Back
High Court Of Rajasthan
Judgename : M.L.Jain
KAILASH CHANDRA KOTIA - Appellant
Versus
UNIVERSITY OF RAJASTHAN - Respondent
Civil Writ Petn. 547 Of 1977
Decided On : 02/22/1978
UNIVERSITY OF RAJASTHAN (AMENDMENT) ACT, 1977 - SECTION 21(3) - RETROSPECTIVE OPERATION - ELIGIBILITY FOR ELECTION TO SYNDICATE - INTERPRETATION OF TERM - "TWO TERMS" - WRIT PETITION - MANDAMUS.
Fact of the Case:
The petitioner, a professor at the S. M. S. Medical College, Jaipur, was nominated to the Syndicate of the University of Rajasthan in December 1974. The Syndicate was dissolved in June 1975, and the petitioner was again nominated in October 1975. The Syndicate was dissolved again in June 1977. In August 1977, the University of Rajasthan (Amendment) Act, 1977, was enacted, which amended Section 21 of the University of Rajasthan Act, 1946. The amended Section 21(3) provided that no person shall be eligible for election and/or nomination for more than two terms. The petitioner filed nomination papers for contesting one of the seats on the Syndicate, but his candidature was rejected by the Scrutiny Committee on the ground that he had been a member of the Syndicate for two terms. The petitioner challenged the rejection of his nomination papers by filing a writ petition.
Finding of the Court:
The court held that the impugned provision does not operate retrospectively and operates only prospectively while taking the past into account in order to determine eligibility. It could not be said that it was retrospective because it does not affect any right acquired in the past nor does it attach any new disability in respect to transactions or considerations already past. The right to contest election is not a vested right, the roughest test being that it will not survive if the Act were repealed. The disability now created attaches not to the past terms but to the future candidature. Even if it could be said that it was retrospective, the ordinary rule of construction need not be strictly applied as the provision as I see it has been enacted in larger public benefit. The words no person shall be eligible for more than two terms mean no more than this that a person shall be ineligible if he has been or shall have been a member for two terms. The first contention, therefore, fails but the petitioner succeeds on the other. Where any ineligibility is imposed it has to be strictly construed. It is for determination therefore, whether the petitioner has had two terms. In view of the periods for which he remained a member of the syndicate, in one case it was only 7 months, while in the other it was 19 months, I am unable to hold that the petitioner had two terms. A term according to Sub-section (2) of Section 21 ig nothing but membership held for a period of three years from the date of nomination or election as the case may be. The petitioner was no doubt nominated twice but each time the term of the syndicate was cut short by legislative fiat and therefore, it does not appear to me to be the intention of the legislature that the word term occurring in Subsection (3) means any period not exceeding three years, even where it is snapped by an enactment in the aforesaid manner. It would have been otherwise if the term was reduced by resignation of the petitioner.
Issues: 1. Whether the impugned provision operates retrospectively and affects the petitioner's right to contest the election? 2. Whether the petitioner has had two terms as a member of the Syndicate within the meaning of Section 21(3) of the University of Rajasthan Act, 1946?
Ratio Decidendi: 1. The court held that the impugned provision does not operate retrospectively and operates only prospectively while taking the past into account in order to determine eligibility. It could not be said that it was retrospective because it does not affect any right acquired in the past nor does it attach any new disability in respect to transactions or considerations already past. The right to contest election is not a vested right, the roughest test being that it will not survive if the Act were repealed. The disability now created attaches not to the past terms but to the future candidature. Even if it could be said that it was retrospective, the ordinary rule of construction need not be strictly applied as the provision as I see it has been enacted in larger public benefit. The words no person shall be eligible for more than two terms mean no more than this that a person shall be ineligible if he has been or shall have been a member for two terms. 2. The court held that the petitioner has not had two terms as a member of the Syndicate within the meaning of Section 21(3) of the University of Rajasthan Act, 1946. A term according to Sub-section (2) of Section 21 is nothing but membership held for a period of three years from the date of nomination or election as the case may be. The petitioner was no doubt nominated twice but each time the term of the syndicate was cut short by legislative fiat and therefore, it does not appear to me to be the intention of the legislature that the word term occurring in Subsection (3) means any period not exceeding three years, even where it is snapped by an enactment in the aforesaid manner. It would have been otherwise if the term was reduced by resignation of the petitioner.
