SCA/3015/2008 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3015 of 2008 With SPECIAL CIVIL APPLICATION No. 3304 of 2008 To SPECIAL CIVIL APPLICATION No. 3314 of 2008 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 ? ========================================================= AJAY NANALAL SONI LECTURER - Petitioner(s) Versus P PANEERVEL AND OR HIS SUCCESSOR IN OFFICE & 2 - Respondent(s) ========================================================= Appearance : MR VH DESAI for Petitioner(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, 3, MRS VD NANAVATI for Respondent(s) : 2, MR SHAILESH C PARIKH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/03/2008 COMMON ORAL JUDGMENT SCA/3015/2008 2/19 JUDGMENT 1. Rule. Ms. Trusha Patel learned AGP waives service of notice of rule for the State Authority in SCA Nos. 3304 to 3309 of 2008, Mr. Shivang Shukla learned AGP waives service of notice of rule for the State Authority in SCA No. 3310 to 3314 of 2008 and SCA No. 3015 of 2008, Mr. Shelat with Ms. Nanavati learned Counsel waives service of notice of rule for No. 2, and Mr. Parikh learned Counsel waives service of notice of rule for the University and its officers. The matters are finally heard. 2. The short facts of the case appear to be that on 24.10.2005, notification was published for holding the election of various constituency/category comprising of the University. The University in the present case is Gujarat University. As per the election programme, the last date for submission of the nomination form was 29.10.2005, and the election was scheduled to be held on 27.10.2005. The respondent No. 4-private party wanted to contest election, however he was at the relevant point of time in USA, therefore he sent his nomination SCA/3015/2008 3/19 JUDGMENT form and as the nomination form was not personally tendered, the same was not accepted. The private respondent Shri Thakkar challenged the said action by preferring SCA No. 22738 of 2005, and the said SCA was initially admitted, and the further action was made subject to the result of the petition. However, thereafter, in view of the provisions of the Section 54 of the Gujarat University Act (hereinafter referred as to the 'Act') providing the remedy of deciding the election dispute, this Court directed the State Government to decide the matter treating the petition, as if the election dispute raised against the non-acceptance of the nomination form. The pertinent aspect is that in the very petition, the petitioner therein who is private respondent herein, moved the application for amendment for joining 34 persons as party respondents, who were declared elected in teacher constituency, but as the main SCA was disposed of as per the above referred order, this Court did not pass any order on such application for amendment. It appears that the SCA/3015/2008 4/19 JUDGMENT State Government thereafter, considered the matter on 23.10.2007. The order came to be passed by the State Government whereby the action of the University of not accepting the nomination form of Shri Thakkar was found improper and therefore, appeal/application of Shri Thakkar was accepted, and the decision of the University of rejecting nomination form was set aside, and it was further observed that if the elections are held of the senate, the same are also set aside. It is under these circumstances, the petitioners have approached to this Court, by preferring petitions. 3. The pertinent aspect is that before the State Government nobody remained present on behalf of the University for contesting the petition. The further development is that based on the order passed by the State Government dated 23.11.2007, the University after getting legal opinion, vide order dated 8.2.2008 declared the election of whole teacher constituency comprising of 42 posts in the senate as illegal. Therefore, the petitioners have also consequently challenged SCA/3015/2008 5/19 JUDGMENT the said decision of the University, acting upon the decision of the State Government for setting aside the election. 4. Heard Mr. R.D. Dave with Ms. Vashi for Mr. Desai learned Counsel for the petitioners, Mr. Shivang Shukla as well as Ms. Trusha Patel learned AGP for the State Authority, Mr. Shelat with Ms. Nanavati learned Counsel for the University and its officers, and Mr. Parikh learned Counsel for the private respondent. 5. As such the following facts are undisputed. 1. The prayers made by the petitioner before the State Government in SCA No. 22378 of 2005 in paragraph 16 of the said petition reads as under: “16. (A) declaring the action of the respondents in refusing to accept the nomination form of the petitioner as arbitrary, contrary to the Act and Statutes and illegal, null and void and quashing and setting aside the same; (B) declaring the action of the respondents in no treating the nomination form of the petitioner sent through courier as valid one, arbitrary, contrary to the Act and Statutes and illegal, null and void and quashing and setting the same; SCA/3015/2008 6/19 JUDGMENT (C) declaring the action of holding election without accepting the nomination form and without permitting the petitioner to contest the election as arbitrary, illegal, null and void; (D) declaring the action of the respondents in preparing the electoral roll as on 30.6.2005 as contrary to Statute 9 and illegal, null and void; (E) directing the respondents to accept the nomination from of the petitioner sent through his representative and/or to treat the nomination form sent through courier as valid one and include his name in the list of the candidates and permit him to contest the election which is going to be held on 27.11.2005; and (F) directing the respondents to prepare electoral roll as on 31.12.2004 and to hold election.” 2. It was required for the State Government to examine the matter in light of the prayers made in the petition, since direction was given by this Court to treat the petition as dispute under Section 58 of the Gujarat University Act (hereinafter referred as to the 'Act'). The operative portion of the order of this Court at para 4 in SCA No. 22378 of 2005 reads as under: SCA/3015/2008 7/19 JUDGMENT “4. In the facts and circumstances of the case and in view of the above request, we dispose of this appeal with a direction to the Government to treat the appeal as having been filed on the date of filing of this petition which was 14.11.2005. The appellate authority shall hear and decide the appeal as expeditiously as possible and preferably within three months from the date of receipt of the writ of this Court.” Therefore, in light of the aforesaid directions, the State Government was required to decide the main petition, and the prayers made in the main petition while deciding the appeal/petition. 