Jagdish Sahai, J. -
(1.)BY means of this writ petition filed by Sri Kashi Nath Misra, M. L. A., the order of the Chancellor, respondent No. 1, dated 26-2-1965, appointing under Section 11(1) of the Allahabad University Act (hereinafter referred to as the Act) the respondent No. 2, Sri R. K. Nehru, as the Vice-Chancellor of the Allahabad University, is challenged. It is not necessary to mention all the facts given in the writ petition and the affidavits filed by the parties because there is practically no dispute over them and the questions raised before us being entirely legal, do not require any consideration of question of fact. We would, therefore, give only such facts as would contribute to a correct decision of the questions of law raised before us. The Vice-Chancellor of the Allahabad University is a whole-time officer. Section 11 of the Act deals with the appointment of the Vice-Chancellor. That provision reads:-- "11(1) The Vice-Chancellor shall be a whole-time officer of the University and shall be appointed by the Chancellor from amongst the persons whose names are submitted to him by the Committee constituted in accordance with the provisions of Sub-section (4). (2) The Vice-Chancellor shall, except as otherwise provided, hold office for a period of three years but may relinquish office ay resignation in writing addressed to the Chancellor. The resignation shall ordinarily be delivered to the Chancellor sixty days prior to the date on which the Vice-Chancellor wishes to be relieved. (8) Subject to the provisions of Sub-section (2), the emoluments and other conditions of service of the Vice-Chancellor shall be such as are, or may be, prescribed by Statutes. (4) (i). The Committee referred to in Sub-section (1) shall consist of three persons, namely- (a) one person, not being a person who is connected with the University, a College, an Associated College, a Constituent College or a Hostel, to be elected by the Executive Council; (b) another person, who is or has been a Judge of the High Court of Judicature at Allahabad to be nominated by the Chief Justice of that High Court; and (c) a third person to be appointed by the Chancellor who shall also be the Convener of the Committee; (ii) The Committee shall, as far as may be, at least thirty days before the date on which a vacancy in the office of the Vice-Chancellor is due to occur by reason of expiry of term or resignation under Sub-section (2) and also whenever so required by the Chancellor, submit to the Chancellor the names of three persons suitable to hold the office of Vice-Chancellor. The Committee shall, while submitting the names, also forward to the Chancellor a concise statement showing the academic qualifications and other distinctions of each of the said three persons, but shall not indicate any order of preference. (5) Where a vacancy in the office of Vice-Chancellor occurs or is likely to occur by reason of leave, or any cause, other than resignation or expiry of term, the Registrar shall report the fact forthwith to the Chancellor, who shall- (i) in case the vacancy is or is likely to last for a period exceeding six months, take steps for the appointment of the Vice-Chancellor in accordance with the provisions of Sub-sections (1) and (4); (ii) in case the vacancy is for a period of six months or less, appoint any suitable person to the office of Vice-Chancellor. (6) Notwithstanding anything to the contrary contained in this Section, me Chancellor may, in any case of emergency, of which the Chancellor shall be the sole judge and in any case where the vacancy cannot be conveniently and expeditiously filled in accordance with the provisions of Sub-sections (1) and (4) appoint any suitable person to the office of Vice-Chancellor. Provided that no appointment under this sub-section shall be made for a period of more than six months. Provided further that the appointment so made shall determine on appointment of the Vice-Chancellor in accordance with the provisions of Sub-sections (1) and (4). Explanation--A vacancy in the office of Vice-Chancellor caused under Section 8 of the U. P. Universities Act, 1961, shall also be deemed to be an emergency for the purposes of this Section. (7) Where an appointment is made under Sub-section (6), the Chancellor shall, as soon as may be, take steps for the appointment of a Vice-Chancellor in accordance with the provisions of Sub-sections (1) and (4). (8) Till such time as an appointment a made by the Chancellor under Sub-section (5) or Sub-section (6), the Registrar shall carry on the current duties of the Vice-Chancellor but he shall not preside at any meeting of the University Authorities."
(2.)THE Executive Council elected Shri Sri Prakash, the Governor appointed Sri C. D. Deshmukh and the Chief Justice. Sri M. C. Desai, nominated himself in the Committee constituted under Sub-section 4 of Section 11 of the Act (hereinafter referred to as the selection committee). THE term of the predecessor of Sri R. K. Nehru, Dr. Bal Bhadra Prasad, was to expire on 17-10-1964. THE selection committee had already been constituted, but the names had not been submitted, with the result that the Governor appointed Dr. Bal Bhadra Prasad for a period of six months under Sub-section (6) of Section 11 of the Act. Before the Committee could submit names to the Chancellor, its constitution was challenged by means of Writ Petition No. 4586 of 1964: (AIR 1968 All 45). That petition came up for hearing before R. S. Pathak, J. He held that the Chief Justice could nominate himself, but the election of Shri Sri Prakash was illegal. He, however, did not issue the writ on the ground that the illegality in the election of Shri Sri Prakash was cured by the provisions of Section 45 of the Act.
