Judgement

DAS, C. J. :- This is an application by the Petitioner who is a nominated fellow of the Utkal University, made under Art. 226 of the Constitution for the issue of a writ in the nature of Quo Warranto as against the Vice-Chancellor and certain fellows of the Utkal University, challenging the election of some of them to the Senate of the University in the following circumstances :

2. The application arises out of the requirement in S. 12 of the Utkal University Act, which provides for the compulsory retirement of one-fifth of the elected Fellows of the Senate in rotation at the end of each year. The names of the persons who have to be retired are determined by the process of balloting, to be conducted by the Vice-Chancellor, as provided in the Statutes framed by the Senate under the University Act. The names of those persons who were to retire by the end of December, 1952, were in fact determined by the process of balloting carried out by the then Vice-Chancellor. Thereupon a fresh election to fill those seats was held. The opposite party Nos. 10 to 16 are the persons so balloted out on 26-7-51 and opposite party Nos. 1 to 7 are the persons who were elected in their place and whose term of office as senators commenced from 1-1-52. The opposite party No. 9 is the Vice-Chancellor of the Utkal University.

At the relevant dates the Vice-Chancellor was Sri C. M. Acharyya, and at the presents, Vice-Chancellor is Sri P. Misra. It would appear that to determine the names of personswho were to retire by the end of 1951, an earlier ballot was conducted on 11th July, 1951, At that time, the Vice-Chancellor balloted out only 2 persons, viz., Opposite Party No. 8 and 14; but it is stated that the Vice-Chancellor discovered that to be a mistake. He accordingly cancelled the results of the said balloting: on 17-7-51, and conducted a fresh one, on the 25th July, 1951. The consequential elections thereupon held are now in dispute. It is common ground that the balloting conducted by the Vice-Chancellor on the 11th July, whereby he balloted out only two persons, was a mistake and that a larger number should have been balloted.

The dispute between the contending parties relates to the power of the Vice-Chancellor to cancel the previous balloting and to the correctness of the number of fellows who should have been balloted out at the second balloting i.e., whether it is six or seven. The balloting D/-25-7-1951, was conducted on the looting that the number of persons to be balloted out was seven while according to the petitioner, it was only six. The petitioner challenges the validity of the balloting dated 25th July, 1951, which was conducted on the footing that the number of persons to be so balloted out was seven while according to the petitioner it was only six. The petitioner challenges the validity of the balloting, D/-25th July, 1951, and all the elections consequential thereupon in the circumstances mentioned above, as also the power of the Vice-Chancellor to cancel the earlier mistaken ballot.

3. One objection of a preliminary nature has been raised to the hearing of this application on behalf of the Vice-Chancellor, viz., that prior to the filing of this application, the petitioner presented to the Chancellor of the University, on 21-12-51, an application challenging the validity of these elections under the provisions of the University Statutes, and that by the date when this application to us was filed in this court, and even until actually it came up for hearing on the 17th of March, that application was pending with the Chancellor. The objection raised was that since that alternative remedy had been invoked by the petitioner and was still pending, we should not entertain this application. We did not desire to give any definite ruling on the point at that stage, and left that question as well as some other objections to the entertaining of the petition to be dealt with at the final hearing of this application and had adjourned it