ISHWAR CHANDRA versus SATYANARAIN SLNHA & ORS.

ISHWAR CHANDRA

.SATYANARAIN SlNHA & ORS.

March 14, 1972

[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.)

Universit;y of Saugar Act, 1946, s. 13(2)-Comml•tee of three to select pan\ll of names for pose of Vice.Chancel/or-Only two members of com1nittee present at meeting to selecl panel-In the absence of any provision as to quorum the recommendations of majority of members who are presenfl at the meeting is valid.

From panel of names recommended by Selection Cpmmittee eonstituted under s. 13(2) of the University of Saugar Act, 1946 the then Chancellor of the University appointed the appellant "' Vice-Chancellor. Under Ordinaiu:e No. 1 of 1970 the Governor of Madhya Pradesh !>~came the Chancellor of the Cniversity. Exercising bis powers of review under s. 43A of the Act the Governor, as Chancellor, after notice to the appellant, set aside bis appointment as Vice..Cbancellor on the ground that only two out of the three members of the Selection Committee were present when bis name was included in the panel. The appellant filed writ petition in the High Court. The High Court called fur too correspondence between the Chairman of the Committee and the member who was absent at the m~ting. On the lnsis. of Jetter written by the absent membelr to the Chairman, the High .Court came 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 8ourt,

HELD: (i) The High Court sustained the order of the ChaI)cellor on grounds other than those relied upon by him in that order, [for dismissing the writ petition in Ii mine]. The order made by the Chancellor was based entirely on the legality of the meeting where only two of the three mpmbers were present. There was nothing to show that the corres-pondence was persued l>y the Chancellor. Further, the correspondence did not support the assumption in the High Court's order that the Chair-man. was trying to keep out any member from the meeting. [803 D-Gl • 1

(ii)' If for one ·reason or the other one of the members of th! Com-mittee, 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 member_s would constitute valid meeting and matters considered thereat could not be held to be invalid. [80l HJ

C1VIL Al'!'ELLATE JURISDICTION : Civil Appeal No. 243 of '1971.

Appeal biy special leave from the judg!llent and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscel-laneous Petition No. 256 of 1970.

C. K. baphtary, L. M. Singhvi, S. K. Mehta, K. L. Mehta and K: R. Nagaraja, for the appellant.

B. Sen and/. N. Shroff, for respondents Nos. 1, 3 and 4.

S. S. Khandujd, S. K. Dhingra and Promod Swaroop for res~ pondent No. 2.

The Judgment of the Court was delivered by

P. Jaganmohan Reddy, 1. This is an appeal by special leave against the summary dismissal Of Writ Petition filed by the appel!i;nt against the order cf the Chancellor of the Saugar Uni-c versity dated the 15th June 1970 by which his appointment ~s Vice-Chancellor of that University was cancelled. It may at the outset be mentioned that the appointment of th~ Vice-Chancellor of the Saugar University is made by the Chan-cellor of that University under section 13 of the University of 0 Saugar Act, 1946 (hereinafter referred to as "the Act") from " panel of net less than three persons recommended by the Com-mittee constituted under sub-section (2) of that section. The Committee to be constituted under sub-section (2) was to co.nsis1 of three persons, two of whom shall ])~ elected by the Executive Council by single transferable vote from amongst pe•·sons n~t connected with the University or College and the third shall b~ I. nominated by the Chancellor who was also empowered to appoint one of them as Chairman of the Committee. It is unnecessa · · 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 Committee to submit panel of names for the appointment of Vice-Chancellor for the University was duly collstituted 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 Maciliya·Prade>h High Court while the third member Shri C. B. AgarWaIFRetired Judge of the Allahabad Hi~h Court was nominated by the 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 correspondence to fix convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of Aoril 1970. Justice Naik was, however, unable to attend the meeting and in his absence the other two ·pe•sons, Shri Shinde and Shri. A~awal met a~ Committee and submitted panel of names from which the Chancellor apooinied the •appe1lant on 7th April 1970 as Vice Chancellor with effect friim. the 22nd June 1970. for -period .·of five years. · The ari,,eilimt ~t 1.he. -tim~ c.f. t!:~ appointment, it seems, was acting as Vice-Chancellor. 5-LI06!SupcI/72

