S C BARAT Vs. HARI VINAYAK PATASKAR

JUDGEMENT

(1.) IN this application under Article 226 of the Constitution for quashing by a suitable writ an order made by the respondent No. 1, the Chancellor of the jabalpur University, appointing the respondent No. 4, Shri Avadh Bihari Mishra, as vice-Chancellor, and for the issue of suitable directions to the Chancellor for the appointment of Vice-Chancellar of the University in accordance with law. Shri chitale, learned counsel appearing for the Chancellor, has raised the preliminary objection that this Court has no jurisdiction to entertain any proceeding whatever or issue any direction under Article 226 whatever, against the Chancellor. The objection rests on Article 361 and has been raised as the Governor of the State is the Chancellor of the University.

(2.) BEFORE stating the arguments advanced by learned counsel appearing for the parties and examining their tenability, it is necessary to refer briefly to the facts and circumstances in which this petition has been filed. Under Section 9 of the jabal-pur University Act, 1956, the Governor of Madhya Pradesh is the Chancellor. The Chancellor, by virtue of his office is the Head of the University and President of the Court, and when present is required to preside at the meetings of the Court and at any convocation of the University. Sub-section (2) of Section 9 of the Act says that the Chancellor shall have such powers as may be conferred on him by or under the Act. The procedure for the appointment of Vice-Chancellor is laid down in Section 11. According to that provision the Vice-Chancellor is appointed by the chancellor from a panel of not less than three names recommended by a committee constituted in accordance with Sub-section (2 ). This committee is constituted by the Chancellor and consists of three persons. One person is nominated by the Chancellor and the other two are appointed by the Executive council. Sub-section (2) of Section 11 requires that two members "shall be appointed by the Executive Council by single transferable vote from amongst persons not connected with the University or a College. . . . . . . . . . " the Committee constituted under Sub-section (2) is required to submit its panel within one and a half month from the date of its constitution. The petitioners' contention is that the Committee, which was constituted by the Chancellor under section 11 (2), was not validly constituted in that Shri Shriman Narain Agarwal, who was one of the members appointed by the Executive Council on the committee, was disqualified from becoming a member of the Committee as he was a member of the Managing Body of the Govindram Seksaria Commerce college, Jabalpur, and was thus connected with a college; and that consequently the panel of names including that of the respondent No. 4 submitted by the said committee was invalid and no person selected from that panel could be validly appointed as Vice-chancellor to succeed the present Vice-Chancellor, Shri Kunjilal dubey (respondent No. 3), on the expiry of his term. The petitioners pray that the appointment of the respondent No. 4 as Vice-Chancellor be cancelled by a suitable writ, and that the Chancellor and the other respondents be restrained from giving effect to the appointment of the respondent no. 4 as Vice-Chancellor and the Chancellor be required to exercise his power under the Act to appoint a Vice-Chancellor in accordance with law.

(3.) THE argument of Shri Chitale was that Article 361 gave absolute personal immunity to the Governor for all his public acts and partial immunity for all private acts; that the immunity under Clause (1) of Article 361 was not only in respect of the exercise and performance of the powers and duties under the Constitution of his office by the Governor or for any act done or purported to be done by him in exercise of those powers and duties but also in respect of the exercise and performance of the powers and duties conferred on the Governor under any Act or rule and for any acts done or purported to be done in exercise of those powers; and that there were in Clause (1) no words to limit the protection given by that clause to the exercise and performance of the powers and duties under the constitution of his office by the Governor or to acts done in the exercise of those powers. It was said that Section 9 of the Jabalpur University Act made the Governor the chancellor of the University by virtue of his office as Governor and the powers which the Act conferred on the Chancellor were thus the powers conferred on the governor; and that, therefore, under Clause (1) of Article 361 the Chancellor of the University was not answerable to any Court for the exercise and performance of the powers and duties of his office as Chancellor or for any act done or purported to be done by him in the exercise and performance of those powers and duties. Learned counsel submitted in the alternative that if the immunity under Clause (1)was held as not extending to the exercise and performance of the powers and duties conferred under any Act on the Governor not qua Governor but in any other public capacity such as that of Chancellor of an University, and if Section 9 of the jabalpur University Act were to be construed so as to mean that the Governor held the office of the Chancellor not by virtue of his office as Governor but because of the prestige and eminence attached to his personality by the very fact of holding the office, then the Chancellor's acts under the Jabalpur University Act were acts done or purported to be done by the Governor in his personal capacity within the meaning of Clause (4) of Article 361 and no proceeding could be instituted against the Chancellor without giving two months' notice which was not done in the present case. According to the learned counsel, the words 'personal capacity' must be read as meaning 'private capacity' as well as 'public capacity' other than that of Governor. He proceeded to say that if Clause (1) was limited in its application to official acts of the Governor whether under the Constitution or under any Act conferring powers on the Governor qua Governor, then the words "personal capacity" occurring in Clause (4) must be construed widely as the object of Article 361 was to uphold the dignity and prestige of the office of the Governor and to afford protection to the Head of the State for all acts, whether official or non-official, public or private. Learned counsel referred to the marginal note of Article 361 as indicative of the extent of protection given to the Heads of States. It was said that the framers of the Constitution could not have intended to give protection to the governor solely for acts done in his public capacity as Governor or for acts done in his private capacity leaving his acts done in other public capacity unprotected. Referring to Section 110 of the Government of India Act, 1915, and Section 306 of the Government of India Act, 1935, learned counsel said that the restricted protection given by the former provision to the Governors was extended by Section 306 of the Government of India Act, 1935, to all acts of the Governor of whatever nature done by him whether in a personal capacity or otherwise, whether in his capacity as Governor or in any other public capacity; that Section 306 of the Government of India Act, 1935, was before the framers of the constitution and it would not be legitimate to think that they intended to curtail the range of protection given by that section by leaving unprotected the acts of a person holding the office of Governor done in any other public capacity. Learned counsel placed strong reliance on Gnanamani v. Governor of Andhra, AIR 1954 andhra 9.