PROF RATAN KHASNOBISH Vs. CALCUTTA UNIVERSITY

JUDGEMENT

(1.) - The petitioner is a Professor in the Department of Business Management, University of Calcutta, and is an ex-officio Member of the Faculty Council for Post-Graduate Studies in Commerce, Social Welfare and Business Management (hereinafter referred to as "the said Faculty Council"). The petitioner is very much interested in the election of the member of the said Faculty Council to the Council of Under-Graduate Studies and also in the election of the Dean of the said Faculty Council. The composition of the Faculty Councils for Post Graduate Studies is specified in Section 23 of the Calcutta University Act, 1979 which gives the list of such Faculties and the composition thereof. According to section 23(2) (vi) of the Act each Faculty Council of Post-Graduate Studies shall consist of ten teachers of whom five shall be from constituent colleges or professional colleges nominated by the Vice-Chancellor and five shall be the teachers of the University other than the Professors elected by the teachers from amongst themselves. According to the petitioner, in this case five teachers were elected as required but five teachers who were to be nominated by the Vice-Chancellor have not been so nominated and only one teacher has been nominated by the Vice-Chancellor. In this way due to inaction on the part of the Vice-Chancellor the nomination of full five teacher did not take place and the said Faculty Council remains incomplete. The contention of the petitioner is that the non-exercise of power of nomination by the Vice-Chancellor virtually amounts to improper constitution of the statutory body leading to chain reaction in respect of constitution of other bodies. The Vice-Chancellor is to exercise his power under the provisions of the statute and is at the discretion of the Vice-Chancellor to nominate but the Vice-Chancellor cannot refuse to exercise such power of nomination or not exercise such power. The action of the Vice-Chancellor in not exercising statutory duty leads to defect in its composition and shall also lead to further complication. The contention of the petitioner is that without properly constituting the said Faculty Council no election of some categories of Members for the Council of Under-Graduate Studies can take place under section 25 of the Act and as such no Dean can be elected because of the faulty constitution of the said Faculty Council. It is further contended by the petitioner that according to Notice dated 4th November, 1991 the last date of submission for nomination paper was fixed on 18th November, 1991. As the High court was closed on 15th, 16th and 17th November, 1991 the petitioner could not come earlier and the matter was of immediate urgency and therefore it was moved on the 18th November, 1991 as unlisted motion. The petitioner repeated once again that because of the improper and incomplete constitution of the said Faculty Council there cannot be any election of the dean of the Faculty Council for Post-Graduate Studies in Commerce, Social Welfare and Business Management. The petitioner prayed for the cancellation, of the Notification dated 4th November, 1991 so far it relates to election of the Members of the Council for Under-Graduate Studies by the said Faculty Council, a direction commanding the Vice-Chancellor to exercise his owner of nomination of five teachers and to complete the constitution of the aid Faculty Council and order of injunction restraining the University from holding election of the Council for Under-Graduate Studies by the Faculty Councils for Post-Graduate Studies without completing the constitution of the said Faculty Council.

(2.) When the matter was moved on 18th November, 1991 it was submitted by Dr. Debi Pal that as the time for filing the nomination expires at 5 P.M. on that date his client would be deprived from filing the nomination paper. Though there was no such statement in the writ petition that the petitioner was interested in filing the nomination paper and contesting the election still the Court gave liberty to the petitioner till 6 P .M. on 18th November, 1991 to file the nomination paper and extended the filing period for the petitioner by one hour. The learned junior Advocate for the University, Mr. Pranab Chattopadhyay, assured the Court that he himself would be in the Chamber of the Registrar at the University till 6 P .M. so that the Court's order was carried out. But the Court refused to grant any interim order of injunction withholding the election of the Dean of the said Faculty Council. The petitioner did not attend the Registrar's office as was allowed by the Court to file the nomination.

(3.) On behalf of the University of Calcutta the Registrar has filed the Affidavit-in-Opposition. His first contention is that the writ petition is not maintainable because the petitioner is not in any way aggrieved or effected nor he has any legal or constitutional right. As the Notification for the election has already been issued by the Returning Officer, the election must be protected and should not be postponed. The Affidavit further contends the statement by the Registrar that this dispute should be referred to the Chancellor under section 42 of the Calcutta University Act, 1979. It is denied that the petitioner is interested in the election of the Members of the Council Under-Graduate Studies. The inaction on the part of the Vice-Chancellor in not nominating five teachers of the Faculty Council of Post-Graduate studies does not in any way render the said Faculty Council incomplete. The affidavit states that the Vice-Chancellor is entitled to exercise the power of nomination within the prescribed limit and the same has not yet been expired, and the Vice-Chancellor has already nominated one member. It is also stated that further appointments would be made soon as suitability of candidates is decided upon. It is very emphatically stated in the Affidavit that the exercise of power of nomination is the Vice-Chancellor's sole prerogative and he is empowered to exercise such power within the prescribed time limit. The Vice-Chancellor has not refused to discharge his statutory duties and obligations and the statutory body would not suffer for any defect composition. In the Affidavit it is referred that the Supreme Court has observed that the election should be concluded as early as possible and all controversial matters and disputes arising out of election should be postponed till after the election so that the election proceedings might not be unduly retarded or protracted. The Affidavit denied of any illegality and dubbed the writ application as malafide and liable to be dismissed.