SCA/7635/2005 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7635 of 2005 HONOURABLE MR.JUSTICE KS JHAVERI =========================================================== === 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =========================================================== === INDRAVIJAYSINH BHIKHUBHA GOHIL - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) =========================================================== === Appearance : Mr. Girish Patel with Mr. AJ Yagnik for petitioner. Mr. AD Oza with Mr. VM Pancholi for respondent no.1. Mr. JR Nanavati with Mr. AR Thacker for respondent Nos.2-3 Mr. BB Naik with Mr. Bhargav N. Bhatt for respondent no.4. =========================================================== ======= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/10/2005 SCA/7635/2005 2/28 JUDGMENT CAV JUDGMENT 1.0 This petition is directed against the order passed by respondent no.1 dated 8.4.2005 whereby the State of Gujarat cancelled the nomination of the petitioner as Member of the Executive Council of the respondent Bhavnagar University by the Vice-Chancellor from 7.11.2003 in exercise of power under section 18(1)(iii) of the Act read with Statutes framed under the Act. 2.0 The short facts of the case as emerging from the petition are as under: 2.1 The petitioner is a Lecturer/Reader of Gujarati in the respondent Bhavnagar University. He has been teaching Gujarati to Postgradaute students of the Department of Gujarati in Bhavnagar University since last 14 years. 2.2 The petitioner was elected as a Member of the Court of Bhavnagar University constituted on 18.10.2003 from the constituency of the Teacher of University Department. There are two seats of teachers in the Executive Council of the University for this Constituency and there are some seats for undergraduate Teachers in the University Court. 2.3 In October 2003 the University Court was constituted. The petitioner and the respondent No.4, Dr. P.N. Bhatt were elected from the Constituency SCA/7635/2005 3/28 JUDGMENT of the teacher of University Department (other than the heads of the Department). As per section 18(1)(vii) of the Bhavnagar University Act, one of the two teachers is to be nominated to the Executive Council by the respondent Vice-Chancellor in exercise of his powers vested in Statute 81(1) (iii). 2.4 The Vice-Chancellor, in the process, nominated the petitioner. The petitioner was not nominated even once from the very constituency in past as a member of the Executive Council. Therefore he was given preference in the nomination over the respondent No.4. In pursuance of the same a Circular was issued on 5.11.2003 by the Bhavnagar University constituting Executive Council on 7.11.2003 under section 18(1) of the Act. 3.1 Being aggrieved by the nomination of the petitioner as a Member of the Executive Council by the Vice-Chancellor of Respondent University, the respondent No.4 made a Reference Application to the State of Gujarat against the Vice-Chancellor on 17.11.2003. Since action of university was challenged, only University was joined as party respondent and the petitioner was not joined as a party to the Reference Application. It may not be out of place to notice that proceedings pending before the State Government were not known to the petitioner. SCA/7635/2005 4/28 JUDGMENT 3.2 The State of Gujarat, after hearing the respondent University and respondent No.4, passed the order dated 8.4.2005 and thereby cancelled the decision of Vice Chancellor nominating the petitioner as a member of the Executive Council of the respondent Bhavnagar University and directed to appoint respondent No.4 as a Member of the Executive Council from the Constituency of the Teacher of University Department. 3.3 On coming to know about the aforesaid order the petitioner wrote a letter to the Vice-Chancellor and Registrar of University and copy therefore was sent to Chief Minister, Education Minister, etc. On 11.4.2005 the petitioner received a reply from the respondent University stating that the petitioner should approach the respondent State of Gujarat for redressal of the grievances in respect of the order dated 8.4.2005. 4.0 According to the petitioner, the joint meeting of Executive Council and Academic Council of the respondent Bhavnagar University was held on 12.4.2005, wherein the Vice Chancellor allowed the petitioner to act as a Member of the Executive Council and vote as well. Thereafter the petitioner made a representation to the Chancellor of the University, His Excellency the Governor and the State of Gujarat on 18.4.2005. However, no reply has been received. SCA/7635/2005 5/28 JUDGMENT 4.1 Under the aforesaid circumstances the petitioner has filed the aforesaid petition challenging the order dated 8.4.2005. 5.0 Mr. Girish Patel, learned Senior Advocate, appearing for the petitioner raised the following contentions. 