Charutar Vidya Mandal vs Sardar Patel University
2021 Latest Caselaw 13465 Guj

     C/SCA/7770/2021                              JUDGMENT DATED: 06/09/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 7770 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy                NO
      of the judgment ?

4     Whether this case involves a substantial question                NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

=============================================
                        CHARUTAR VIDYA MANDAL
                                Versus
                        SARDAR PATEL UNIVERSITY
=============================================
Appearance:
MR DHAVAL DAVE, SENIOR ADVOCATE WITH UDIT N VYAS(9255) for
the Petitioner(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH SUDHANSHU A
JHA(8345) for the Respondent(s) No. 1
=============================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                           Date : 06/09/2021

                           ORAL JUDGMENT

1. Heard learned Senior Advocate Mr.Dhval Dave assisted by Mr.Udit Vyas, learned advocate for the petitioner and learned Senior Advocate Mr.Shalin Mehta assisted by Mr.Sudhanshu Jha, learned advocate for the respondent.

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2. Rule returnable forthwith. Learned advocate Mr.Sudhanshu Jha waives service of notice of rule for respondent - University.

3. The controversy raised in this petition is in narrow compass and therefore, with the consent of the learned advocate for the respective parties the matter is taken up for hearing.

4. By this petition the petitioner has prayed for the following relief :

"(a) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction upon the Sardar Patel University, the respondent herein, to endorse and confirm the membership of the representatives of the petitioner to the Syndicate for the tenure of April 1, 2021 to March 31, 2024 notified by the petitioner vide the communication dated March 30, 2021 and thereupon, be pleased to direct the Sardar Patel University, the respondent herein, to issue the necessary notification under Section 22(1)(f) of the Sardar Patel University Act, 1955;

(b) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction upon the Sardar Patel University, the respondent herein, to recall and annul its communication dated April 19, 2021 and April 25, 2021 forthwith;

(c) That pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to permit the representatives of the petitioner to attend the meetings of the Syndicate of the Sardar Patel University, the respondent herein, and exercise all powers available to them as members of the Syndicate of the Sardar Patel University on such terms and conditions and this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case;

(d) Alternatively, pending admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to restrain the Syndicate of the Sardar Patel University, the respondent herein, from convening and conducting nay meeting;

(e) That this Hon'ble Court may be pleased to award the costs of the present petition to the petitioner, and

(f) That this Hon'ble Court be pleased to pass such other and further relief as the nature and circumstances of the case may demand."

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5. The brief facts of the case may be summarized as under :

5.1 The petitioner is a Society registered under the Societies Registration Act, 1860 as well as a Public Trust registered under the provisions of the Bombay Public Trusts Act, 1950. The petitioner was established in the year 1945 for the purpose of imparting of education and is having under its banner various educational institutions from the level of School to the level of post-graduation.

5.2 The respondent - University is established under the provisions of the Sardar Patel University Act, 1955 (for short "the Act, 1955").

5.3 It is the case of the petitioner that the office bearers of the petitioner are ex-officio members of the Senate of the respondent - University which is the apex body as per Section 15 of the Act, 1955. According to the petitioner, the petitioner is entitled to elect two members as per clause (f) of Sub- section (1) of Section 22 of the Act, 1955 in the Syndicate of the respondent - University which is the executive authority.

5.4 It is the case of the petitioner that the election of two representatives as members of the Syndicate of the respondent - University is required to be made as per its own internal procedure and the respondent - University has no role to play in the election of two members to be elected by the petitioner.

5.5 As the Syndicate of the respondent - University was due for its reconstitution with effect from 1st April, 2021, a

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communication was addressed to the petitioner on 3 rd March, 2021 to elect two representatives to the Syndicate as per Section 22(1)(f) of the Act, 1955.

5.6 The petitioner following its bye-laws and with consultation of the Governing Body the Chairman of the petitioner nominated two members as elected representatives to the Syndicate of the respondent - University.

5.7 Such nomination was done by the petitioner as per clause 18(l) of the Rules and Regulations of the petitioner which provides the mode of electing members as its representatives to the various institutions and accordingly the Governing Body of the petitioner in consultation with the managed Chairman empowered the Chairman to nominate the members of the petitioner to various institutions where the petitioner is required to elect the representatives. Thus, according to the petitioner, instead of conducting election of the representatives regulation 18(l) of the Rules and Regulations i.e. bye-laws of the petitioner Trust empowers the Chairman to nominate the members as representatives wherever instead of electing the same.

