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Punjab-Haryana High Court
Prof Keshav Malhotra And Ors vs Punjab University And Ors on 23 March, 2021 IN THE HIGH COURT OF PUNJAB AND HARYANA

CWP No.22229 of 2020 (O&M)
Date of decision: 23rd March, 2021

Prof. Keshav Malhotra & others
… Petitioners
Panjab University and others
… Respondents

Present: Mr. R.S. Cheema, Senior Advocate with
Mr. R. Kartikeya, Advocate for the petitioners.
Mr. Satya Pal Jain, Senior Advocate with
Mr. Govind Goel, Advocate
for respondent No.1.
Mr. Piyush Bansal and Mr. Subhash Ahuja, Advocates
for respondent No.2.
Mr. Sahil Sharma, Dy. Advocate General, Punjab
for respondent No.3.
Mr. Pankaj Jain, Senior Standing Counsel with
Mr. Jaivir Chandail, Advocate
for respondent No.4 – UT Chandigarh.


“Power will intoxicate the best hearts, as wine the strongest

heads. No man is wise enough, nor good enough, to be trusted with

unlimited power.” Colton

Little did the enacters of the Panjab University Act, 1947 (in

short, ‘the Act’) would have realized that what they have framed as a

comprehensive and exhaustive legislation would come to be a tool in the

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hands of its own academic officer pursuing not the educational goals but

satisfying his own personal ends and thereby in the process virtually oust

its own governing body looking after the management and

superintendence of this August institution once of International fame and

oldest in this country. Such is the unbridled exercise of powers that even

the power of Government under Section 33 of the Act could not deter

him or had any sobering effect, and what to the nullifying effect of

special meetings provided under Section 11(2) and 31(2)(c) of the Act

empowering the requisite members of Senate to requisition a meeting. It

is thus what has led the present petitioners who happen to be the Senators

of respondent No.1 University in knocking at the doors of this Court by

way of instant Writ Petition having been rendered powerless, in spite of

the fact that the Senate is the Supreme authority of the University and

managing its affairs in terms of Section 8 read with Section 11 of the Act

as well as its powers of making regulations in conformity with Section 31

of the Act. Respondent No.2 being the Vice-Chancellor of respondent

No.1 to usurp these powers of Senate appears to have chosen a way out

and in this Scheme has managed to pass orders (Annexure P10) thereby

putting off the Senate Elections 2020 indefinitely which was supposed to

be held with effect from August 2020 as term of the 91-member Senate

was to expire in October 2020. The allegations are to the effect that it was

under influence of politically backed group that this manipulation has

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come about, when the election process has already begun and the

deferment by Respondent No.2 was illegal and highly uncalled for, in

exercise of powers under Regulation 12.2, Chapter II B of Panjab

University Calendar Vol.I, by way of Orders Annexures P-16, P-19 and

P-20. The petitioners have termed the advice by UT Administration and

Standing Counsel to be biased for a motivated cause, and thus have

questioned the powers of respondent No.2 to defer the Elections

indefinitely without approval of the Syndicate/Senate as falling outside

the powers of respondent No.2.

The resultant stand of the respondents in their respective

responses is of total denial, the Senate term having expired and thus the

locus-standi of the petitioners to challenge the same. Support is taken

from the stand of various bodies of the University and the present

COVID-19 pandemic being responsible for this deferment and so

reluctance of the Administration in facilitating these elections which was

spread over a number of constituencies in surrounding States with a large

number of voters.

Heard learned counsel for the parties and had the opportunity

to go through the records in detail.

Mr. R.S. Cheema, Senior Advocate assisted by Mr. R.

