SHAILENDRA NATH SRIVASTAVA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In these writ applications the constitutional validity of Section 40 of Patna University (Amendment) Ordinance, 1982 amending Section 65 of Patna University Act, 1976 and Ordinance 37 of 1982 are under challenge. In view of the change in law certain orders have been passed. They are also under challenge. Thus Annexures 3 and 4 to C.W.J.C. 537/82 and Annexure 1 to C.W. J.C. 566/82 are sought to be quashed. Both the petitioners are members of the State Legislature. Petitioner in C.W.J.C. 537/82 is also a member of the Syndicate and has been made in charge of N.S.S. Scheme. At the stage of admission we have heard the learned counsel for the parties at length. In my view, filing of Counter-affidavit on behalf of the respondents is not necessary. We are, therefore, proceeding to pass final order without adjourning the case for the purpose of enabling the respondent to file a counter-affidavit.

(2.) As it is well known in some of the States bicameral system of Legislature is in vogue. Bihar is one such State. There are two Houses of Legislature -- the Assembly and the Council. 1/12th of the members of the Council are to be elected by electorates consisting of persons who have been for at least three years engaged in teaching in educational institutions within the State, not lower than that of secondary school, as may be prescribed by or under any law made by the Parliament (Article 171 (3) (c) of the Constitution). It is not in dispute that at present both college teachers as well as teachers of secondary schools are eligible to be voters for teachers constituencies. But it is not only teachers, who may be elected from such constituencies. If a person is an elector for any Assembly Constituency in the State, he may be elected to fill a seat in the Legislative Council of a State subject, of course, to the other qualifications as laid down in the Constitution or the relevant law. It is not in dispute that teachers of University and at least one teacher of a secondary school are members of the Legislative Council at present.

(3.) Section 65 of the Patna University Act, 1976 (the Act) deals with 'code of conduct'. Clause (a) of Section 65 (prior to the present amendment) requires teachers to take prior approval of the University for the purpose of contesting an election as a candidate to the State Legislature or the Parliament or being nominated thereto. In the event of being a member of the State Legislature or the Parliament such teacher is enjoined to take leave due or extraordinary leave during the period of the sessions of the State Legislature or Parliament, If he is engaged in the work relating to such Legislature then also he has to take such leave for the period that he is so engaged. He has also to abide by the conditions and restrictions as prescribed in the statute.