5.8 On communication from the petitioner about the nomination / election of the members as representatives to the respondent - University on 30th March, 2021, the respondent - University vide communication dated 19 th April, 2021 informed the petitioner that the election for the representatives of the petitioner on the Syndicate is required to be conducted by the respondent - University in view of the provisions of the Act, 1955 and statute of the University except for MLA and Jilla

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Panchayat election to the Senate and syndicate.

5.9 The petitioner being aggrieved by the communication dated 19th April, 2021, vide letter dated 22nd April, 2021, informed the respondent - University that election for the representatives of the petitioner at the Syndicate as envisaged by Section 22(1)(f) of the Act, 1955 is an internal matter of the petitioner and the same cannot be conducted by the respondent - University.

5.10 It appears that vide communication dated 25th April, 2021 the respondent - University rejected the representation of the petitioner and the petitioner was informed that the respondent - University stands by its original decision communicated vide letter dated 19 th April, 2021, whereby the petitioner was informed that the election of the representatives of the petitioner to the Syndicate is required to be conducted by the respondent - University.

6. Learned senior advocate Mr.Dhaval Dave assisted by Mr.Udit Vyas, learned advocate for the petitioner, submitted that as per the provisions of Section 22(1)(f) of the Act, 1955, the petitioner is required to elect the representatives and not the respondent - University. It was submitted that the petitioner by its bye-laws no.18(l) prescribes that the Chairman in consultation of the Governing Body were nominated members of the petitioner to various institutions where the petitioner is to be represented instead of electing them by the general body and such nominated members shall be considered duly elected by the petitioner. It was therefore, submitted that the respondent - University cannot insist upon

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the petitioner to conduct election as per the provisions of the Act, 1955 read with the statutes framed under Section 41(c) read with Section 53 of the Act, 1955.

6.1 Learned senior advocate Mr.Dave further submitted that the part of Section 22(1) of the Act, 1955, more particularly, clause (c), (d) and (e) of Sub-section (1) of Section 22 of the Act, 1955, if viewed in juxtaposition to the clause (f) it would be clear that when an election is contemplated for electing the representatives of a particular class of persons to the Syndicate and such an election is to be conducted by the respondent - University, the respondent - University is specifically empowered to do so by incorporation of the phrase "to be elected ...... in accordance with the Statutes". It was pointed out that clause (f) of Section 22(1) of the Act, 1955 specifically provides for election by the petitioner and not by the respondent - University. It was therefore, submitted that there is a conspicuous absence of this phrase from Section 22(1)(f) which clearly indicates that the election of the representatives of the petitioner is to be conducted by the petitioner internally in accordance with its own byelaws and not as per the provisions of the Act, 1955 read with statutes framed thereunder.

6.2 It was further submitted that Section 53 of the Act, 1955 relied upon by the respondent - University in support of its stand as stated in the communication dated 19 th April, 2021 cannot be pressed into service as Section 53 exclusively refers to the method of election to be followed for election in respect of the authorities of the respondent - University. It was pointed out that the authorities of the respondent - University are

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enumerated by Section 14 of the Act, 1955 and therefore, the representatives to be elected by the petitioner pursuant to Section 22(1)(f) of the Act, 1955 would not qualify as an election to the authority of the respondent - University so as to attract application of Section 53 of the Act, 1955

6.3 It was also submitted that the respondent - University in its communication dated 19th April, 2021 has referred to the Statute 116(a) and (b) which has no application so far as the election of the members by the petitioner to be appointed as representatives pursuant to Section 22(1)(f) of the Act, 1955. It was submitted that the Statute 116(a) and (b) would be applied only to the election under Section 22(1)(c)(d) and (e) which specifically empowers the University to elect the concerned representatives and not for the representatives of the petitioner Society as per the provisions of Section 22(1)(f) of the Act, 1955. It was further submitted that similarly, the Statutes 128 to 131 and 135 would also not be applicable for election of the representatives of the petitioner as per the provisions of Section 22(1)(f) of the Act, 1955.