On the 9th of April 1970, the Governor of Madhya Pradesh, Shri K. .. Reddy · .promulgated Ordinance No. 1 of 1970 . by section 2 of which s_ub-section ( 1) of section 11 was substituted by new sub-sectio11 ( 1) whereunder the Governor of Madhya Pradesh was made an ex officio Chncellor 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 n before the date aforeiaid shall cease to hold office of the Chan-cellor and the Governor of Madhya Pradesh shall assume the said office. · By virtue of this Ordinance. Rajma!a Vijaya Raje Scindia ceased to be the Chancellor. On the 23rd April 1970, the Gov-ernor again passed another Ordinance by section 2 of which he substituted section 43 of the Act by new section 43. By §ection 3 new section 43A was also added. Section 4 made the amend-ments made by sections 2 and 3 to ope,ate retrospecitvely as from the commencement of the original Act. The amended sections 43 and 43A are as foJJows :-

"43. If any question arises whether any person h"' been duly appointed, elected, nominated or coopted as, or is entitled to be, memlt~r of any authority or other body of the University or any officer of the University, ihe matter shall be referred to the Chancellor wl]ose 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 statutei, the Ordinance o;· 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 Sec·etary 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 13 ( 2) of 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 tb.e meeting held on the 4th April with only two meQ!bers present and the decisions taken at the meeting were not legal. As consequence, the orders issued by the University oftice dated 14th April would have to be rescinded.

ISllWAR CHANDRA v .. s. SINHA (Jaganmohan Reddy; J.) 79!

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 s.hould not be taken. I am desired to request you to send your reply as early as possiple, and at the latest within week". To this letter the appellant sent reply on the 9th June 1970 after having earlier obtai~~d an extension of time. In that reply he tried to make out 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 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 oh 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 Tshwar Chandra as Vice-Chancellor of the University of Saugar with effect from the 22nd June 1970, for period of five years is not in acco· dance with provisions of sedan 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, I, the Chan-cellor of the University of Saugar, hefeby-

( i) cancel the aforementioned order dat~d the 7th April 1970 appointi.ng Shri Ishwar Chandra as Vice-Chancellor; and

(ii) direct that the committee be constituted for submission of panel in accordance with the provi;ions of section 13 of the said Act".

On the !st July 1970, 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 correspond-ence retween the Chairman and the members of the Selection Committee in respect of the meeting to be held to recommend the ~.ames for the appointment of Vice-Clia111cellor. The appellant, 1t 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.On the 19th September 1970 the application for leave to appeal to the Supreme Court was also rejected. In the latcer 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 secQndly that as thl' working Vice-Chancellor of the University, the petitioner had accfl6s to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded 01n 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 impugneJ, L that order valid. It is clear from the Governor's impugned orde:· that the appellant's appointment was held to be invalid becmso only two .members of the Committee we:e present at the meet>ng. The High Cour~ while holding that in the absence of any provision in the relevant enactment or the rules or regulations made there-under, majority of members of selection committee like ihe 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 requi-site for valid meebng but something diffecent., On that a•sump-tion it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to asce··ta1n whether in fact valid meeting had been called. Ai;:cordjng to the leamed Judges, Justice Naik had written to the Clnh:ian to say that he, the Chairman, was determined to hoict the m ~etiiJg presumably in his absence, and, therefore, the High Couct thought' that if the Chan· cellar, acting under section 43A of lhe Act formed the opinton 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 propose4 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 ex-' elude one of the members in this ca<e, Justice T. P. Naik, and seco~dly, that the Chancellor had, because of this exclusion, dec-lared the meeting held on the 4th April 1970 as not beip.g valid 0 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 n()t th'at any attempi was made by the Chairman to exclude one of the members. Neither the show. cause notice, nor the reply given blV the appellant to that notice, nor even the O•der of the· Chancellor indiCates any such ground as that assµmed lw the Hi~h Cn,;,.,: to 'fmm th?. basi• of the Chl!II' cellor's. order. 'The corresp00dence shows thai the ChairmaT