3. SCA No. 12725 of 2005 in SCA No. 22378 of 2005 was preferred by the original petitioner for impleading 34 persons as party respondents, who were declared elected from the teacher constituency pending he petition, by way of draft amendment, and no orders were passed by this Court, since the main petition itself was relegated/referred to the State Government under Section 58 of the Act. SCA/3015/2008 8/19 JUDGMENT 4. The University has neither remained present nor asked for adjournment, nor has made any submission in response to the petition for contesting or supporting the stand of the petitioner before the State Government. 5. The State Government before deciding the matter has neither directed the petitioner before it, nor of its own has directed all 34 persons, or other persons, who have been declared elected from the teacher constituency. As the result thereof no opportunity of hearing whatsoever has been given by the State Government under Section 58 of the Act, before deciding election dispute to the persons who were declared elected in the teacher constituency. 6. The petitioner before the State Government, had filed the nomination form in the teacher constituency, pertaining to commerce faculty and the total seats of commerce faculty were six. Had the nomination form of the petitioner been accepted, the petitioner could participate in the election of teacher constituency SCA/3015/2008 9/19 JUDGMENT representing commerce faculty only. 7. The materials for the number of candidates, votes secured by the elected candidates, pattern of voting its effect upon the elected candidates were neither called nor examined by the State Government and the same is apparent from the order of the State Government itself. 8. The order passed by the State Government is totally non-speaking order and no reasons whatsoever are mentioned, except stating that after examining all aspect, the action of the University of not accepting/rejecting nomination form of Shri Thakkar is improper. What aspect are examined, what is factual foundation, what is legal application and the consequential effect, etc., are not at all recorded by the State Government in the impugned order. 9. The decision of the University dated 8.2.2008 declaring the election of elected 42 persons in the teacher constituency is based on the opinion, but in the said opinion it has been expressly provided that the legality and validity of the order of the State Government is SCA/3015/2008 10/19 JUDGMENT not examined but the effect of the order of the State Government is examined. 6. In light of the aforesaid factual background, the matter is to be examined, keeping in view the scope and ambit of the power of the State Government under Section 58 of the Act. Section 58 of the Gujarat University Act, reads as under: “58. Disputes as to constitution of University authority or body.- Where any question arises as to- (1) the interpretation of any provision of this Act, or of any statute, Ordinance, Regulation or Rules or (2) whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University,- (a) it may be referred to the State Government if it relates to a matter specified in clause (1), and (b) it shall be referred to the State Government if- (i) it relates to a matter specified in clause (2), or (ii) if twenty members of the Court so require, irrespective of whether it relates SCA/3015/2008 11/19 JUDGMENT to a matter specified in clause (1) or clause (2), and the State Government shall after making such inquiry as it deems fit (including giving opportunity of being heard where necessary) decide the question and its decision shall be final.” 7. The Apex Court in case of Gujarat University v. N.U. Rajguru and other reported at 1988 (2) GLH 1, had an occasion to consider the provisions of Section 58 of the Act, and the relevant observations at para (5) reads as under: “... The legislative intent is manifestly clear that any dispute relating to the matters covered by Section 58 should be referred to the State Government for its decision and such decision shall be final. By enacting Section 58, the legislature has constituted a forum for determination of disputes in respect of matters specified therein. Since the “Court” is an authority of the University as declared by Section 15 of the Act, Section 58 provides an effective remedy for challenging the election of a member to the Court of the University. Any person aggrieved by the election of any member to the Court has right to challenge the same before the State Government by raising a dispute in accordance with Section 58...” SCA/3015/2008 12/19 JUDGMENT 8. Therefore, the power clothed upon the State Government by virtue of Section 58 of the Act, are as that of the election tribunal, who has to hold inquiry, and to decide the legality and validity of the action during the course of the election up to the stage of declaration of the election. It is by now well settled that the power of the election tribunal, or quasi judicial authority, who has to decide the legality and validity of election, are having all trappings of quasi judicial authority, but such powers are to be exercised, keeping in view the observance of the principles of natural justice to its fullest extent, of course depending upon the facts and circumstances of each case. It is hardly required to be stated that when the election tribunal is to exercise the power, which is consequently to result into unseating or setting aside the election of an elected representative, such powers are to be exercised with its wide aptitude. While exercising the power, the election tribunal is not only required to examine the legality and SCA/3015/2008 13/19 JUDGMENT validity of the action under challenge, but as the matter is to be considered after the declaration of the result of the election, it would also be required for the election