Judgement

WANCHOO, CJI. :- This is an appeal by special leave against the judgment of the Assam High Court by which the writ petition filed by the appellant was dismissed. Brief facts necessary for present purposes are these. It appears that the appellant was expelled from the Medical College Gauhati on October 26, 1966. It is said that the appellant tendered unqualified apology on October 27, l966 and attended classes up to the end of October 1966. The Principal however does not seem to have accepted the apology and when the appellant went on November 2, 1966, to deposit the fee for the examination which was to be held from November 4, 1966, he was told that as he had been expelled and as the order of expulsion stood no examination fee would be accepted from him. It was thereafter that the appellant filed the writ petition on November 3, 1966, out of which the present appeal has arisen.

2. It may be mentioned that the High Court was in vacation from September 17, 1966 to November 18, 1966. Mr. Justice S. K. Dutta was nominated as the Vacation Judge for the vacation and certain dates were fixed on which ho was to sit and hear urgent civil and criminal application. One of these dates was October 31, 1966 and another was November 10, 1966. It was also stated in the order that if there was any matter which was extremely urgent it would be heard on any other day by appointment through the Registrar.

3. It appears that Mr. Justice Dutta was also working as a Commission of Enquiry during that time. For that purpose be had to go out of Gauhati, which is the seat of the High Court. It seems that Mr. Justice Dutta went away to Sibsagar after the vacation sitting on October 31, 1966. Therefore on November, 2, 1966 he was not available at Gauhati, even though he was the Vacation Judge and even though the order relating to vacation sittings said that if any matter was extremely urgent it could be heard on any other day by appointment through the Registrar. As the examination was to be held from November 4, 1966, the filing of the writ petition against the order of expulsion was undoubtedly a very urgent matter, if any order was to be obtained before November 4, 1966. What the appellant is said to have done was this. He gave notice to the Government Advocate on November 2, 1966 at Gauhati as required by the Rules and thereafter went to Sibsagar where Mr. Justice Dutta was holding the Commission of Enquiry and presented the writ petition there. This petition was entertained by Mr. Justice Dutta and he passed interim orders thereon. A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it was to be sealed. The appellant took the order to Gauhati and after getting it sealed served it on the university. He was thereupon allowed to sit at the examination subject to the result of the writ petition. It also appears that thereafter the papers relating to the writ petition were sent to Gauhati and the High Court had occasion to deal with the writ petition and passed miscellaneous orders thereon at Gauhati after the vacation was over. Eventually, the writ petition came up for hearing in May 1967. A preliminary objection was raised to the maintainability of the petition on behalf of the respondent. It was urged that as Mr. Justice Dutta was holding a Commission of Enquiry he could not act as a Judge of the High Court. It was also urged in the alternative that even if he had the jurisdiction to act as a Judge of the High Court, he could not exercise that jurisdiction while at Sibsagar for the seat of the High Court was at Gauhati.

4. The petition was heard by a Bench consisting of the learned Chief Justice and Mr. Justice Goswami. The learned Chief Justice seems to have held that Mr. Justice Dutta while performing the duties of a Commission of Enquiry could not also perform the duties of a Judge of the High Court. He further held that in any case as the seat of the High Court was at Gauhati Mr. Justic