IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 1883 OF 2008 (MS) Prashant Khanduri ……….Petitioner. Versus D.A.V. P.G. College, Dehradun and others. …….Respondents. Mr. Arvind Vashisth, Advocate for petitioner. Mr. Sharad Sharma, Advocate for respondent no. 1 and 6. Mr. K.P. Upadhyay, Addl.Chief Standing Counsel for respondent no. 10. Mr. Alok Singh, Senior Advocate, assisted by Mr. D. Barthwal, Advocate for respondent no. 11. 31st March, 2009 Hon’ble Sudhanshu Dhulia, J. Petitioner by means of present writ petition has challenged the elections of the students’ union of D.A.V. (P.G.) College, Dehradun, for the year 2008-09, held in August, 2008. The petitioner was a candidate for the office of President of the students’ union in the said elections and he was defeated by respondent no. 11/Shri Rahul Rawat, who was elected as the President. 2. The grievance of the petitioner is that respondent no. 11 was not even eligible for contesting the students’ union election inasmuch as he was disqualified under the guidelines and the directions of the Supreme Court of India given in its order dated 22nd September, 2006 in the case of University of Kerala (1) Vs. Council, Principals’, Colleges, Kerala and others reported in (2006) 8 SCC Page 304. Earlier to the aforesaid order the Hon’ble Supreme Court vide its order dated 2 12.12.2005 had directed the Ministry of Human Resource Development, Government of India to constitute a committee, which would submit a report making recommendations and suggestions relating to the students’ union election in the country. The Ministry of Human Resource Development, Government of India in turn constituted a committee headed by Mr. J.M. Lyngdoh, who had submitted a report to the Apex Court and the Apex Court accepting the recommendations had passed an order on 22.9.2006, as an interim measure, directing that certain recommendations must be implemented. Two of these recommendations inter alia given by the Supreme Court under its guideline, which are directive in nature are as follows : “6.5.6. The candidate shall have one opportunity to contest for the post of office-bearer, and two opportunities to contest for the post of an executive member. 6.5.7. The candidate shall not have a previous criminal record, that is to say he should not have been tried and/or convicted of any criminal offence or misdemeanour. The candidate shall also not have been subject to any disciplinary action by the university authorities.” 3. The contention of the petitioner is that since respondent no. 11 had earlier contested election for the office of president for the year, 2004-05 and for the year, 2006-07 and was also disqualified for contesting election for the year, 2005-06 as he was caught adopting unfair means during the examination of M.Com (first year), therefore, he was not eligible to contest election for the office of President of students’ union for the year, 2008- 3 09. On the basis of the Lyngdoh Committee Report, which is now a part of the Apex Court’s order dated 22nd September, 2006 as the Apex Court in the said order had also directed that there shall be a Grievance Redressal Cell with the Dean Students Welfare / teacher in charge of student affairs as its Chairman and other faculty members as members of the Cell and all disputes relating to the students’ election in the first instance would be taken before this Grievance Redressal Cell. Moreover, the order of this Redressal Cell is appealable before the head of the Institute who in the present case would be the Principal of the College. Evidently, the petitioner had exhausted all these remedies, both before the Redressal Cell as well as before the Appellate Authority. Having failed before both these authorities, the petitioner has filed this writ petition before this Court. 4. At this juncture, it may be necessary to note that as an interim measure earlier the learned Single Judge of this Court on being prima facie satisfied with the case of the petitioner had passed an interim order directing that the respondent no. 11 shall not function on the post of the President of the Students’ Union of D.A.V. (P.G.) College, Dehradun for the year, 2008-09. This order was, however, challenged in Special Appeal and the Division Bench of this Court vide its order dated 9.1.2009 while disposing the Special Appeal had set aside the interim order passed by the learned Single Judge, but stated that the writ petition be disposed of very very expeditiously. On remand, therefore this Court has heard both the parties at length. 4 5. A preliminary objection has been raised by the respondent regarding the maintainability of the writ petition itself. It has been submitted that it is a matter of election of students’ union of a college, where the petitioner has participated in the election process and therefore, he has got no right to challenge the election since now he has been defeated. Neither any fundamental right nor any statutory right nor even common law right of the petitioner has been violated. It has been argued that the writ petition is not maintainable and the same is liable to be dismissed at the very threshold. 