SCA/9320/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9320 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= NAISHADH BHUPATBHAI DESAI & 1 - Petitioner(s) Versus SOUTH GUJARAT UNIVERSITY & 5 - Respondent(s) ========================================================= Appearance : MR DEVANG T SHAH for Petitioner(s) : 1 - 2.MR JM HOSHANG for Petitioner(s) : 1 - 2. TANNA ASSOCIATES for Respondent(s) : 1, M/S PATEL ADVOCATES for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2 - 4, 6, MR SHIVANG SHUKLA, AGP for Respondent(s) : 5, RULE SERVED for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/04/2008 ORAL JUDGMENT 1. The petitioners have preferred the petition for SCA/9320/2000 2/6 JUDGMENT appropriate writ to quash and set aside the assignment of Faculty of Rural Studies to respondent No.4 and it is also prayed to quash and set aside the election of respondent No.4 as the Dean of Faculty of Rural Studies. 2. It appears that when the petition was taken up for hearing at the initial stage on 24.9.2001, after hearing both the sides, this Court (Coram: R.K. Abichandani, J.) had passed the following order:- “1. In this petition, while issuing rule on 4-9-2000, notice as to interim relief was issued and the matter has been coming up on board from time to time for hearing on the question of interim relief. The petitioners have challenged the assignment of the respondent No.4 to the Faculty of Rural Studies and have also challenged his election as Dean of Faculty of Rural Studies on the ground that the respondent No.4 was a teacher in Gujarati which was not a subject in the Faculty of Rural Studies and therefore, he could not have been allotted to the Faculty of Rural Studies nor could he have been elected as the Dean of that Faculty. 2. By the circular dated 7-7-2000 at Annexure `B' to the petition issued by the Registrar of the South Gujarat University, it was declared that the respondent No.4 Shri Vasantbhai Hiriyabhai Gamit who was appointed by the State Government by its order dated 7-7-2000 as a Member of the Senate in the vacancy that had arisen on the resignation of Mr. A.D.Trivedi became the Member of the Senate under section 16(1) Class II (B) of the South Gujarat University Act. By circular dated 10th July 2000 at Annexure `C' to the petition, it was notified that, pursuant to the resolution of the Syndicate dated 30th June 1998 (item No.19), the Vice Chancellor on the basis of option exercised by Shri Gamit assigned him to the Faculty of Rural Studies. By notification dated 31st July 2000 at Annexure `O' to the petition, the respondent No.4 was declared elected as the Dean of the Faculty of Rural Studies under section 25(1) of the said Act. The question that arises for deciding as to whether the interim relief should be granted for restraining the respondent No.4 from working as a Dean of the Faculty of Rural Studies, is whether the respondent No.4 is, prima facie, eligible to continue to hold that post in context of the provisions of the said Act. SCA/9320/2000 3/6 JUDGMENT 3. Admittedly, subject of Gujarati is not there in the Faculty of Rural Studies and that subject falls in the Faculties of Arts, Commerce and Science. According to the petitioner, option of the Respondent No. 4 could have been asked only in respect of one of those faculties in which Gujarati was a subject and he could not have been asked to opt for the Faculty of Rural Studies. 4. The contention raised on behalf of the University is that the respondent No.4 was nominated by the State Government to the Senate under section 16 Class II (Ordinary Members) (item `B') of the said Act and therefore, the provisions of section 23(3) were not attracted in his case, and he could be assigned to any of the Faculties irrespective of the fact whether he was a teacher in the subject not falling within that Faculty. It was submitted that a member of the Senate appointed by the State Government, who is a teacher in any faculty, can be assigned to any other faculty. In other words, a teacher of Faculty of Arts may be assigned even to Faculty of Medicine or Faculty of Law and so on, and can ultimately become a Dean of that Faculty. To say the least, it would be an astounding proposition that a teacher who has nothing to do with the subjects of a different faculty should be assigned to that faculty and can become its Dean and supervise and coordinate the work of the different Boards of studies under the Faculty pertaining to the subjects under the Faculty. That does not appear to be the object of the provisions of the said Act, as shall be presently seen. Section 23 of the said Act deals with Faculties and their functions and under sub-section (1) thereof, it is provided that the University shall include the Faculties of Arts, Education, Science, Technology including Engineering, Agriculture, Law, Medicine, Commerce and Rural Studies and such other Faculties as may be prescribed by the Statutes. Each Faculty shall comprise such subjects as may be prescribed by the Statutes. Thus, there is a clear nexus between the subjects and their respective faculties. Sub-section (2) of section 23 of the said Act provides that, each Faculty shall consist of; (i) such of the members of the senate as are assigned to the Faculty by the Syndicate; (ii) the Chairmen of the Board of Studies for the subjects with which the Faculty is concerned; and (iii) one member elected by each such Board of Studies from amongst its members other than the Chairman; provided that