Kartikeya, Advocate appearing on behalf of the petitioners had led a

scathing attack upon the connivance of respondents with each other and

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their illegal conduct in scuttling due process of elections which had

already been set into motion and appraisal of the Punjab Reorganization

Act, 1966 as well as the Panjab University Act, 1947 was made. Learned

counsel had stressed on the fact that it was respondent No.2 who had

initiated the electoral process and subsequent thereto had postponed and

upon political interference had deferred the same indefinitely. It was

urged that it was nothing but a device intended by respondent No.2 to

usurp the powers of the sacrosanct democratically elected body of the

University harboring on the claim that under the Act and the Regulations,

the University cannot lawfully function in the absence of the Senate and

the Syndicate and has even highlighted that without there being

introduction and implementation of the new education policy, the

respondents are trying evade their obligations. It is under this plea the

counsel had prayed that there cannot be any indefinite deferment when

the electoral process for various legislative bodies throughout the country

is taking place and it is nothing but a ploy to keep out the petitioners and

simply force the Senators from exercising their powers that vest in them

under the University Act and the Regulations.

Mr. Satya Pal Jain, Senior Advocate assisted by Mr. Govind

Goel, Advocate representing respondent No.1/University; Mr. Piyush

Bansal and Mr. Subhash Ahuja, Advocates for respondent No.2/the Vice-

Chancellor; Mr. Sahil Sharma, Dy. Advocate General, Punjab for

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respondent No.3/State and Mr. Pankaj Jain, Senior Standing Counsel

assisted by Mr. Jaivir Chandail, Advocate appearing for respondent No.4

– UT Chandigarh, in their arguments have laid a fervent attack on the

conduct of the petitioners claiming that out of 90 members of the Senate,

only seven have come up before this Court, is suggestive in itself that

majority of the members are happy with the deferment of the electoral

process. It is highlighted that from the States of Punjab, Himachal

Pradesh, Chandigarh, Rajasthan and Uttar Pradesh etc. a number of

voters have to exercise their franchise and it is because of the prevailing

pandemic it is not possible to carry on this process in holding the

elections. Learned counsel have sought to claim that none of these States

which have significant number of voters have responded to the letters of

the University because of their legitimate apprehension as to threat to

their health and well-being because of rampant spread of the pandemic.

The counsel have sought to project that under the provisions of Sections

8 and 13 of the Act, the Senate is still continuing and though term of the

Syndicate has expired, to support their submissions that in case of

impossibility of completion of election process no writ lies and further in

the absence of any tangible/evident plea that a legal duty cast upon the

respondents has been not performed then only a writ of mandamus lies in

terms of article 226 of the Constitution of India.

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Upon appreciation of these respective submissions by the

learned counsel for the two sides, it needs to be clarified that the present

writ pertains to the act of the respondents in not facilitating holding of

elections to the Senate and which process had been set into motion and

thereafter deferred indefinitely without any tangible and legitimate cause.

It is there evident from the records that the University is governed by the

Act which has force of law and therefore by virtue of exercise of powers

by this Court under Article 226 of the Constitution of India, a writ can be

issued to compel the respondents for performance of their legal duties

and which have an adverse impact on the legal rights of the petitioners

which vested in them by virtue of the Act and the Regulations framed

thereunder including the University Calendar. More so, it is more

concerning the performance of public duties and to which the petitioners

and even each one of the members of the Senate, Syndicate has a right to

challenge in case of claim of being not in conformity with these

provisions concerning the University. The ratios relied upon by learned

counsel representing respondent No.1 i.e. ‘Sharad Kumar Singh v.

State of West Bengal’ 2020 AIR Calcutta 252 and ‘Dr. Rai Shivendra

Bahadur v. Governing Body of Nalanda College’ AIR 1962 SC 1210

as well as that of respondent No.2 i.e. ‘Joyti Basu v. Debi Ghosal’ AIR

1982 SC 983; ‘Dr.Rai Shivendra Bahadur v. Governing Body of

Nalanda College’ AIR 1962 SC 1210; ‘Election Commission of India

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v. U.O.I.’ 1995 (Supp 3) SCC 643; ‘Chiraag Malli v. Panjab

University’ CWP-16962-2020 decided on 04.11.2020 (DB); ‘Anirudh

Sharma v. Panjab University’ CWP-18993-2020 decided on

10.11.2020 (DB); ‘Shalini v. Panjab University’ CWP-17415-2020

decided on 23.11.2020 (DB); and ‘Purushottam Kumar Jha v. State of

Jharkhand’ AIR 2006 SC 3655 are factually at much variance and

inapplicable to the case of the petitioners nor the respondents can derive

any advantage of the same. Moreover, the citations concerning the

Election Commission are covered under the Representation of People

(Amendment) Act, 1996 wherein proper procedure and remedies have

been provided quite different from the case before this Court.

