Judgment Case ID: 3070

Judgment:
Appeal No. 243 of 1971. Appeal by special leave from the judgment and order dated September 3	 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970. 797 C. K. Daphtary	 L. M. Singhvi	 section K. Mehta	 K. L. Mehta and K. R. Nagaraja	 for the appellant. B. Sen and I. N. Shroff	 for respondents Nos. 1	 3 and 4. section section Khanduja	 section K. Dhingra and Promod Swaroop for res pondent No. 2. It may at the outset be mentioned that the appointment of the Vice Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act	 1946 (hereinafter referred to as "the Act") from 1 panel of not less than three persons recommended by the Committee constituted under sub section (2) of that section. The Committee to be constituted under sub section (2) was to consist of three persons	 two of whom shall be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third shall be. nominated 'by the 'Chancellor who was	 also empowered to appoint one of them as Chairman of the Committee. It is unnecessary to refer to other provisions of this section because these are not relevant for the purpose of this appeal. It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice Chancellor for the University was duly constituted consisting of two persons elected by the executive Committee of the University	 namely	 G. K. Shinde	 Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the	 Allahabad High Court was nominated by tfie Chancellor	 Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the Chairman of the Committee. The Chairman thereafter appears to have carried on a correspondence to fix	 a convenient place and time for the meeting	 which was ultimately fixed at Indore on the 4th of April 1970. Justice Naik was	 however	 unable to attend the meeting and in	 his absence the other two persons	 Shri Shinde panel of and Shri Agrawal met; as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for	 a period of five years. The appellant at the time of the appointment	 it seems	 was acting as Vice Chancellor. 1061SupCI/72 798 On the 9th of April 1970	 the Governor of Madhya Pradesh	 Shri K. C.	 Reddy promulgated Ordinance No. I of 1970 by section 2 of which sub section (1) of section II was substituted by a new sub section (1) where under the Governor of Madhya Pradesh was made an ex officio Chancellor of that University. By section 3	 it was provided that as from the date of the coming into force of that Ordinance	 the Chancellor in office immediately	 before the date aforesaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office. By virtue of this Ordinance Rajmata Vijaya Raje Scindia ceased to be. the Chancellor. On the 23rd April 1970	 the Governor again passed another Ordinance by section 2 of which	 he substituted section 43 of the Act by a new section 43. By section 3 a new section 43A was also added. Section 4 made the amendments made by sections 2 and 3 to operate retrospectively as from the commencement of the original Act. The amended sections 43 and 43A are as follows "43. If any question arises whether any person hi			 been duly appointed	 elected	 nominated or coopted as	 or is entitled to be	 a member of any authority or other body of the University or any officer of the University	 the matter shall be referred to the Chancellor whose decision thereon shall be final. 43A. The Chancellor may	 either on his own motion or on the application of any party interested	 review any order passed by himself or his predecessor in office if he is of the opinion that it is not in accordance with the provisions of this Act	 the statutes	 the Ordinance or the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit." After the above Ordinances were promulgated	 the Secretary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows : "The question has come up before the Chancellor whether the meeting of the committee constituted by his predecessor under section 1 3 (2) (9 the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal	 and whether the recommendations made by the committee at that meeting were legally valid. The Chancellor has been advised that the meeting held on the 4th April with only two men present and. the decisions taken at the meeting .were not legal. As	 a consequence	 the orders issued by the University office dated 14th April would have to be rescinded. 799 Before the Chancellor takes action in accordance with legal advice	 he has desired that you should be asked if you have anything to state why such action should not be taken. I am desired to request you to send your reply as early as possible	 and at the latest within a week". To this letter the appellant sent a reply on the 9th June 1970 after having earlier obitained an extension of time. In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made 'by his predecessor in similar circumstances. The Governor did not	 however	 accept the appellant 's plea but passed the following impugned orders on the 15th June 1970 : "WHEREAS	 on applications made in that behalf	 the Chancellor is of the opinion that order dated the 7th April 1970	 passed by his predecessor in office appointing Shri Ishwar Chandra as Vice Chancellor of the University of Saugar with effect from the 22nd June 1970	 for a period of five years is not in accordance with provisions of section 13 of the University of Saugar Act	 1946 (XVI of 1946) (hereinafter referred to as the said Act); NOW	 THEREFORE	 in exercise of the powers conferred by section 43A of the said Act	 1	 the Chancellor of the University of Saugar	 hereby (i) cancel the aforementioned order dated the 7th April 1970 appointing Shri Ishwar Chandra as ViceChancellor; and (ii) direct that the committee be constituted for submission of panel in accordance with the provisions of section 13 of the said Act". On the 1st July 1970	 a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the correspondence between the Chairman	 and the members of the Selection Committee in respect of the meeting to be held to recommend the names for the appointment of a Vice Chancellor. The appellant	 if seems	 produced the correspondence with an affidavit on the 25th July 1970 stating that he had obtained the correspondence from the Chairman of the Committee. the former Chief	Justice Shinde. On the ' 3rd of September 1970 'rule nisi was refused. 