Gujarat
University Vs. N.U. Rajguru & Ors [1987] INSC 320 (10 November 1987)
SINGH,
K.N. (J) SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)
CITATION:
1988 AIR 66 1988 SCR (1) 899 1987 SCC Supl. 512 JT 1987 (4) 307 1987 SCALE
(2)1093
ACT:
Election
of teachers to the court of the Gujarat University-Provisions of the Gujarat
University Act-1949, relating thereto.
HEADNOTE:
%
The University of Gujarat held election of 28 members of the Court of the
University out of 42 members, as the election with regard to the 14 seats had
been stayed by an order of the High Court. The respondents-teachers filed a
writ petition in the High Court for setting aside the election of the 28
members and holding fresh election for all the seats. The High Court set aside
the election to the 28 seats and directed the holding of fresh election for all
the 42 seats. Aggrieved by the decision of the High Court in the writ petition,
the appellant appealed to this Court.
Allowing
the appeal, the Court, ^
HELD:
The High Court committed an error in entertaining the writ petition and
interfering with the election.
Election
to the membership of the court of the University and the determination of the
disputes relating thereto, are regulated by the provisions of the Gujarat
University Act, 1949. Under section 58 as substituted by the Gujarat Act 9 of
1983. Under the provisions of the Act, if a dispute arises with regard inter
alia to the election of any member of any authority or other body of the
University, it shall be referred to the State Government, which shall decide
the matter and the decision of the Government shall be final. It is
well-settled that where a statute provides for an election and a machinery or
forum to determine any dispute arising out of that election, the aggrieved person
should pursue his remedy before the forum provided by the statute.
It
is not permissible to invoke the jurisdiction of the High Court by a writ
petition, by-passing the machinery provided by the Act for the determination of
the election dispute.
The
remedy provided by the statute must be followed except where exceptional,
extraordinary circumstances exist to justify the by-passing of the alternative
remedies. In the present case, there existed no circumstance, justifying
departure from this rule and the High Court was not right in entertaining the
writ petition. [902B; 903B-C, G-H; 904B] 900 K.K Shrivastava etc. v. Bhupendra
Kumar Jain & Ors., AIR 1977 SC 1703; Ramjibhai Ukabhai Parmar v. Manilal
Purushottam Solanki & Anr., AIR 1960 Gujarat 19, referred to.
Civil
Appellate Jurisdiction: Civil Appeal No. 2321 of 1984.
From
the Judgment and order dated 7.2.1984 of the Gujarat High Court in Special
Civil Application No. 5985 of 1983.
Dr.
Y.S. Chitale, P.H. Parekh, D. Chandrachud, Sanjay Bharati, S.N. Shelat and
M.K.S. Menon for the Appellant. B.K. Mehta and H.J. Jhaveri for the
Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal
is directed against the judgment of the High Court of Gujarat dated 7th
February, 1984 setting aside the election of 28 teachers to the Court of the
Gujarat University and the consequential order directing the University to hold
fresh election for the 42 member’s constituency to the court.
Briefly
the facts giving rise to this appeal are these.
The
Gujarat University is constituted under the provisions of the Gujarat
University Act, 1949. Section 15 of the Act designates the "Court" as
an authority of the University.
Section
16 provides for the constitution of the "Court", it consists of two
classes of members, ex-officio, and elected members. Section 16(1) provides for
election to the category of 'ordinary members of court'. Clause (A) (VIII) of
Section 16(1) lays down that 42 members shall be elected by teachers of
affiliated colleges (excluding Deans of Faculties and Principals of Colleges)
from amongst themselves in the manner specified in the statutes. Sections 28
and 29 confer power on the Court to frame statutes in respect of matters which
by the Act are required to be prescribed by the statutes. Statute 10(3) of the
University of Gujarat provides for election of 42 members to the court by
teachers excluding Deans of Faculties and Principals of Colleges in the manner
specified therein. It further provides that 14 members shall be elected to the
court by the teachers of Faculty of Arts and Education, out of which 10 members
shall be elected by teachers having teaching experience of 10 years or more,
while the remaining 4 shall be elected by the teachers having experience of
less than 10 years. Statute 10(3) further provides for election of GUJARAT
UNIVERSITY v. N U. RAJGURU [SINGH, J.l 901 901 28 members to be elected by the
teachers working in various other Faculties of the affiliated colleges of the
University. The term of the office of the elected members of the Court is five
years. The Registrar of the University by a notification dated August 25, 1983
notified programme for holding the election of 42 members by the teachers of
affiliated colleges from various faculties. According to the notification election
was scheduled to be held on 9th October, 1983.