no member of the Senate shall be assigned to more than one Faculty. Sub-section (3) of section 23 provides that, a teacher in a subject included in more Faculties than one shall, within one month from the date on which he becomes a member of the Senate, select by intimation in writing to the Registrar, any one of such Faculties to which he wishes to be assigned. If he fails to make such selection, the Syndicate shall assign to him any one of such Faculties. A selection or assignment so made shall be irrevocable for the entire term of his membership. It was submitted that sub-section (3) of Section 23 had no application to the instant case and the Syndicate had ample power under clause (i) of sub-section (2) of section 23 to assign any member of the Senate to any faculty. If clause (i) of sub-section (2) of section 23 is to be read in isolation, the provision of sub-section (3) of section 23 would SCA/9320/2000 4/6 JUDGMENT become wholly redundant. Moreover, the provision of section 24 which refers to powers and duties of the Faculty indicates that the Faculty exercises general control and power of regulation and is responsible for the maintenance of standards of teaching and examinations of the University for the subjects assigned to the Faculty. Thus the nexus between the subjects and the Faculty is clearly seen even in section 24 of the said Act and an outsider who has nothing to do with the subjects of a Faculty can hardly contribute towards the standards of teaching and examinations of the university for the subjects which are assigned to it. The Faculty exercises the powers and duties which are spelt-out in sub-section (2) of section 24 which include making of regulations in consultation with the Board of Studies, laying down courses of study and making of regulations regarding special courses of study and so on. Even the proposals for allocating subjects of the Faculty are within the domain of the Faculty. A person who is not concerned with the subjects of the faculty can hardly be expected to discharge his duties on any of the items covered by section 24 of the said Act. In other words, it could never have been the intention of the legislature to assign a person, who has no knowledge of the subject, to the membership of a faculty which teaches altogether different subjects or to enable such a person to become the Dean of that Faculty. Under section 25(1) of the said Act, it is provided that, there shall be a Dean of each Faculty who shall be elected by the Faculty from amongst its members, provided that he is a member of the senate and also a teacher or a principal. Reliance on Statute No. 108(1) on behalf of the University can hardly assist the University. Under that provision, the Registrar is required to, as soon as the names of the new members of the Senate are announced, ask each such member to give him in writing within thirty days the Faculty to which the member wishes to be assigned. This obviously is in context of teacher members referred to sub-section (3) of section 23 and it cannot be construed so as to override that statutory provision. Admittedly, the respondent No.4 was a teacher in Gujarati and as stated by the learned counsel appearing for both the sides, Gujarati is not a subject in the Faculty of Rural Studies. There is, therefore, no question of his being assigned to the Faculty of Rural Studies as he could not have even opted for assignment to that Faculty when the subject in which he was a teacher was admittedly not included thereunder. 5. The respondent No.4 is is served, but has not cared to appear though of course the matter has been argued on behalf of the University from his angle also by trying to justify the election of the respondent No.4 as the Dean of the Faculty of Rural Studies. Since the statutory provisions do not warrant such alien teacher person to function as a Dean in a Faculty in which the subject of which he is a teacher does not fall, the respondent No.4 cannot be allowed to function as a Dean of that Faculty. 6. By way of interim relief, it is, therefore, ordered that the respondent No.4 will not function as a Dean of the Faculty of Rural Studies during the pendency of this petition. Direct service is SCA/9320/2000 5/6 JUDGMENT permitted.” 3. Therefore, by virtue of the aforesaid interim order, respondent No.4 was restrained from functioning as the Dean of Faculty of Rural Studies during the pendency of the petition. It further appears that respondent No.4, Shri Vasantbhai Hiriyabhai Gamit was to assume office vide the declaration of the Incharge Vice Chancellor of the University dated 7.7.2000, in place of Shri Ashwinbhai Dahyabhai Trivedi, who had resigned. The original tenure of the office of Shri Trivedi, in whose place respondent No.4 was declared as the Member of Senate, was for a period of five years from 23.5.1997. The said period of five years, in any case, has expired on 22.5.2002. Since the placement of respondent No.4 was in the Syndicate and the tenure of the person vice whom respondent No.4 was appointed, in any case, was up to 22.5.2002 and further Respondent No.4 was restrained from functioning pursuant to the aforesaid interim order and now as the period has expired of the office on 22.5.2002, it can be said that the present petition has become infructuous by afflux of SCA/9320/2000 6/6 JUDGMENT time. Hence, the petition is disposed of as having become infructuous. Rule discharged. I.R. vacated. No order as to costs. 25.4.2008 (Jayant Patel, J.) vinod