6. Regarding merit of the case, the respondents have argued that order of the Hon’ble Supreme Court was passed on 22nd September, 2006 whereas the elections for the year, 2006-07 were notified prior to it i.e. on 18.9.2006 and therefore, since the date of election was notified prior to the order of the Supreme Court and the Supreme Court’s order not being retrospective, it will have no effect on the fact as to whether respondent no. 11 had participated in the election for the year, 2006-07. The matter had also gone to the Advocate General, State of Uttarakhand, for his opinion. It is not known as to why it was sent for an opinion of the Advocate General but it appears from the records that the matter was sent for opinion, even before respondent no. 11, could file his nomination for the post of the President of the students’ union. The first opinion of the Advocate General is dated 12.8.2008 and the second is dated 14.8.2008 (nominations were made on 14.8.2008). Both these opinions have been annexed by the petitioner as Annexure -7 to the writ petition. Since these opinions 5 have been perused by this Court, it must be stated that the Advocate General of the State of Uttarakhand has nowhere stated in his opinion that the order dated 22nd September, 2006 passed by the Apex Court in University of Kerala (1) (supra) will not be applicable in the present situation rather it has been emphasized that the order of the Apex Court must be followed. However, it must be stated at this juncture that the legal opinions, in any case, are privileged communications and petitioner should not have annexed these opinions as a document to the writ petition. It is for this reason that this Court also refrains from passing any comments on these two legal opinions, which are annexed in the writ petition but suffice will it be to state that the learned Advocate General has nowhere stated in his opinions that the order of the Apex Court are not applicable in the present case. 7. Be that as it may, the Appellate Authority i.e. the Head of the Institute has heavily relied upon the opinions of the Advocate General and has come to the conclusion that there is no retrospectivity in the order of the Apex Court and therefore, even if respondent no. 11 had participated in the election of 2006-07, he would not be ineligible. 8. It must be clearly stated that both the Grievance Redressal Cell as well as the Appellate Authority i.e. the Head of the Institute are clearly wrong on this issue. Respondent no. 11 was ineligible for participation in the election for the year, 2008-09 not only for the fact that he had contested an election earlier and had failed, therefore, he could not be given a second opportunity to 6 contest election, as that would be clearly in violation of the order of the Apex Court and was particularly of its guideline no. 6.5.6, referred above. The retrospectivity part as explained by the appellate authority is also totally misconceived. It is an admitted case that the respondent no. 11 had contested election for the year, 2006-07, therefore, he was not eligible for contesting another election for the year, 2008-09. Merely because the notification for the election of the year 2006-07 had been issued prior to the date of the order passed by the Apex Court is no good ground for excluding the case of the respondent no. 11. The refuge taken by the authorities under a retrospectivity principle though ingenious is not correct, and they are clearly wrong in applying this principle to the present case. It also shows that both the Grievance Redressal Cell and the Appellate Authority have not been fair and impartial in discharging their duties. 9. Moreover, judgments which have the binding effect of law, do have a retrospective application, unless there is a specific “prospective application” of the judgment, stated in the order itself. Although it is true that the order dated 22.9.2006 of the Apex Court has set up guidelines, which are directive in nature, and no lis has been decided yet the Hon’ble Supreme Court in its direction has said “it is made clear that the recommendations made, which we have accepted to be adopted as an interim measure, shall be followed in all college/university elections, to be held hereinafter, until further orders”. Therefore there was no room for any doubt regarding the applicability of these recommendations, which are directive in nature in an 7 election pertaining to the year 2008-09. The authorities were totally misconceived in saying that though respondent no. 11 had participated in the election in the year 2006-07 but since the notification to that election was given on 18.9.2006 which is prior to the order of the Apex Court, which is of 22.9.2006 and therefore the election of 2006-07 and the participation of respondent no. 11 in that election will have no bearing in the matter. This is totally wrong. 10. A perusal of the order of the Apex Court and the guidelines given therein shows that the Apex Court was conscious of the fact that the students’ matter should not be unduly delayed and it should be finalized in the minimum prescribed time, that is why there is a short time of only 10 days between the date of filing of nomination papers and election and the matter to be decided by the Redressal Cell after 24 hours of the complaint. 