Three
teachers, two of whom belonged to the Faculty of Education and the third
belonging to the Faculty of Arts, challenged the holding of the election by
means of a writ petition before the High Court (Writ Petition No. SCA No. 4682
of 1983) on the ground that in view of the separation of the Faculty of
Education from the Faculty of Arts as a result of the amendment of Section 23
by the Amending Gujarat Act 10 of 1982, the allotment of 14 seats for the
Faculty of Arts, and Education was illegal. They contended that in view of the
separation of the two Faculties separate seats should be allotted to the two
Faculties for the election of teachers to the court. Petitioners of that writ
petition claimed interim relief for the stay of the election of 42
representatives of teachers to the Court. The High Court, however, granted a
limited interim relief, staying the process of election with regard to the
fourteen seats of Arts and Education Faculties only, no stay order was issued
with regard to holding of election of the remaining 28 seats. In order to
implement the interim order the University issued notification on 27th
September 1983 notifying the stay of election to the 14 seats but it stated
that the election with regard to remaining 28 seats in the teachers'
constituency shall be held as scheduled. Election to the 28 seats from the
teachers' constituency of other Faculties was held on 9th October, 1983. The
respondent teachers of the University participated in the election, but before
the declaration of the result of the election the respondents filed writ
petition under Article 226 of the Constitution (SCA No. 5085 of 1983) seeking
the relief of setting aside the election of 28 members and for the issue of a
writ of mandamus directing the University to hold fresh election for all the
Faculties in accordance with the system of proportional representation and
single transferable vote.
Before
the High Court respondents' main grievance was that since the election to 14
seats from the teachers' constituency of Faculty of Arts and Education was
stayed by the High Court, elections to the remaining 28 seats could not validly
be held on account of the system of proportional representation by single
transferable vote. The High Court accepted the contention raised on behalf of
the respondents, set aside the election to 28 seats and directed the University
to hold fresh election to the court for 42 seats 902 from amongst the teachers
of various Faculties. Aggrieved, the Gujarat University has preferred this
appeal.
After
hearing learned counsel for the parties at some length we are of the opinion
that the High Court committed an error in entertaining the writ petition and
interfering with the election. Election to the membership of the court is
regulated by the statutory provisions contained in the Act, and it also
provides for the determination of election disputes. Section 58 as substituted
by the Gujarat Act 9 of 1983 which came into force on 25.1.1983 provides for the
determination of disputes as to constitution of any University authority. It
reads as under:
"58.
Disputes as to constitution of University authority or body- Where any question
arises as to-(1) the interpretation of any provision of this Act, or of any
Statute, ordinance, Regulation or Rules. Or (2) whether a person has been duly
elected or appointed as, or is entitled to be or ceases to be entitled to be, a
member of any authority or other body of the University (a) it may be referred
to the State Government if it relates to a matter specified in clause (1), and
(b) it shall be referred to the State Government if- (i) it relates to a matter
specified in Clause (2), or (ii) if twenty members of the court so require
irrespective of whether it relates to a matter specified in clause (1) or
Clause (2), and the State Government shall after making such inquiry as it
deems fit (including giving opportunity of being heard where necessary) decide
the question and its decision shall be final." Under the aforesaid provision
if a dispute arises with regard to the constitution of any of the authorities
of the University, it should be referred to the State Government for
determining the same. It firstly provides that where any question arises as to
the interpretation of any provision of the Act, or of any Statute, ordinance,
Regulation or Rules, it may be referred to the State Government. Secondly, it
lays 903 down that if a question arises whether a person has been duly elected
or appointed as, or is entitled to be or ceases to be entitled to be, a member
of any authority or other body of the University; it shall be referred to the
State Government. Section 58(2)(a) provides that the dispute relating to
interpretation of any provision of the Act or Statute ordinance, Regulation or
Rules may be referred to the Government while Clause (b) of Sub-section 2 of
Section 58 contains a mandatory provision that if the dispute relates to the
question whether a person has been duly elected or appointed to any authority
of the University such a dispute shall be referred to the State Government.
There is no option or discretion. If such a dispute arises, it has to be
referred to the State Government for determining the same. If 20 members of the
Court raise a dispute relating to a matter specified in Clause (1) or Clause II
of Section 58 it shall be referred to the State Government and thereupon the
State government shall after making such enquiry as it may deem fit, decide the
question. The legislative intent is manifestly clear that any dispute relating
to the matters covered by Section 58 should be referred to the State Government
for its decision and such decision shall be final. By enacting Section 58, the
legislature has constituted a forum for the determination of disputes in respect
of matters specified therein. Since the "Court" is an authority of
the University as declared by Section 15 of the Act, Section 58 provides an
effective remedy for challenging the election of a member to the Court of the
University. Any person aggrieved by the election of any manner to the Court has
right to challenge the same before the State Government by raising a dispute in
accordance with Section 58. In the instant case, the respondents could have
availed the alternative remedy available to them before the State Government
under Section 58 of the Act. Instead they challenged the validity of the
election before the High Court under Article 226 of the Constitution. The
respondents had challenged the validity of Statute 10(3) in their writ petition
but they did not press that question before the High Court as stated in the
judgment under appeal.