7. On the other hand, learned senior advocate Mr.Shalin Mehta assisted by Mr.Sudhanshu Jha, learned advocate for the respondent submitted that the word "election" stated in Section 22(1)(f) of the Act, 1955 has to be read as it is and the same cannot be substituted for the word "nomination". It was therefore, submitted that the petitioner cannot nominate the members as its representatives to the Syndicate as per the provisions of Section 22(1)(f) of the Act, 1955. Mr.Mehta in support of his submissions relied on the following two decisions of the Apex Court :

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(1) State of Kerala and Others v. Kerala Rare Earth and Minerals Limited and Others, reported in 2016 (6) SCC 323 and (2) Shiv Kumar Chadha v. Municipal Corporation of Delhi and Others, reported in 1993 (3) SCC 161.

7.1 Mr.Mehta referring to the decision in case of State of Kerala and Others v. Kerala Rare Earth and Minerals Limited and Others (Supra) submitted that if the law requires a particular thing to be done in a particular manner, then, in order to be valid, the act must be done in the prescribed manner alone. It was submitted that in the facts of the case when the provisions of clause (f) of Sub-section (1) of Section 22 of the Act, 1955 specifically provides for election by the petitioner, then, the petitioner cannot nominate two members and the petitioner is bound to hold election as prescribed under the provisions of the Act, 1955 read with the Statute 116(a) and (b) of the respondent - University.

7.2 Relying on the decision in case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and Others (Supra) it was submitted that when a particular provision prescribes an act to be done in a particular manner, then, the same has to be done in the same manner as prescribed. It was further submitted that the petitioner was bound to hold election as per the provisions of Section 22(1)(f) of the Act, 1955 and the action of the petitioner to nominate two members relying upon the regulation 18(l) cannot over-right the provision of Section 22(1)

(f) of the Act, 1955 read with Statute 116(a) and (b).

7.3 Learned senior advocate Mr.Mehta further submitted that

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there has to be harmonious reading of the provisions of the Act, 1955 and for that purpose he referred to Sections 15, 22, 41(c) and 53 of the Act, 1955 read with Statute 116(a) and (b) to contend that on reading these provisions it is incumbent upon the petitioner to hold election for two members as representatives of the Syndicate. It was submitted that the Statute 116(a) and (b) read with Section 53 provides that the Registrar has to prepare an electoral rolls with regard to the body who is required to elect its representatives as the members of the Syndicate. It was therefore, submitted that as the petitioner has not conducted the election as prescribed under the provisions of the Act and the Statute nomination made by the petitioner is illegal and therefore, the Vice- Chancellor of the respondent - University has rightly rejected such communication vide communication date 19th April, 2021.

7.4 Learned senior advocate Mr.Mehta submitted that in view of the harmonious reading of various provisions of the Act, 1955 by no stretch of imagination it can be said that the petitioner is entitled to nominate its members without holding any election and therefore, in such circumstances, the petition deserves to be dismissed.

8. Having heard the learned advocate for the respective parties and having considered the various provisions of the Act, 1955 as well as the Statute and the Rules and Regulations of the bye-laws of the petitioner it emerges as under :

(i) Section 15 of the Act, 1955 refers to the constitution of the Senate of the respondent - University. Clause (D) of Section 15 provides for members of the Senate of the petitioner who are

C/SCA/7770/2021 JUDGMENT DATED: 06/09/2021

the President, the Chairman and the Secretary to be nominated as Ex-Officio fellows. Similarly, clause (B) of Executive fellows whereas part II of Section 15 which refers to Ordinary fellows refers to nomination by the various institutions. Similarly, Section 22 refers to the constitution of the Syndicate of the respondent - University which is the executive authority consisting of various representatives either by election or by nomination. For ready reference, Sections 15 and 22 of the Act, 1955 are reproduced as under :

Section 15. The Senate shall consist of the following :-

I. Ex-Officio fellows.

(A)      (i) The Chancellor,
         (ii) The Vice-Chancellor,
         (iii) The last Ex-Vice-Chancellor of the University, residing in           the
         State,
         (iiia) The Pro-Vice-Chancellor,
         (iv) The Heads of University Departments,
         (v) The Registrar,