A close look into the Act ensures that the framers keeping in

mind the running of affairs of the University have provided that it is a

body corporate with perpetual succession and a common seal and its

primary purpose was to make provisions for imparting education in

various fields as well as to carry on research and manage the educational

institutions that fell within its territorial jurisdiction. Under section 8 of

the Act, the entire Scheme shows that the supreme authority of the

University vested in the Senate which comprises of Chancellor, Vice-

Chancellor, Ex-officio Fellows and Ordinary Fellows. Under Section

10(4), the Vice-Chancellor is the principal executive and academic

officer of the University and is to exercise general control over its affairs

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in accordance with the statutes, rules and regulations and in his

absence a contingency has been provided empowering the Chancellor to

appoint a person from amongst the Fellows of the University or making

such arrangements for the disposal of the business of the University.

Further Section 11 enumerates the composition of Senate. Section 20 of

the Act deals with Syndicate which is supposed to be the Executive

Government of the University and comprises of the Vice-Chancellor;

Director of Public Instruction, Punjab and the Director of Public

Instruction, Chandigarh besides Ex-officio or Ordinary Fellows elected

by the Faculties and further it enumerates the gamut of powers and the

role of Syndicate. Chapter II(A)(ii) of the Act enumerates the Regulations

framed under Sections 20 and 31(2)(c) of the Act detailing the manner of

election of the Syndics and Ex-officio or Ordinary Fellows. These

provisions highlight the fact that a new Syndicate shall be elected not

latter than December 31st of each year and its year of office shall

commence with effect from 1st January and in case of urgency the Vice-

Chancellor is supposed to refer the matter to the Syndicate at its meeting

for approval. However, with dismay, this Court has observed that all

these provisions have been thrown off to the winds and what stands

enumerated thereby is that the University is being run as a one-man show

who in oblivion how a University can function as per these provisions

governing it in the absence of a Syndicate and Senate and therefore,

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sufficiently counters the submissions of the respondents’ counsels that as

on date none of these bodies is continuing and which argument is in itself

contrary to what is enshrined in Sections 8 and 13 of the Act. A ‘Body

Corporate’ by its dictionary meaning itself suggests as an artificial person

established for prescribing in perpetual succession certain rights which if

conferred on natural persons would fail in the process of time and

therefore being an invisible, intangible and existing only in

contemplation of law as a mere creator of law and therefore its existence

cannot be extinguished.

To the specific query of this Court as to any tangible consent

to the act of respondent No.2 by the Chancellor of the University, who

heads the institution of its corporate-being over and above that of

respondent No.2 and others, and when under Section 38 of the Act in

case of any dispute the matter ought to be referred to the Chancellor, the

counsel was clearly at loss of words. The premise that out of 90 Senators,

only 7 have come up before this Court is no ground and any violation of

the Act and Regulations can be challenged in a writ petition even by one

of the persons claiming to be the one who is sufferer and it need not be

arraying of the entire group of Senators as a single Senator can act on

behalf of the entire body. The claim of the respondents’ counsel where

reliance is sought to be placed on Annexure R1/1 to Annexure R1/3 that

certain outgoing Senators have sought deferment, does not impress the

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Court much. The claim by the respondents on the basis of Annexure R1/4