It
is well settled that where a statute provides for election to an office, or an
authority or institution and if it further provides a machinery or forum for
determination of dispute arising out of election, the aggrieved person should
pursue his remedy before the forum provided by the statute. While considering
an election dispute it must be kept in mind that the right to vote, contest or
dispute election is neither a fundamental or common law right instead it is a
statutory right regulated by the statutory provisions. It is not permissible to
invoke the jurisdiction of the High Court under Article 226 of the Constitution
by-passing the machinery designated by the Act for determination A of the
election dispute. Ordinarily the remedy provided by the statute must be
followed before the authority designated therein. But there may be cases where
exceptional or extraordinary circumstances may exist to justify by-passing the
alternative remedies. In the instant case, there existed no circumstances
justifying departure from the normal rule as even the challenge to the validity
of statute 10 was not pressed by the respondents before the High Court.
We
do not consider it necessary to burden the judgment by referring to decisions
of this Court laying down the principle that where a statute provides a
complete machinery for obtaining relief against the orders passed by the
authorities a petitioner cannot be permitted to abandon that machinery and to
invoke the jurisdiction of the High Court under Article 226 of the
Constitution. We would however refer to a decision of this Court in K.K.
Shrivastava etc.
v.
Bhupendra Kumar Jain and other, AIR 1977 SC 1703 where a defeated candidate at
the election to the membership of the Bar Council of Madhya Pradesh moved the
High Court under Article 226 of the Constitution challenging the validity of
the election. The High Court was conscious that equally efficacious remedy was
available to the petitioner under the rules but even thereafter the High Court
interfered on the ground that since the entire election was challenged an
election petition could not be an appropriate remedy and the same could not be
considered as an equally efficacious remedy. This Court set aside the High
Court's order. Krishna Iyer, J. speaking for the Court observed:
"It
is well settled law that while Art. 226 of the Constitution confers a wide
power on the High Court there are equally well settled limitations which this
Court has repeatedly pointed out on the exercise of such power. One of them
which is relevant for the present case is that where there is an appropriate or
equally efficacious remedy the Court should keep its hands off. This is more
particularly so where the dispute relates to an election. Still more so where
there is a statutorily prescribed remedy which almost reads in mandatory terms.
While we need not in this case go to the extent of stating that if there are
exceptional or extraordinary circumstances the Court should still refuse to
entertain a writ petition it is perfectly clear that merely because the
challenge is to a plurality of returns of elections, therefore a writ petition
will lie, is a fallacious argument.
905
We have already referred to Section 58 which provides for the determination of
dispute relating to election to the membership of any authority of the
University. Since the Court is an authority of the University, the dispute
relating to the validity of the election of 28 members from the teachers'
constituency of various faculties of the affiliated colleges of the University
could have been raised before the State Government. The High Court committed
error in entertaining the petition and setting aside the election of 28 members
of the Court.
Learned
counsel for the respondent urged that Section 58 does not confer any right on
an aggrieved person to have a dispute relating to election referred to the
State Government. He placed reliance on the decision of a Division Bench of the
High Court in Ramjibhai Ukabhai Parmar v. Manilal Purushottam Solanki and
Another, AIR 1960 Gujarat
19.
In that case the High Court interpreted Section 58 of the Gujarat University
Act as it existed prior to its amendment in 1983. The High Court held that
since a dispute could not be referred to the State Government unless it was
raised by 20 members of the Court, alternative remedy could not be available to
an aggrieved person. Section 58 was substituted by the Gujarat Act 9 of 1983
which came into force with effect from 25.1.1983. Under the amended Section a
dispute raised by an aggrieved person relating to election of a member to an
authority of the University shall be referred to the Government for
adjudication. Now it is not necessary that the dispute should be referred to
the State Government only when 20 members of the Court so require. On the other
hand, reference shall be made to the State Government even if a dispute is
raised by a single individual provided such dispute relates to a matter
specified in Section 58(2) of the Act. The decision in Ramjibhai Ukabhai
Parmar's case does not apply in view of the amendment of Section 58.
In
the result we allow the appeal set aside the order of the High Court and
dismiss the writ petition filed by the respondents. There will be no order to
costs.
S.L.
Appeal allowed.
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