(B)      [* * * *]
         (ii) The Collector, Anand District,
         [* * * *]

(iv) The Vice-Chancellors of other Universities established by law in the State of Gujarat,

(v) The Secretary to the Government of Gujarat, Education Department or an officer not below the rank of Deputy Secretary, nominated by him,

(vi) The Commissioner / Director of Higher Education or an officer of the said office, nominated by the State government,

(vii) The Chief District Medical Officer of Anand District,

(viii) The Director of Animal Husbandry and Veterinary Science,

(ix) The Director of Agriculture or Joint or Deputy Director of Agriculture designated by the State government,

(x) The Commissioner / Director of Industries, Gujarat State or an officer not below the rank of Deputy Commissioner / Joint Director of the said office, nominated by the State Government,

(xi) The commissioner / Director of Technical Education, Gujarat State or an officer of the said office, nominated by the State Government, (xia) The commissioner / Director of Health and Medical Services and Medical Education or an officer of the said office, nominated by the State Government,

(xii) The Chief Engineer or a Superintendent Engineer, [Roads & Building Department], nominated by the State Government,

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(xiii) The Chairman of the Gujarat Secondary and Higher Secondary Education Boards.

(C)      (i) Deans of Faculties,
         (ii) Principals of Colleges,
         [ * * * * *].

(D)      (i) (a) the President,
         (b) the Chairman, and
         (c) the Secretary,
         of the Charutar Vidya Mandal,
         [ * * * * * *].


Section 22. (1)     The Syndicate shall be the executive authority of the

University and shall consist of the following, namely :-

(a) The Vice-Chancellor,

(b) The Commissioner / Director of Higher Education or an officer nominated by the State Government under clause (vi) of paragraph (B) of I. Ex-Officio Fellows of SEction15,

(bi) The Commissioner / director of Technical Education or an officer nominated by the State government under clause (xi) of paragraph (B) of I. Ex-Officio Fellows of Section 15,

(bii) The Commissioner / Director of Health and Medical Services and Medical Education or an officer nominated by the State Government under clause (xia) of paragraph (B) of I. Ex-Officio Fellows of Section 15,

(c) Two Heads of Department of the University elected by the Senate from amongst the Heads of Departments of the Universities in accordance with the Statutes,

(d) Two Principals elected by the Senate from amongst the Principals of the degree colleges affiliated to the University, in accordance with the Statutes,

(e) Ten persons elected by the Senate in accordance with the Statutes from amongst Fellows other than those who are Heads of University Departments or Principals of Colleges or are Fellows under paragraph (D) under the heading "I-Ex-Officio Fellows", or under clauses (i) and (ii) of paragraph (B) under the heading "II- Ordinary Fellows", in Section 15,

(f) Two representatives elected by the Charutar Vidya Mandal,

(g) One representative of the Institute of Agriculture elected by the trustees of Seth Mansukhlal Chhaganlal Trust and Seth Mungalal Goenka Trust,

(h) One representative elected by the Birla Education Trust,

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(i) Four persons nominated by the State Government from amongst distinguished educationists, teachers, social workers and such other class of persons irrespective of whether they are members of the Senate :

Provided that a member elected under clauses (c) to (e) shall cease to hold office as such member if he ceases to be a head of the University Department, or a Principal or, a Fellow of the Senate, as the case may be.

(2) The term of office of the elected members of the Syndicate shall be three years,

(3) If for any reason whatsoever the elected member remains absent from four consecutive ordinary meetings of the Syndicate, he shall vacate his seat on the Syndicate.

(ii) Section 41(c) of the Act, 1955 refers to the framing of the Statutes subject to the provisions of the Act, 1955 by the Senate of the respondent - University, which reads as under :

Section 41(c) -

The manner of election of Fellows and the members of the Syndicate, and the terms and conditions of their office, registration of graduates and maintenance of a register of registered graduates and the filling up of casual vacancies in the Senate and the Syndicate.

(iii) Section 53 of the Act, 1955 pertains to Chapter X with regard to election by the system of proportional representation and reads as under :

Section 53 -

Every election to any authority of the University made under this Act shall be made by the system of proportional representation by means of the single transferable vote by ballot in such manner as may be prescribed by Statutes :

Provided that no vote shall be recorded by post of by proxy.

