Full Judgment Text
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PETITIONER:
ISHWAR CHANDRA
Vs.
RESPONDENT:
SATYANARAIN SINHA & ORS.
DATE OF JUDGMENT14/03/1972
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
HEGDE, K.S.
CITATION:
1972 AIR 1812 1972 SCR (3) 796
1972 SCC (3) 383
ACT:
University of Saugar Act, 1946, s. 13(2)--Committee of three
to select panel of names for post of Vice-Chancellor--Only
two members of committee present at meeting to select
panel--In the absence of any provision as to quorum the
recommendations of majority of members who are present at
the meeting is valid.
HEADNOTE:
From a panel of names recommended by a Selection Committee
constituted under s. 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 s. 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
s. 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
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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]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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, S. 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.
S. S. Khanduja, S. K. Dhingra and Promod Swaroop for res-
pondent No. 2.
The Judgment of the Court was delivered ’by
P. Jaganmohan, Reddy, J This is an appeal by special
leave against the summary dismissal, of a Writ Petition
filed by the appellant against the order of the Chancellor
of the Saugar University dated the 15th June 1970 by which
his appointment as Vice-Chancellor of that University was
cancelled.
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
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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 :-
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"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
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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
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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
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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.
805