Final Decision: The court allowed the writ petition and quashed the cancellation of the petitioner's nomination. The court also directed that the petitioner be allowed to contest the election as one of the teachers to be elected from amongst themselves by the teachers of the affiliated colleges for election as a member of the Syndicate within the meaning of Sub-clause (b) of clause (iii) of Sub-section (1) of Section 21 of the University of Rajasthan Act as amended by the Rajasthan Act. No. 8 of 1977 and the bar of Sub-section (3) of Section 21 shall not apply to his case.
M. L. JAIN, J.
( 1 ) THE facts of this petition are that the petitioner Dr. Kailash Chandra Kotia, professor of Medicine and Cardiology in the S. M. S. Medical College, Jaipur, was nominated by the Chancellor to the Syndicate of the University of rajasthan in Dec. 1974. By an Ordinance that Syndicate was dissolved end Dr. Kotia remained member only from Dec. 1974 to June, 1975. When the new syndicate was constituted, the petitioner was again nominated by the chancellor but it was again dissolved by an Ordinance. This time Dr. Kotia remained a member of the Syndicate from Oct. 1and75 to June, 1977. On 19th aug. 1977, another Act was made amending the University of Rajasthan Act, 1946, by which the Syndicate was dissolved and a new provision for constitution of the Syndicate was enacted by substituting the existing Section 21. The Syndicate now comprised inter alia two teachers to be elected from amongst themselves by the teachers of the affiliated colleges. Sub-section (3)of Section 21 further provided as follows :
" (3)--no person referred to in Clauses (iii) to (x) of Sub-section (1)shall be eligible for election and/or nomination for more than two terms. "
The Vice-Chancellor proceeded with the election of the two teachers as aforesaid. The petitioner filed nomination papers for contesting one of the seats on 26th Nov. 1977, and 28th Nov. 1977. The nomination papers were scrutinised on 30th Nov. 1977, end the candidature of the petitioner Dr. Kotia was rejected by the Scrutiny Committee on the ground that he had been a member of the Syndicate for two terms. Dr. Kotia challenges by this writ petition the rejection of his nomination papers on two grounds; namely (1)Sub-section (3) of Section 21 by which a new condition has been added cannot operate retrospectively, and (2) he had not been a member of the Syndicate for two terms within the meaning of the aforesaid sub-section; because in the first term he was member only for not more than 8 months and in the second term, he was member for about 21 months, while the full statutory term of a member of the Syndicate is three years. In both cases the Syndicate was dissolved on account of legislative intervention. It was not a case of conclusion of his terms by any volition on his part. The University opposes the petition.
( 2 ) WHAT strikes to me to be most strange in the University of Rajasthan (Amendment) Act, 1977, (Act No. 8 of 1977) is that it does not in itself provide for the mode of election of the two teachers to be elected out of the teachers of the affiliated colleges, nor does it delegate the power to do so to any other authority. The Senate is empowered to make statutes, the scope of which is provided in Section 27. Syndicate is empowered to prescribe ordinances in respect of matters stated in Section 29 of the University Act. None of these sections delegate the powers to decide the mode of election to any of these two bodies. The Senate of course has the powers to make statutes with regard to constitution, powers and functions of the authorities, boards and committees of the University save 33 provided in the Act and residually with regard to the matter which by the Act are to be or may be prescribed by statutes or which are dealt with in the statutes set out in the schedule to the Act, The schedule does not contain any provision in respect of the mode of election nor has the senate, even if it could, made any statute in this respect, The University in the absence of any such provision relies upon 0. 40 which appears in Chapter XI entitled faculties. This ordinance is as follows :
"0. 40-- In all cases where elections are held at a meeting of any of the authorities, except in cases of casual vacancies and in cases, where the term is for a period of one year or less, the notice of the meeting at which the election is to be held shall be sent to the members at least 30 clear days before the date of the meeting. Nominations shall be gent to the Registrar so as t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