800 On the 19th September 1970 die application for leave to appeal to the Supreme	 Court was also rejected. In the latter order two facts had 'been stated which have been challenged as incorrect. The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secondly.that as the working Vice Chancellor of the University	 the petitioner had access to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded on some of them. Though there is some justification in these contentions what has to be seen is whether the order rejecting the Writ Petition was justified	 and if so	 now that the order of the Chancellor has been impugned	 i.e that order valid. It is clear from the Governor 's impugned order that the appellant 's appointment was held to be invalid because only two members of the Committee were present at the meeting. The High Court while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder	 a majority of members of a selection committee like the one in the case before them would constitute the quorum	 however presumed that the question for consideration of the Chancellor was not merely one relating to the existence of the quorum requisite for a valid meeting but something different. On that assumption it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to ascertain whether in fact a valid meeting had been called. According to the learned Judges	 Justice Naik had written to the Chairman to say that he	 the Chairman	 was determined to hold the meeting presumably in his absence	 and	 therefore	 the High Court thought that if the Chancellor	 acting under section 43A of the Act formed the opinion that the meeting held on that date was not legal	 it cannot be said that there was no prima facie material for the formation of that opinion	 reached by him after giving to the	 petitioner an oppor tunity to state why the action proposed should not be taken. The assumption in this order rejecting the Writ Petition is not warranted	 firstly	 because the correspondence does not show that there was any deliberate attempt made by the Chairman to exclude one of the members in this case	 Justice T. P. Naik	 and secondly	 that the Chancellor had because of this exclusion	 declared the meeting held on the 4th April 1970 as not being valid. We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and not that	any attempt was made by the ' Chairman	 to	 exclude one of the members	 Neither the showcase notice	 nor the reply given by the appellant to that notice	 nor even: the order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the	Chancellor 's order. The correspondence shows that the Chairman 801 had written a letter on the 12th February 1970 in which 	 he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to consider the names for the panel. Later on the 20th February 1970	 he wrote another letter saying that the other member was abroad	 and therefore	 the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed. In fact	 Justice Naik replied on the 27th February 1970 acknow ledging these letters and asking him to let him know the date of the meeting as and when fixed. On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if necessary they may meet the next day	 the 22nd March 1970. On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore. On the 18th March 1970	 he again sent a telegram to him saying : "Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore". Justice Naik sent two telegrams	 one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and lath suitable at Saugar or Bhopal. He also wrote two letters on the 26th and 27th to Shinde. Shinde had earlier written on the	 24th March 1970 to Justice Naik in which he said as follows "The contents of your telegram	 were conveyed to me on the phone today. It appears that 4th and 11th. April both are suitable to you at Saugar and Bhopal. As I told you before	 I am recovering from the attack of virus fever and am	 therefore	 not	 ' strong enough to undertake a car journey of 120 miles to	 Bhopal. There is no @ convenient plan 	to come: to Bbopal either. If I come by plane I shall have to stay over the night at the Circuit House and as I am still on diet	 the Circuit House food will not suit me. As you can come up to Bhopal you can easily come to Indore either by Car or 'by Plane. The plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 am. