HARIKRISHNA SINHA Vs. PATNA UNIVERSITY

JUDGEMENT

(1.) This is an application under Article 133 of the Constitution, for leave to appeal to the Supreme Court against a decision of this Court dismissing the applicant's application for writ of mandamus under Article 226 of the Constitution. The applicant is employed as a laboratory assistant at the Bihar National College, Patna. Previous to the Bihar Act XXV of 1951, the applicant was on the electoral roll of the Patna University maintained under the Patna University Act, 1917. He was on this roll as a voter for the teachers specified in Class III. With the commencement of the Act XXV of 1951, a Senate, a Syndicate and an Academic Council have to come into existence. For this purpose, an election of the Senate had to take place and the Chancellor of the Patna University under the aforesaid Act, fixed the 20th of March 1952 for election of the Class III representative members Clause (i) under the Act for the Senate. The electoral roll which was prepared for this election did not contain the petitioner's name as a voter for the Class III Representative members Clause (i). The petitioner along with other laboratory assistants submitted a memorial to the Chancellor of the Patna University somewhere about the 16th of February 1952, protesting against the exclusion or the laboratory assistants from the list of voters for the aforesaid Class III representatives. The material before me does not clearly indicate as to what was the final order of the Chancellor. I am informed that, in fact, he has passed no order. The petitioner being aggrieved filed an application in this Court for a writ in the nature of mandamus under Article 226 of the Constitution, on the 25th of March 1952, which was summarily rejected by a Bench of this Court on the 26th of March 1952.

(2.) This matter has been argued at some length by the learned Counsel for the petitioner as well as by the Government Pleader. The main contention of Mr. Das has been that the petitioner has the statutory right to be on the list of voters for Class III Representative members Clause (i) having regard to the provisions of the Bihar Act XXV of 1951. He contended that this right was a valuable right, one of the most valuable rights that any individual can have in a democracy. The petitioner had been unreasonably and without justification excluded from the list of voters with reference to the aforesaid Class III representatives and, thus, had been deprived, by an illegal order, of his right to vote. Reference was made to the definition of the word 'teachers' in the aforesaid Act, and it is better to set out that definition. Under Section 2 (p), the word 'teachers' has been defined to include Principals, University professors, professors, readers, lecturers and other persons imparting instruction in departments or institutes established and maintained by the University or in any of its colleges but do not include research scholars or research Fellows. Section 15 of the aforesaid Act provides that the Senate shall consist of certain persons; Class I refers to ex-officio members; Class II to life members; Class III refers to Representatives members and Class IV to nominated members. It is with Class III that we are concerned in the present matter. Clause (i) under this head-Class III reads as follows:

(3.) It was contended by Mr. Das, therefore, that having regard to the definition of "teachers" and what is contained in Section 15, regarding Class III, Representative members Clause (i) the petitioner, who was a laboratory assistant, was undoubtedly a teacher and, therefore, was entitled to vote in the election to the Senate for the Class III Representative members, namely, 35 teachers. Mr. Das referred to the fact, which was not in dispute, that the petitioner was on the list of voters for Class III representatives, namely teachers, under the old Act, i.e., the Patna University Act, 1917. He referred to certain sections of the new Act, namely, the Bihar Act XXV of 1951, which made it clear that statutes, ordinances, regulations, and rules made under the Patna University Act, 1917 which were in force immediately before the commencement of the new Act, shall continue to be in force, so far as they are not inconsistent with the new Act, subject to such modifications and adaptations, if any, as may be made therein by the Vice-Chancellor and approved by the Chancellor. Section 58 of the Bihar Act 25 of 1951 provides that the enactments specified in the Schedule to the Act, in their application to the colleges transferred to, and the departments established, and maintained by, the University under the Act were thereby repealed, provided that all appointments made, orders issued, degrees conferred, privileges granted or other things done under any of the said enactments and in force immediately before the commencement of the Act shall, so far as they were not inconsistent with the Act, will be deemed to have been respectively made, issued, conferred, granted or done under the Act. The Government Pleader, on the other hand, has contended that under Section 55 (2) the Vice Chancellor of the Patna University was to carry on the duties of the University for a period of three months from the commencement of the Bihar Act 25 of 1951; and that under Section 9 (4), the Chancellor of the Patna University could, by order in writing, annul any proceeding of the University which was not in conformity with the Act, the Statutes, the Ordinances and the Regulations. The petitioner could and, in fact, did move the Chancellor against his exclusion from the list of voters with reference to Class III representatives. There was, therefore, another remedy open to the petitioner than that of a writ under Article 226 of the Constitution. He further, contended that under Section 45 of the Bihar Act XXV of 1951, if any question arose whether any person had been duly elected as a member of the Senate, the Syndicate or the Academic Council, the matter should be referred to the Chancellor, whose decision thereon shall be final. His contention in this respect was really to this effect that, if the thirty five teachers, as the Class III representatives under Section 15 of the Act, were elected, the petitioner could still have the matter referred to the Chancellor raising the question whether such persons had been duly elected when the voters' list was incomplete, because those who were entitled to be on this list were not on the list. The Government Pleader also contended that since the application for a writ under Article 226 of the Constitution had been rejected by a Division Bench of this Court and the granting of such a Writ being entirely a matter of discretion, this Court should not grant leave to appeal, because it could not be said, where discretion had been exercised, that it is a fit case for appeal to the Supreme Court. Lastly, the Government Pleader urged that the present application should be dismissed on the ground of convenience, namely, that if leave to appeal to the Supreme Court was granted with the consequent injunction restraining the election to the Senate, the entire functioning of the University would come to an end.