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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
AT CHANDIGARH
CWP No.22229 of 2020 (O&M)
Date of decision: 23rd March, 2021
Prof. Keshav Malhotra & others
… Petitioners
Versus
Panjab University and others
… Respondents
CORAM: HON’BLE MR. JUSTICE FATEH DEEP SINGH
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.
FATEH DEEP SINGH, J.
“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.
(FATEH DEEP SINGH)
JUDGE
March 23, 2021
rps
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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