5.1 That the order has been passed without providing the petitioner with any opportunity of being heard. According to him, though the petitioner is the most vitally affected person, as his nomination as a member of the Executive Council by the respondent Vice Chancellor was cancelled, he should have been afforded an opportunity of hearing. 5.2 That the order has been passed in violation of section 67(2)(b)(i) of the Act inasmuch as the mandatory opportunity of being heard to the petitioner was not afforded to him at all. According to him, the entire proceedings about the cancellation of nomination of the petitioner as a Member of Executive Council of the respondent Bhavnagar University was held behind his back. 5.3 That the order in question is not a reasoned one and is absolutely vague. 5.4 That the order is an exparte order. According to the petitioner, the SCA/7635/2005 6/28 JUDGMENT respondent University is not actually the affected party which was joined as an only opponent and the petitioner was not joined deliberately in order to keep the petitioner absolutely out of process of law. 5.5 That the order has been passed in violation of the provisions of section 18(1)(vii) of the Act read with Statute 81(1)(iii) of the Statutes framed under the Act for the respondent University and therefore it is illegal and unlawful. 5.6 That the Reference Application of the respondent No.4 was lying unheard since it was filed in the year 2003. Suddenly on 8.4.2005 the application was heard and on the very day a cryptic order has been passed. According to the petitioner, he was sought to be prevented from attending the joint meeting of the Executive Council and the Academic Council that was held on 12.4.2005 in order to constitute one member of a Search Committee who would later on after due exercise suggest names of prospective Vice Chancellor of the respondent University. 5.7 That every nomination made by the Vice Chancellor even from amongst the other constituencies in the year 2003, is based on the policy of rotation. In other words, every nomination is influenced by the policy of rotation and those who were nominated once in the past from amongst other constituencies where consciously overlooked and not nominated. Therefore SCA/7635/2005 7/28 JUDGMENT the Vice Chancellor has while filling up the positions and the posts adopted uniform policy for every constituency and therefore there is no discrimination in so far as not nominating respondent No.4 is concerned. 5.8 That the length of service or seniority is a factor to be considered while preparing list of teachers for nomination. But the very next logical step of nomination has to be in the backdrop of the requirement of rotation and not repetition as per the Bhavnagar University Act. The nomination of the petitioner is actuated out of the policy of rotation, whereas the respondent No.4 insists that he ought to have been nominated which would mean repetition and consequent violation of section 18 of the Act read with Statute 81 of the Statutes framed under the Act. 6.0 Mr. Patel has relied upon the following decisions in support of his contentions. 6.1 In the case of Gujarat University Vs. N.U. Rajguru and Ors., reported in GLR 1988-1 Volume 29, Page No. 308 it is held as under: “It is settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right, SCA/7635/2005 8/28 JUDGMENT instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But extraordinary circumstances may exist of justify by-passing the alternative remedies. In the instant, case, there existed no circumstance justify departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court. (Para 6) 6.2 In the case of Udit Narayan Singh Vs.Board of Revenue, reported in AIR 1963 Supreme Court Page No. 789, in para 9 it is held as under: (9) The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. (emphasis supplied) 6.3 On the basis of the aforesaid contentions, learned counsel for the SCA/7635/2005 9/28 JUDGMENT petitioner submitted that the petition deserves to be allowed and the prayers made in this petition require to be granted. 7.0 Mr. J.R. Nanavati, learned Senior Advocate appearing for respondent nos.2 and 3 made the following submissions: 7.1 The Vice-Chancellor by order dated 7.11.2003 nominated the petitioner as the member of the Executive Council under Clause (vii) of sub-section (1) of Section 18 of the Bhavnagar University Act. The Vice Chancellor, before he took decision to nominate the petitioner as a member of the Executive Council under clause (vii) subsection (1) of section18 of the Act directed to submit the seniority list of teachers in Bhavnagar University Department, except Head of the Department and the said list was submitted to the Vice Chancellor. In the said seniority list the respondent no.4 was at serial no.15 and the petitioner was at serial no.18. The said seniority list showed that respondent no.4 was a member of Executive Council from 18.10.1998 to 6.11.2000 and Shri H.N. Waghela who was at serial no.16 was member of the Executive Council