(iv) Statute 116 of Chapter XIII of the Statutes refers to the authorities of the respondent - University and Sub-clause (i) of

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Chapter XIII refers to Electoral Rolls under Sections 41 (c) and Section 53 of the Act, 1955 which contains Statute 116 which reads as under :

Statute 116.

(a) The Registrar shall prepare the electoral rolls for all bodies entitled to elect members to b the authorities of the University, showing the names / designations of all persons of bodies qualified to vote. The preparation or revision of the rolls shall be notified through a notice published in news-papers selected by the Vice-Chancellor in the case . of the roll of registered graduates and through notices circulated through the Heads of Institutions in the case of rolls of 'teachers', 'Head Masters' and 'Secondary Teachers.' The rolls shall include the names of all persons who are the 'registered graduates' of the University, 'teachers', 'Head Masters', or 'Secondary Teachers' as the case may be, within the meaning of the Act and the relevant Statutes, on the fourteenth day from the date of the notice (counting the date of the notice as the first day).

(b) For the purpose of election to the Syndicate the register of the members of the Senate maintained in the office of the University shall be treated as the electoral roll.

(c) Subject to the provisions of Clause (a) above the Vice-Chancellor shall have the ' authority to correct the rolls by adding, altering or omitting names, if any omission or wrong entries be brought to his notice, and such corrections shall be published at least three clear days before the date fixed as the last date for receiving nominations at an election or bye- election to the Senate.

9. On conjoint reading of the above provisions it is clear that for the election of the authorities to the University there is a prescribed procedure provided under the provisions of the Act, 1955 read with the statutes framed thereunder.

10. Section 22(1) of the Act, 1955 provides for the Syndicate of the University which is an executive authority and contains various clauses so as to prescribe how the Syndicate will be constituted consisting of different types members and representatives which includes Vice-Chancellor, Commissioner of Higher Education, Commissioner of Technical Education,

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Commissioner of Health and Medical Services who are to be nominated, whereas, clause (c), (d) and (e) of Section 22(1) provides for representatives to be elected by the Senate from amongst the prescribed Heads of the Department or Principals of various degree colleges affiliated to the University in accordance with the Statute. In juxtaposition to clause (c), (d) and (e) of Sub-section (1) of Section 22 clause (f) provides for "two representatives elected by the Charutar Vidya Mandal" i.e. the petitioner has to elect two representatives. Therefore, on reading of clause (f) of Sub-section (1) of Section 22, it cannot be said that the Rules, Regulations, Statutes and provisions of the Act, 1955 would be applicable to the petitioner who has to elect two representatives who will be the members of the Syndicate of the respondent - University.

11. There is no dispute with regard to the law laid down by the Apex Court to the effect that if the law requires a particular thing to be done in a particular manner, then, in order to be valid, the act must be done in the prescribed manner alone as in both the judgments cited on behalf of the respondent - University.

12. On the contrary, both the decisions would be helpful to the petitioner because, clause (f) of Sub-section (1) of Section 22 provides for election of the two representatives by the petitioner and therefore, bye-laws of the petitioner would be applicable as approved by the Charity commissioner under the provisions of the Bombay Public Trust Act as to how the election of two members / representatives has to be done by the petitioner and the bye-laws 18(l) which reads as under, clearly provides that the Chairman in consultation with the

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Governing body of the petitioner can nominate two members on various institutions where the petitioner is required to be represented and such nominated persons will be considered as elected by the petitioner.

Bye-laws 18(l) :

Chairman in consultation with the Governing body shall nominate members of the mandal to the various Institutions where Charutar Vidya Mandal is to be represented, instead of electing them by the General Body. Such nominated members shall be considered duly elected by the mandal.

13. Thus, looking from any angle the respondent - University cannot insist as to how the representatives are required to be elected by the petitioner who will be the members of the Syndicate as per Section 22(1)(f) of the Act, 1955. It is for the petitioner to elect the representatives as per its own bye-laws and therefore, the contentions raised on behalf of the respondent - University is not tenable in law.

14. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned communications dated 19 th April, 2021 and 25th April, 2021 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J)

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