ISHWAR CHANDRA v. s. SINHA (Jaganmohah Reddy, 1.) 801

had written 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 meet-ing whiclt was proposed to be held on the 7th or 8th cannot be held and that he would let him know when new date was fixed. In .fact, Justice Naik replied o.n 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 nece;sary they may meet the next day, the 22nd March 1970. On the ! 6th March 1970 Shinde sent telegram to Justice Naik ask-ing him to wire if 4th April was suitJble at Indore. On the 18th March 1970, he again sent telegram to him saying : )'Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore". Justice Naik sent two tel~grams, 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 11th suitable at Saugar or Bhopal. He also wrote two letters on the 26'h 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 te!egram were conveyed to, me on the phQne today. It appears that 4th and 11th April both a"e suitable to you at Saugar and ahopal. As I told you before, I am recovering from th~ attack of virus fever and am, therefore. not strong enou2h to undertake car journey of 120 miles to Bhopal. The·e is no convenient plane to come to Bhopal either. Lf I come by nlane I shall have to stay ove• 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 ei•her bv Car or 'by Plane. The plane leaves Bhopal at about 9.00 a.m. and reach~s Indore at about 9.30 a.m. After attending the !peeting you can leave by plane which leaves for Bhooal at about 2.00 p.m. As far as Lunch is con-cerned, if vou let me \mow if you are ve~etarian or .non-vegeta'1an, .I can arran~e to give you lunch at mv place. If it impossible for you to come. to Indore I would reaue;t you to send me your su~·e~tfons l"\~ard­in~ suitable names for the pJst of Vice-Chancellor of the s~ugar University by the 3rd of Aoril. I would. however, request you to m-ake it convenient to atte!\d the meetin~ at Indore. I have al-eady sent you tel"-gram· to the effect that •he meeting iS fixed on the 4th

of April at Indore in the Meeting Room of the Univer-sity of Indore at 10.30 a.m."

Hoping to hear from you b(y the return of post and with kind regards".

Before this letter reached to the tclegrnm received by him, Justice Naik wrote 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 3ble 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 telegram on the 17th ci March 1970, that it would not be possible for me to attend it there on that date.

Anyway, knowing fuli weli 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 pres¢nce for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhapal would be more convenient to me personally.

I hope you have recovered from the effects of your illness biY now".

This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and ii we may say so, without justification that Shinde was determined to hold it there presumably in his absence. On the 27th Ma-ch 1970, the next day, he however, after the receipt of the letter cf the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justfoe Naik, however, tried to explain his difficulty. He said :-

"I am in receipt of your letter dated 24th March 1970. I am sorry to note that you have not yet reco-vere<! from the effects of your illness. I do hope you shall soon get well.

ISHWAR CHANDRA v. s. SINHA (Jaganmohan Reddy, J.) 8 Ol

As for my coming to Indore, I had c0nsidered 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, ther~ore, to·give up the idea of going by air, and as I cannot spare more than day. for the meeting, I had intimated to you that it would not . be possible for me to come to Lndore 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 lfy: letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the perscms 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'i 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 cl persons to be considered which prima facie negatives any iintention 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 persned by the Chancellor either at the time when the show cause notice was given to the appellant or at the time·of making the impugiied Order. It cannot, therefore, be assumed that the Governor was inJluenced by the above correspondence. It is rather unfortunate that the appellant's Writ Petition was dismissed in /imilfe and with-F out proper appreciation of all the relevant, facts. There is little doubt that the impugned Order made by the Chancellor was b"!Sed entirely on the legality of the meeting where only two out of three members were present when the ~ame of the appel'ant was recom-mended. The High Court delved into the correspondence to sus-tain the order of the Chancellor on grounds oth~r than those relied upon by him in that order for di,missiITTg the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held bly two of the three members on the 4th April 1970 was Ie-ral because sufficient notice was given to all the three membe's. If for ooe 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 regu[1]ation or any other 11 provision for fixing the quorum, the presence ·of the majority of the members would con.titute it va!in meeting and matters considered there at cannot be held to be invalid.

[1972] 3 S.C.R..

This proposltion is well recognised and is also so stated in Halsbury's Laws of England, Third Editi011 (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 revok-ing the appointment of the appellant is set aside and the appe'la.nt is declared to have been validly appointed as Vice-Chancellor o'. ll the Saugar University as from the 22nd June 1970.

Appeal allowed.