from 7.11.2000 to 17.10.2003. According to the learned counsel, the decision taken by the Vice Chancellor to nominate the petitioner as a member of the Executive Council was legal and proper and provisions of Statue will prevail over the provisions of the Act. SCA/7635/2005 10/28 JUDGMENT 7.2 That neither of the respondents have raised objection before the first respondent in respect of the power to entertain reference and even after passing of the order by the first respondent, the same was not challenged by them before any court of law. 7.3 That the Vice Chancellor by letter dated 11.4.2005 written to the Government sought clarification of the order passed by the Government, but the respondent no.1 by letter dated 12.4.2005 informed the respondent no.2 to implement the order of the first respondent on and from 12.4.2005 and it was informed that no further clarification was necessary. 7.4 That the respondent no.1 has no power or authority to entertain, deal with or to decide the application filed by the respondent no.4 against the order passed by the Vice Chancellor dated 7.11.2003 nominating the petitioner as a Member of the Executive Council. 7.5 According to these respondents, the subject matter of the order of the Government does not involve interpretation of any provisions of the Act or any statute and the petitioner was nominated by the Vice Chancellor and he was not “appointed” as envisaged by sub-clause (1), subsection (2) of section 67 of the Act. According to the learned counsel, the provisions contained in sub- clause (vii) of sub-section (1) of Section 18 of the Act and statute 81(i)(iii) are SCA/7635/2005 11/28 JUDGMENT clear and does not require any interpretation and decision of the Vice Chancellor is in relation to nomination of a teacher and not relating to election or appointment. 7.6 According to the learned counsel, the respondent no.1 has no power or authority to set aside the order of Vice Chancellor dated 7.11.2003 or to direct the respondent no.2 to appoint the respondent no.4 as a member of the Executive Council. 7.7 Thus, the learned Advocate for the respondent nos.2 and 3 supported the case of the petitioner. 8.0 Mr. A.D. Oza, Learned Government Pleader, appearing for the respondent no.1 submitted that the order passed by the State Government is just and proper and no interference is called for at the hands of this Court. He submitted that there is no violation of violation of fundamental rights of the petitioner. Apart from that University was heard and if at all it was open for University to inform the petitioner about the proceedings. 8.1 According to him the petitioner does not have any statutory or legal right pertaining to nomination to Executive Council. Since the petitioner was illegally and wrongly nominated, his cancellation as member does not amount SCA/7635/2005 12/28 JUDGMENT to violation of any right of the petitioner. 8.2 Mr. Oza submitted that the petitioner is not entitled to be nominated in view of provisions of section 18(1)(vii) of Bhavnagar University Act, read with Statute 81(1)(iii). 8.3 He further submitted that the respondent no.4 is senior to the petitioner and respondent no.4 has secured 12 votes as against 11 votes secured by the petitioner. 8.4 According to Mr. Oza, since the Act and the Statute provides for preparation of a “list of teachers”, for the purpose of nomination, rotation has to be made from amongst the persons named in such list and therefore the petition is misconceived and requires to be rejected. It is also submitted that brief reasons are given in the order. 9.0 Mr. B.B. Naik, learned Advocate appearing for the respondent no.4 supported the order of the State Government. He submitted that there is no violation of fundamental rights of the petitioner and that in view of the provisions of the Act and Statute the petitioner is not entitled to be nominated. He contended that reasons are briefly given in the order. SCA/7635/2005 13/28 JUDGMENT 9.1 He submitted that the Vice Chancellor is given no discretion or choice while making the nomination under the Act since the statute clearly directs that the list of teachers shall be prepared on the basis of seniority; that the respondent no.4 is senior to the petitioner and his name appears at serial no.1 and prior to the petitioner in the notification issued by the University with regard to the election of Court and that the petitioner has got less votes than the respondent no.4 in the election. 9.2 According to him, on a wrong interpretation of word “rotation”, the Vice Chancellor favoured the petitioner which is evident from the fact that the Vice Chancellor has allowed the petitioner to participate in the meeting in disregard to the order of the State Government and that if the true meaning of “Rotation” is given, the petitioner cannot be nominated by the Vice Chancellor. The learned Advocate, therefore, submitted that the petition deserves to be rejected. 