2012 Supreme(Guj) 407

IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Cheif Justice Bhaskar Bhattacharya, Hon’ble Mr. Justice A.L. Dave & Hon’ble Mr. Justice V.M. Sahai
Mukesh V. Chavda & Anr.
Versus
State of Gujarat & Ors.
Special Civil Application No. 4978 of 20111—Decided on 29/08/2012

Point in Issue :
Whether in the facts of the case university is bound to implement the order of challenge which has attained finality.

Headnote:(a) Saurashtra University Act, 1965 — Sections 13, 59 and 59(2) — Constitution of India, 1950 — Article 226 — Writ — Issuance of in the nature of quo-warranto — Holding that Opponent No. 4 is not qualified and entitled to hold office of Registrar of Saurashtra University and liable to be removed by implementing order of Chancellor dated 01.02.2011 — Scope of — The Law is settled that even if a direction on basis of the power conferred by statute is given by one statutory authority may not be appropriate in facts of the case still latter has a duty to implement such order under challenged — Therefore in the case when once in committee constituted by Chancellor has held that Respondent No. 4 had no requisite qualification of being appointed as Registrar and the Chancellor had by accepting the finding of the committee directed Vice-chancellor to take steps for removing the registrar it was the duty of the University to challenge the same according to law if they were of the view that action of Chancellor was wrong — Contention that respondent had challenged that order under Section 59 of the Act before State Government has no force because matter does not fall with in the purview of Section 59 of the Act — Thus the order of Chancellor having attained finality it is binding on respondents — Court also considered the matter of delay in coming to Court and held that in the facts of the case delay is immaterial — Court therefore directed university to implement the order of Chancellor based on inquiry report which has attained finality.

       Held :

       It is true that a High Court exercising writ-jurisdiction does not pass a direction upon the “State” to do a wrongful act. But the law is equally settled that even if a direction on the basis of the power conferred by the statute is given by one of the statutory authorities upon the other which may not be appropriate in the facts of the case, the latter has a duty to implement such order unless the latter challenges the alleged wrongful direction successfully before the appropriate forum. [Para 19]

       Once it is held that a person is holding public office under invalid authority and having no requisite qualification, the factors of mere delay or even ill-motive of the petitioners cannot stand in the way of a writ-Court and the Court should not hesitate to ask a person to vacate the office even if there is some delay or inimical relation with the petitioners with the usurper of the public office. [Para 30]

       The Chancellor, after taking into consideration the above aspects coming out on the basis of the report of the inquiry committee appointed by her, having passed a direction for the removal of the Respondent No. 4, the Respondent No. 4 or the University could challenge the said direction only by filing an appropriate judicial proceedings against the direction/order passed by the Chancellor and not by way of Reference under Section 59 of the Act. It is now well settled law that once a statutory authority, in exercise of its purported statutory powers passes an order against any person, it is the duty of that person affected by such order to challenge that order in accordance with law. Not having challenged such order, the Respondent No. 4 and the University are precluded from challenging such findings now. Moreover, we have also found that the findings arrived at by the inquiry committee were quite justified in the facts of the present case. Court thus find that the writ petition filed by the Petitioner No. 2, a member of Senate, for enforcement of the order passed by the Chancellor, which remained unchallenged, should succeed. Similarly, there is no bar in even issuing a writ in the nature of quo-warranto when we ourselves are also satisfied from the materials on record that the Respondent No. 4 had no requisite qualifications of becoming a Registrar of the University. Court, therefore, hold that it is a fit case where the University should be directed to implement the order of the Chancellor based on the inquiry report, which has attained finality. [Para 46]

       (b) Saurashtra University Act, 1965 — Section 7 — Direction by Chancellor for removal of Respondent No. 4 from the post of Registrar — On ground of lack of requisite qualification — Jurisdiction — Scope of — The provision authorises the Chancellor to cause inquiry of any matter connected with the sphere of such enquiry definitely extends to the question of illegal appointment in violation of statutory provisions — In other words if the appointment is given to a person having no requisite qualification the Chancellor is vested with the power to undo such wrongful act if such decision taken by Chancellor was incorrect the appropriate remedy lay by approaching appropriate legal forum.

       Held :

       In Court opinion, Section 7 of the Act authorizes the Chancellor to cause inquiry in respect of any matter connected with the University and the sphere of such enquiry definitely extends to the question of illegal appointment in violation of the statutory provisions. In other words, if the appointment is given to a person having no requisite qualification as prescribed under the Statute, the Chancellor is vested with the power to undo such wrongful act. [Para ]

       In the case before us, Chancellor has not inquired into any misbehaviour or misconduct of an employee legally appointed but has sought to inquire into the illegal appointment of the Registrar, an important officer, who, it was alleged, had no requisite qualification to become Registrar as fixed in exercise of the power conferred under the Act and on the basis of inquiry so made, has arrived at the conclusion that such appointment was void as the person had no requisite qualifications. Consequently, the University was directed to take step for his removal. [Para 14]

       If according to the University, such decision taken by the Chancellor was incorrect, appropriate remedy of the University or the person concerned lay by approaching the appropriate legal forum for setting aside the order passed by the Chancellor, a statutory authority, being a “State” within the meaning of Article 12 of the Constitution of India. [Para 15]

       (c) Saurashtra Unviersity Act, 1965 — Section 8 and Statute 140 — Registrar of university — Status and jurisdiction — He is an officer of university and head of the university office — He is custodian of common seal and also ex officio secretary of the Senate, Syndicate and Academic Council, Faculties and Board of studies and university — Therefore he definitely exercises a part of sovereign powers of the State — Consequently office of Registrar of University is a public Office.

       Held :

       The Registrar is an officer of the University as mentioned in Section 8 of the Act and is also the Head of the University office. According to Statute 140, Registrar is the custodian of common seal and is also the ex officio Secretary of the Senate, Syndicate and Academic Council, Faculties and Boards of Studies and Board of University. Therefore, Registrar definitely exercises a part of the sovereign powers of the State to impart education, which is conferred upon the University by enactment of law. It is settled law that public office means an office having authority conferred by law and having fixed period and specific power to exercise some portion of the sovereign functions. Thus, we are of the firm opinion that the Registrar of a University exercises a part of sovereign powers vested in the University and consequently, such an office is a public office. [Para 29]

       Law Laid Down :

       No order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law.