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned	 if you let me know if you are vegetarian or non vegetarian	 I can arrange to give you lunch at my place. If it is impossible for You to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice Chancellor of the Saugar University by the 3rd of April. I would	 however	 request you to make it colonyient to attend the meeting at Indofe. I have already sent you a tele gram to the effect that the meeting is fixed on the 4th 802 of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m." Hoping to hear from you by the return of post and with kind regards". Before this letter reached to the telegram received by him	 Justice Naik wrote a letter to Shinde as follows : "I am in receipt of your telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970	 at 10.30 a.m. at Indore in the Indore University. I regret my inability to be present at Indore on the date and time specified	 though I may be able to attend the meeting if 'the venue is changed to Bhopal. It is very surprising that you should have fixed the meeting on the 4th of April at Indore	 even though I had informed you by a telegram on the 17th of March 1970	 that it would not be possible for me to attend it there on that date. Anyway	 knowing full well that it would not be pos sible for me to be present at Indore at 10.30 a.m. on April 4	 1970	 you seem determined to hold the meeting there presumably in my absence. I can only regret your decision. If you are still interested in having my presence for the meeting	 you may fix it either on the 4th or the	 11th April 1970 at Saugar or Bhopal	 though Bhopal would be more convenient to me personality. I hope you have recovered from the effects of your illness by now". This letter shows that though Justice Naik knew about the illness of Shinde	 he somehow seems to have assumed	 and if we may say so	 without justification that Shinde was determined to hold it there	 presumably in his absence. On the 27th March 1970	 the next day	 he however	 after the receipt of the letter of the 24th instant from Side did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik	 however	 tried to explain his difficulty. He said : "I am in receipt of your letter dated 24th March 1970. 1 am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get well. 803 As for my coming to Indore	 I had considered the possibility of my going there by. air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had	 therefore	 to give up the idea of going by air	 and as I cannot spare more than a day for the meeting	 I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University. As for your kindly suggestion that I may by a letter suggest names to you for your consideration	 I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act. With kind regards". This letter clearly negatives the assumption in the High Court 's order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand	 Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was persued by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot	 therefore	 be assumed that the Governor was influenced by the above correspondence. It is rather unfortunate that the appellant 's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine	 which in our view	 was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend	 that does not make the meeting of others illegal. In such circumstances	 where there is no rule or regulation or any other provision for fixing the quorum	 the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid. 804 This proposition is well recognised and is also so stated in Halsbury 's Laws of England	 Third Edition (Vol. IX	 page 48	 Para 95). It is	 therefore	 unnecessary to refer to any decisions on the subject. In the view we have taken	 the appeal is allowed with costs against respondent 3	 the order of the Chancellor revoking the appointment of the appellant is set aside and the appellant is declared to have been validly appointed as Vice Chancellor Of the Saugar University as from the 22nd June 1970. G.C. Appeal allowed.

Summary:
From a panel of names recommended by a Selection Committee constituted under section 13(2) of the University of Saugar Act	 1946 the then Chancellor of the University appointed the appellant as Vice Chancellor. Under Ordinance No. 1 of 1970 the Governor of Madhya Pradesh became	 the Chancellor of the University. Exercising his powers of review under section 43A of the Act the Governor	 as Chancellor	 after notice to the appellant	 set aside his appointment as Vice Chancellor on 'the ground that only two out of the three members of the Selection Committee were present when his name was included in the panel. The appellant filed a writ petition in the. High Court. The High Court called for the correspondence between the Chairman of the Committee and the member who was absent at the meeting. On the basis of a letter written by the absent member to the Chairman	 the High Court can to the conclusion that the member had been deliberately kept out of the meeting and held that the Chancellor was justified in the opinion formed by him under section 43 (A). Allowing the appeal	 this Court	 HELD : (i) The High Court sustained the order of the Chancellor on grounds other than those relied upon by him in that order	 for dismissing the writ petition in limine]. The order made by the Chancellor was based entirely an the legality of the meeting where only two of the three members were present. Then was nothing to show that the corres pondence was persued by the Chancellor. Further	 the correspondence did not support the assumption in the High Court 's order that the Chairman was trying to keep out any member from the meeting. [803 D G] (ii) If for one reason or the other one of the members of the Committee	 after due notice	 could not attend	 it did not make the meeting of the others illegal. in such circumstances where there was no rule or regulation or any other provision for fixing quorum in the presence of the majority of the members would constitute a valid meeting and matters considered thereat could not be held to be invalid. [803 H]