that keeping in view the enormous election process spread over a number

of States, the Disaster Management Act, 2005 does not allow such a

process, is apparently a way to duck the obligations by the respondents

when it is quite evident to an ordinary prudent man in the country that the

elections are being conducted to various bodies including Assemblies and

local bodies etc. throughout the Country, does not augur well for the

respondents. More so, the guise that because of the new education policy

being contemplated and the fair admission by Mr. Satya Pal Jain, Senior

Advocate representing the respondent University that the new education

policy is likely to be implemented by 2035, is too far-fetched a

preposition for the Court to take cognizance of such a stand. The cause of

postponement sought to be highlighted by way of Annexures P-8, P-10

and P-19 has ceased to hold good in the present scenario and no

advantage can be drawn of such a feeble argument. A question comes to

the mind of this Court that under the provisions of the Act and the

Regulations governing the respondent University, especially Section 31

provides for regulations regarding procedure to be followed in holding

the elections, meetings, appointments etc. besides dealing with the

preparation and maintenance of annual accounts and audit as well as

management/cancellation/alteration of the provisions of the Act and the

by-laws. It cannot be accepted that this body of the University which has

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very important functions to perform has ceased to exist. More so, under

Chapter II(A)(iii) of the Act, the Board of Finance of the University has

in its composition besides two members of the Syndicate, two members

elected by the Senate and which Board is to look after the entire financial

running of the affairs including the budget of the University. The most

intriguing fact is that schedule of the Senate elections was notified, as has

been conceded by the two sides, way back in November 2019 and after

easing of pandemic it was bounden duty of respondent No.2 to ensure

holding of these elections. No doubt, under Regulation 12.2 Chapter II(B)

Vol.I under the Act empowers the Vice-Chancellor to postpone for the

time-being elections but this does not clothe respondent No.2 with

unbridled powers to carry on with the exercise of these powers

indefinitely when throughout the country elections are being held to

various institutions, abundantly shows this act is laced with malice and

motive. Furthermore, what surprises the Court is that the respondents are

carrying on this illegitimate exercise indefinitely, merely on an advice

obtained from the Standing Counsel of the respondent Administration,

are matters which further create a doubt in the mind of the Court that all

was not well with the act and conduct of the respondents. Till the new

education policy being envisaged and the mainstay of the respondents’

submissions is implemented, which is likely to be introduced by 2035, it

would be too preposterous for the Court to hold that till then the

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provisions of the Act and the Regulations governing the respondents have

to be put in cold-freezer.

The term of the present Senate was with effect from

01.11.2016 to 31.10.2020 and the petition has been filed on 18.12.2020

whereas the term of the Syndicate has ended on 31.12.2020, are matters

which further implore the Court that for the proper running of the

respondent University and ensuring that the very purpose of its formation

is not jeopardized, the election process needs to be held at the earliest so

that it does not lead to autocratic governance in the University affecting

its democratic functioning which could be a scar on its reputation being

one of the oldest and prestigious Universities of this country and

internationally acknowledged as well.

In a democratic system, elections need to be held periodically

which in turn leads to democratic governance and thus is a very essential

function in decision making. Besides it leads to accountability and raising

of conscious level resulting in better and efficient running/governance of

an institution. The purpose of elections in the University keeping in view

the scheme of the Act and the Regulations of the University ensures that

the main administration of the University is vested with the Senate which

looks after each and every functioning of it and in the absence of any

bona fide, legally legitimate and valid reasons such orders of the

respondent University as highlighted in (Annexures P-10, P16, P-19 and

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P-20) with the efflux of time and easing out of situation cannot put to

hold the elections to the Senate indefinitely and therefore, this act of the

respondents in passing the same smacks of mala fide, caprice and in utter

violation of the Act and the Regulations governing the respondent

University and therefore, being unconstitutional the same are hereby set

aside in toto. Respondent No.2 is directed to ensure that the electoral

process, which has been set into motion, be completed by all means

within two months of the date of receipt of a copy of this order. The

petition stands disposed off as allowed accordingly.

March 23, 2021
Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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