tribunal to examine the question, as to whether such alleged illegality at the election has materially altered result of the election or not. The election tribunal, keeping in view the aforesaid aspect, consequently may be required to exercise its power for setting aside result of the election to that extent, i.e. the extent it has materially affected result, and thereby consequently setting aside the election of such elected representative/s. At least the wholesome exercise of the power for setting aside the whole election for any minor illegality or irregularity which has not materially affected the result at the election is not permissible. As observed earlier, after having recorded conclusion of illegality committed at the election, it would be required for the election tribunal to address itself on the question of material effect upon the election, and only SCA/3015/2008 14/19 JUDGMENT thereafter, the final relief for setting aside of the election could be granted to the extent required. 9. If the order of the State Government which is impugned in the present petition, is examined in light of the scope and ambit of the power of the election tribunal under Section 58 of the Act, it appears that the State Government has not only acted in breach of the principles of natural justice by not giving opportunity of hearing to the teachers, who were declared elected after having contested the election including the petitioners herein, but there is no application of mind whatsoever on the part of the State government, as if the exercises power by election tribunal. Neither the State Government has considered the regulation permitting the submission of the nomination form personally or through agent, nor the State Government has examined the aspect of the material effect on the result of the election and if yes to what extent. 10.Learned Counsel for the private respondent SCA/3015/2008 15/19 JUDGMENT attempted to submit that the State Government was bound by the order of this Court, and there was also direction to decide the matter within some time limit and therefore, it cannot be said that the State Government has committed any error in exercising the power. 11.I am afraid such contention can be accepted. The reason being that this Court never directed the State Government to exercise the power de- hors the statute, nor in breach of the principles of natural justice. 12.Learned Counsel for the respondent also submitted that if the State Government has committed error in case, it is so found by this Court, the petitioner before the State Government, who is respondent herein may not be made to suffer. He submitted that the election was held as back in the year 2005, and the respondent herein has not been able to get proper decision of the State Government. Therefore, he submitted that even if the decision of the State Government is set aside by this Court, the direction may be issued to the SCA/3015/2008 16/19 JUDGMENT State Government to decide within some reasonable time limit. 13.Such prayer is even otherwise not opposed by the petitioner nor by any of the respondent. 14.In my view the petitioner before the State Government who is respondent herein, would be justified in praying the disposal of the matter within some reasonable time. It further appears that the decision of the University is solely based on the order of the State Government and therefore, if order of the State Government cannot be sustained in the eye of law, the order of the University would have no leg to stand. 15.The learned Counsel for the private respondent also submitted that as per the decision of this Court in case of N.M. Rajguru v. Gujarat University, Ahmedabad and ors., reported at 1984 (1) GLR page 349, the constituency is of all 42 teachers and 42 persons are treated as a whole and therefore, if the illegality is found, in acceptance of the nomination form or rejection thereof for one member, may be of any faculty, such will have the repercussion on the whole SCA/3015/2008 17/19 JUDGMENT constituency, and therefore the view taken by the University for declaring the election of total 42 persons of teacher constituency is illegal, cannot be said as arbitrary, but in his submission the same is in consonance with the view taken by this Court in the above referred decision. Therefore, he submitted that the action of the University can be said as legal and valid. 16.In my view the University has just acted upon the order of the State Government. Further, as observed earlier, whether such illegality has materially altered the result of the election of few members or of all the members of the teacher constituency, cab be concluded by the election tribunal after examining the number of candidates, votes secured etc., and therefore, it is not required for this Court at this stage, to conclude on such aspect. However, it is admitted position that those 42 persons, who were declared elected of the teacher constituency, were not given any opportunity of hearing whatsoever by the State Government. SCA/3015/2008 18/19 JUDGMENT Therefore, if the order of the State Government cannot be maintained, in view of the non- observance of the principles of natural justice, consequentially the action of the University based on such order of the State Government also cannot be allowed to stand. Therefore the contention of the learned Counsel for the respondent cannot be accepted. At the same time it deserves to be observed that the election tribunal at the appropriate stage, shall examine the aspect as to whether there is illegality and if yes then to what extent it has materially affected the result of the election. 17.In view above, the impugned order passed by the State Government, and the consequential order of the University are quashed and set aside, with the further direction that the election petition before the State Government shall stand restored to file. The State Government shall give opportunity of hearing to all concerned, and shall decide the matter, keeping in view the observations made by this Court hereinabove, and in accordance with law as early as possible, SCA/3015/2008 19/19 JUDGMENT preferably within a period of four months from the receipt of the order of this Court. 18.The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. (JAYANT PATEL,J.) Suresh*