 56 of the Act , which clearly prescribes election to Court and not other body, would not be applicable in the instant case, has not been controverted by the University. 13. It is also required to be borne in mind that in fact embargo created in proviso to Section 56 of the Gujarat University Act 1949 operates only in cases of vacancies occurring amidst the term of Court and that too if its required to be filled up by election and if its occurred within six months from the date on which the terms is ending. As stated herein above the two vacancies in the office of member of Executive Council have occurred little more than six months before the date of expire of the term and therefore also on that account it can be said that proviso to Section 56 of the Gujarat University Act 1949 will have no applicability. The tenure of newly appointed or elected members was of no relevance and hence the Gujarat University cannot be permitted to hold it against the petitioner. On simple reading of the provision of Section 56 of the the Gujarat University Act 1949 would clearly show that occurrence of vacancy and not tenure of the new incumbent was prime factor required to considered while interpreting and implementing the said provisions. The likelihood of incumbent holding office for short tenure in the office cannot be the ground for denying him office if he is period would not be ground to deny him the office or right to office if he is otherwise eligible and entitled to it. 14. The stand of the Gujarat University in resisting the petition on the ground of announcement of election to the Court, i.e. the body which elects the members of the Executive Council also would be of no avail to it as it is admitted fact that Executive Council as well as the Court both will have its term up to 6.12.2010. The stand of the Gujarat University in resisting the petition on the ground of announcement of election to the Court, i.e. the body which elects the members of the Executive Council also would be of no avail to it as it is admitted fact that Executive Council as well as the Court both will have its term up to 6.12.2010. The petitioner who had challenged very nomination of two incumbents in the inception, and who has succeeded in bringing about annulment to their election and who has been vigilantly pursuing her legitimate and constitutional remedies cannot be denied relief on spacious pleas of inconvenience, short length of tenure in case of her being elected, etc as they all being extraneous considerations, cannot be treated as legal impediments in way of granting her relief. 15. It would be appropriate to note at this stage that learned counsel for the University relying upon the provisions of Statute 23 of the Gujarat University Statute framed under the provisions of the the Gujarat University Act 1949, contended that the requirement of issuance of 42 days' advance notice of the meeting of Court of the Gujarat University for electing members to the Executive Council would leave very little or no tenure to the newly elected incumbent and hence no mandamus could be issued. This submission need not be treated as an impediment as length of tenure is not the criteria for denying the incumbent his right to the office if he is otherwise entitled to it. Of course, while issuing the direction Court needs to be mindful that Statutory Authority may not be constrained to violate any statutory provisions. But only shortness of tenure cannot be ground for rejecting the petition. However it is required to be noted that Learned Counsel for the petitioner has also not pointed out any other provisions like calling urgent meeting for transacting business of urgent nature at short notice. Be that as it may the direction if any has to be given which may not be contrary to the statutory provisions. The Statue 23 being directory or mandatory is not urged or argued before me hence I do not propose to go into it at this stage. 16. Be that as it may the direction if any has to be given which may not be contrary to the statutory provisions. The Statue 23 being directory or mandatory is not urged or argued before me hence I do not propose to go into it at this stage. 16. In view of the foregoing discussion this Court is of the considered view that issuance of writ of mandamus in this petition to the Gujarat University for holding election for filling up the vacancies occurred on account of the order of the State Government, dated 31.05.2010 would not be amounting to calling upon the Gujarat University to act contrary to the provisions of the Section 56 of the the Gujarat University Act 1949, rather it would be a step in securing one of the cherished constitutional goals of upholding dignity and majesty of law which needs to inform all the concerned that right to the office or right to contest election even if it's merely a statutory right cannot be permitted to be whittled down on account of administrative inertia or intentional apathy of unscrupulous elements. It goes without saying that in society firmly wedded to democracy and whose primary goal is to inculcate rule of law and democratic principles of governance in its major institutions, slightest attempt to thwart or throttle any democratic process like election, would have enormous impact of undermining the very fabric of society. The Gujarat University's stand is not justified. The Respondent No. 1 and 2 have not given any cogent reasons as to why and in what circumstances they were prevented from complying with the order dated 31.05.2010. In absence of any material from the Gujarat University explaining or justifying their inaction from at least 31.05.2010 despite repeated reminders of the petitioner for compliance with order dated 31.05.2010, betrays more than mere inertia or apathy on the part of the concerned. The lack of concern to the cause of justice cannot be countenanced by Court of law for so called administrative inconvenience on the part of those who were under obligation to obey. The aggrieved therefore must be granted relief and the respondents no. 1 and 2 need to be directed to act in accordance with law. 17. In view of this the petition is allowed. The aggrieved therefore must be granted relief and the respondents no. 1 and 2 need to be directed to act in accordance with law. 17. In view of this the petition is allowed. The inaction of the Gujarat University in matter of election of two members' vacancies in the Executive Council on account of proviso to Section 56 of the Gujarat University Act 1949 is held to be violative of the petitioner's right and hence it deserves to be so declared. It would not now be open to the Gujarat University to deny the election to the vacancies occurred due to order dated 31.05.2010 in the office of the members of the Executive Council only on the basis of the proviso to the Section 56 of the Gujarat University Act 1949 The writ of mandamus is required to be issued to the Respondent No.1 and 2 directing them to abide by the order of the State Government ,dated 31.05.2010 and hold election for filling up the vacancies occurred, on account of the State Government's order dated 31.05.2010, in the office of the members of the Executive Council of Gujarat University. The Gujarat University shall hold such election for filling up the two vacancies in the existing Executive Council in accordance with law as soon as possible preferably within the time and term of the present Court which expires on 6.12.2010. However in view of the provisions of Statute 23 the Court hastened to add here that this direction may not be so construed as to compel the Gujarat University to ignore any mandatory provisions of law requiring observance in holding elections to these vacancies, and the the Respondents no. 1 and 2 are expected to evince their earnestness and perseverance in holding the elections to the vacancies as directed herein above. If the powers to hold meeting at short notice are available than the respondent No. 1 and 2 must exercise the same, the direction for holding election is to be construed accordingly and not in contravention of any provisions of law. 18. Rule is made absolute with no order as to cost.