9.3. The dictionary meaning of the word Rotation is “succession in definite order”. 9.4 While admitting the matter on 13.5.2005 this Court passed a detailed order wherein it is stated as under: SCA/7635/2005 14/28 JUDGMENT “... The present Special Civil Application is admitted only to consider the contention with regard to the fact whether the petitioner was required to be heard or not while quashing and setting aside the resolution of the University nominating the petitioner as it is the contention on behalf of the State Government that Section 67 does not contemplate any hearing and it is the case of the petitioner that the order is passed under Section 67(2)(b) of the Act. It is required to be noted that the impugned order is passed for and on behalf of His Excellency the Governor of Gujarat who is the Chancellor of Bhavnagar University.” 10. Mr. Naik has, in support of his contentions, relied upon the following decisions. 10.1 In the case of Nagendra Nath v. Commr. Of Hills Division reported in AIR 1958 SC 398. “(17) The next ground of attack against the order of the High Court, under appeal, was that the High Court had erred in coming to the conclusion that there had been a failure of natural justice. In this connection, the High Court has made reference to the several affidavits filed on either side, and the order in which they had been filed, and the use made of those affidavits or counter-affidavits. As already indicated, the rules make no provisions for the reception of evidence oral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several authorities have been left to their own resources to SCA/7635/2005 15/28 JUDGMENT make the best selection. In this connection, reference may be made to the observations of this Court in the case of New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd., 1957 SCR 98: ((S) AIR 1957 SC 232) (G). In that case, this Court has laid down that the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions. In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art. 227 of the Constitution.” 10.2 In the case of Ravi S. Naik Vs.Union of India and others, reported in AIR 1994 SC 1558 it is held that whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. Paragraphs 19, 20, 21, 22, 23 and 24 read as under: “19. Shri Sen has next contended that there has been violation of principles of natural justice inasmuch as in disregard of the provisions of R.7(3)(b)of the Disqualification Rules which provides for the comments being forwarded by the member concerned to the Speaker within a period of seven days of the receipt of the copy of the petition and annexures thereto; the appellants were given only town days time to file their reply to the petition. Shri Sen has urged that there has been violation of the principles of natural justice also for the reason that in the impugned order the Speaker has referred to certain extraneous materials and, circumstances, namely, the copies of the newspapers that were produced by Dr. Jhalmi at the time of hearing and the talks which the Speaker had with the Governor. Another grievance raised by Shri Sen was that the appellants were denied the opportunity to adduce their evidence before the Speaker passed the impugned order. SCA/7635/2005 16/28 JUDGMENT 20. Principles of natural justice have an important places in modern Administrative Law. They have been defined to mean “fair play in action”. (See: Smt. Maneka Gandhi v. Union of India, (1978) 2 SCR 621 at p 676: (AIR 1978 SC 597 at p 625), Bhagwati,J.). As laid down by this Court “they constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men” (Union of India v. Tulsi Ram, 1985 Supp(2) SCR 131 at p 225): (AIR 1985 SC 1416 at p.1456)). An order of an authority exercising judicial or quasi- judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of non-compliance with rules of natural justice. But while applying the principles of natural justice, it must be borne in mind that “they are not immutable but flexible” and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. 21. the approach of the English Courts has been thus summed up by Prof. Wade: “The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject-matter. The so-called rules of natural justice are not engraved on tablets of stone. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant there is no such thing as a merely technical infringement of natural justice.” [H.W.R. Wade : Administrative Law, 6th Edn., p.530] 22. Similarly Clive Lewis has stated: “The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing him SCA/7635/2005 17/28 JUDGMENT relief. It is necessary to keep in mind the purpose of the public law principle that has technically been violated, and ask whether that underlying purpose has in any event been achieved in the circumstances of the case. If so, the courts may decide that the breach has caused no injustice or prejudice and there is no need to grant relief. The courts may, for example, refuse relief if