HIMACHAL PRADESH UNIVERSITY Vs. PRAMOD SHARMA

JUDGEMENT

(1.) The power of judicial review has been sought to be exercised by this Court to quash and set aside the impugned order dated 18.10.2017, Annexure P-2, passed by learned H.P. Administrative Tribunal, in O.A. No.4971 of 2017, on the grounds, inter-alia, that the same is without any jurisdiction as grant of interim injunction against statutory provisions is not legally permissible and that in interim the main relief claimed in the original application could have not been granted. Also that the right to contest election being not a Fundamental Right nor a Common Law Right, the impugned amended provisions contained under Ordinance 35.20 of Himachal Pradesh University First Ordinances, 1973 (in short 'Ordinances'), are neither unconstitutional nor violate fundamental rights of the respondent (hereinafter referred to as 'original applicant').

(2.) The original applicant is working as Professor in Business School of Himachal Pradesh University, the petitioner herein, however, hereinafter referred to as the respondent-University in short. He was appointed as Assistant Professor in the year 1997. Also that he had previously contested the assembly elections from Kumarsain and Theog legislative assembly constituencies in the years 2003, 2007 and 2012, respectively. The University teachers as per un-amended provisions contained under Ordinance 35.20 of the First Ordinances, were entitled to contest the State Assembly/ Parliament Elections and also being allowed to avail leave of the kind due for this purpose. However, Ordinance 35.20 was amended by the respondent-University vide notification dated 24.12.2014 (Annexure A-1 to the original application) and thereby made provisions that neither teachers nor employees of the University shall take part in any political activity. According to the original applicant, when the right to contest an election is not only a constitutional right but also a fundamental right granted to citizens under Article 21 of the Constitution of India, the same could have not been restricted by way of carrying amendment in Ordinance 35.20 and thereby imposing restrictions upon the University teachers and employees. The restrictions so imposed have been claimed to be highly unreasonable, arbitrary, oppressive and also in violation of Article 14 of the Constitution of India. Reference has also been made to the provisions contained under Article 171 (3)(c) of the Constitution of India, which provide for a separate constituency exclusively for teachers to the legislative council, a political body. By way of amendment not only the constitutional and fundamental right of the applicant to contest the election, is stated to be abrogated but has also extended a right to respondent-University to initiate disciplinary action against him in case he contests elections during the course of his employment as teacher. It was also urged in the original application that the procedure prescribed under Section 40(2) and 40 (3) of the Statute governing the procedure to be followed at the time of carrying out amendment in the First Ordinances, has also not been followed and observance if any of such prescribed procedure is there, the same is more in its breach rather than in its compliance. To substantiate such claim, it has been averred that the prescribed procedure provided for obtaining the assent of the Chancellor in consultation with the State Government to the proposed amendment is also stated to be missing in this case. It is in this backdrop the original applicant has prayed for the grant of following reliefs:

(3.) In the interim, the operation of impugned notification dated 24.12.2014 (Annexure A-1), was sought to be stayed.