11. The Hon’ble Supreme Court had indeed relied upon the fairness and impartiality of both redressal cell and the appellate authority i.e. the Head of the Institute and had reposed its trust on these authorities with a view that election dispute relating to students’ union election should not be agitated outside the college or university by means of a writ petition or by any other manner. However, this Court finds that the Redressal Cell as well as the Head of the Institute have not acted in the letter and spirit of the directions of the Hon’ble Supreme Court. Respondent no. 11 was clearly ineligible not only on account of the fact that he had participated in an earlier election, but there has been no reply from the respondent 8 no. 11 regarding the fact that that he was not allowed to contest election for the year, 2005-06 as he was caught cheating in M.Com previous examination. The reply of the respondent no. 11 to this averment is clearly evasive. 12. The only question before this Court is as to what relief should this Court grant once the Court has reached a finding that the elections to the students’ union have not proceeded in accordance with the direction of the Hon’ble Supreme Court. One view in this matter is to dismiss the petition on the ground that indeed no fundamental right or statutory rights or any common law right of petitioner have been violated. The petitioner had a remedy before the Grievance Redressal Cell and the Head of the Institute, which he has exhausted and the matter must come to an end. All the same, in the face of the glaring irregularities and the fact that the petitioner did not get a fair deal before the Grievance Redressal Cell or the Appellate Authority, should not this Court interfere as indeed the directions of the Supreme Court having the force of law have been violated although they have to be followed by every Court, Tribunal or the authorities, which have to perform quasi judicial work. The directions of the Supreme Court have not only been wrongly interpreted, in fact they have been violated in its letter and spirit. This Court, therefore, has no option but to declare that the election of the respondent no. 11 for the office of President of students’ union of D.A.V. (P.G.) College, Dehradun for the academic year, 2008-09 was in violation of law and therefore, it is set aside. Also the orders of the Redressal Cell and that of the head of the Institute dated 29.8.2008 9 and 16.9.2008 respectively are quashed. Respondent no. 11 is therefore restrained from functioning as the President of the students’ union of D.A.V. (P.G.) College, Dehradun. 13. This case cannot be closed without a caveat and that is that ordinarily these matters should not be interfered in a writ petition as the main purpose of the students in a university or a college is to study the courses for which they have taken admission and not to waste their precious study time in chasing legal remedies and therefore, normally such matters should not be agitated in a writ petition. However, the action of the authorities here is clearly in violation of the Supreme Court’s order, and therefore, this Court was constrained to interfere in this matter. It must be stated that each case of such nature has to be studied on its individual merit and facts and only where the mistake on the part of the Redressal Cell or the Appellate Authority is so glaring as in the present case, the matter may be interfered. 14. The real purpose of students, who enter in a college or university is to get their degree and prepare themselves for vocation or career, which they want to pursue. It is also true, however, that these universities and colleges are the places where leaders of future are prepared and these universities and colleges give students the first experience in politics, which if regulated well, is not only healthy in a democratic tradition but necessary as well, particularly in a country like India where our whole political system is built around democratic republic thinking. Therefore, it is also necessary that students who participate in election get a fair deal. A great trust has been reposed on the authorities such as redressal cell and the head of the 10 institute in the order of the Hon’ble Supreme Court and it is expected that such authorities will act in a fair, just and transparent manner. Since this has not happened in the present case, interference became necessary. For this reason, the election of the respondent no. 11 for the post of President of students’ union has been declared illegal, inasmuch as he was not eligible to contest the election and therefore, his election stands cancelled. However, the equitable reality of the matter is that the students or the staff of the college should not unnecessarily be punished once again and they must not undergo the process of election of the students’ union afresh. In the normal course election should have taken place in the month of August/September, 2009, therefore, the mid term elections to the post of President of students’ union are not necessary and in fact should not be made. Rest of the office bearers of the students’ union will continue on their respective posts and next election of the students’ union will take place in its normal course whenever they are due. Only the president of the students’ union i.e. respondent no. 11 will not function in the students’ union for the present. The election of the new President now will only be held in the next election whenever it is due. By the same logic, there will be no ineligibility for the petitioner to stand in the election of the President, as and when the election is due and the fact that he has stood in the election of the students’ union in the year, 2008 will not be a bar, if otherwise he is eligible. 15. This writ petition is decided accordingly. However, there is no order as to costs. (Sudhanshu Dhulia, J.) 31.3.2009 Rathour