Shri Sri Prakash has not put in appearance to contest the instant writ petition. It was, however, contested on behalf of other respondents. Sri Shanti Bhushan has appeared on behalf of Sri M. C. Desai, Chief Justice, and Sri K. L. Misra, Advocate General and Treasurer of the Allahabad University, for the remaining respondents except Shri Sri Prakash. Mr. Asif Ansari, who has appeared for the petitioner, has made the following submissions before us:-- 1. That the selection committee was not properly constituted because the election of Shri Sri Prakash by the Executive Council was illegal and Sri M. C. Desai the Chief Justice, could not nominate himself. 2. That Sri R. K. Nehru could not be validly appointed Vice-Chancellor because no ordinance as required by Section 32(2)(f) of the Act providing qualifications of a Vice-Chancellor had been framed. 3. That the Chancellor having nominated Dr. Bal Bhadra Prasad for a period of six months under Sub- section (6) of Section 11 of the Act should have asked for a fresh election Committee being constituted after that period had expired and inasmuch as he did not do so, there was failure to comply with the provisions of Sub-section (7) of Section 11 of the Act. 3(a). We will proceed to deal with the submissions seriatim. (1) A meeting of the Executive Council was convened for May 9, 1964. A notice for that meeting was issued to the members of the Executive Council on 29-4-1964, but no agenda was circulated along with it. The notice did not also mention that it was being convened to elect a person to serve in the selection committee. However, on May 4, 1964, a long agenda consisting of a large number of items was issued and was received by the members residing at Allahabad on May 5, 1964. One of the items in the agenda was to elect a person to the selection committee. The Executive Council did meet on May 9, 1964, but only 16 out of its 23 members were present in that meeting. The selection committee elected Shri Sri Prakash as already said earlier.
It has been contended before us that the election of Shri Sri Prakash is invalid inter alia on the ground that no proper notice was given to the members of the Executive Council for the meeting held on 9th May, 1964. Section 11 does not specifically provide for a notice. There is no other provision also in the Act, the statutes, the ordinances and the regulations specifically dealing with the matter relating to a notice for a meeting of the Executive Council to elect a representative. No doubt, there is a regulation which deals generally with notice for the meeting of the Executive Council, but before we come to that general provision, we would like to consider whether or not the issue of a notice to the members of the Executive Council is implicit in the provisions of Section 11(4)(i)(a) of the Act. That provision clearly speaks of a person being "elected by the Executive Council". It is trite that it would be no election if the date or time of election were not announced sufficiently in advance. When Section 11(4)(i)(a) of the Act speaks of an election, it provides for a real and not a mock election. Besides, in order that there may be an election, there must be an announcement of the date, time and place of election beforehand. In other words an election cannot be held without the time, date and place of the election being first announced well in advance. Consequently it is not only logical to hold, but it is also implicit in the provision itself that every member of the Executive Council must be informed of the date, the time and the place of election fairly well in advance and if that has not been done, there has been no valid election. In Broom's Legal Maxims, 10th Ed. at page 312 it has been stated "it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command." We find support for our view also from Matajog Dobey v. H. C. Bhari, AIR 1956 SC 44 where it was observed as follows- "Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution." Chapter II deals with the Regulations connected with the meeting of the Executive Council. These are general in terms and apply to all meetings. Regulation 4 reads:- "(4) Not less than seven days' notice of a meeting shall be given by the Registrar: Provided that when the nature of the business to be brought before the Council in the opinion of the Vice-Chancellor necessitates an immediate meeting shorter notice may be given, 'but at such meeting no business that is not of immediate urgency shall be transacted'". (Underlined (here into ' ') by us). Neither this provision nor any other specifically requires that the notice should mention the business to be transacted at the proposed meeting or that an agenda should accompany the notice. However this much is clear that Regulation 4 definitely prescribes at least seven days' notice. It is true that in respect of an urgent matter, the period of notice can be reduced, but the Regulation is insistent that at such meeting "no business that is not of immediate urgency shall be transacted." When the law provides for at least seven days notice and restricts the reduction of the number of days only in case of extreme urgency, it is obvious that a notice shorter than seven days is not adequate notice. It is elementary that a meeting would have no meaning without the members first being told for what purpose they are assembling. This is more so if at the meeting special business is to be transacted. Shackleton in his 'Law of Practice of Meetings', 4th Edn., at p. 22, states that- "As to the essentials of a notice, it must state clearly the nature of any special business to be transacted." It may be that if only ordinary routine business is to be transacted, insistence on the notice providing the purpose of the meeting or an agenda being issued along with the notice may be dispensed with, but it cannot be seriously urged that a meeting of the Executive Council held to elect a representative to the selection committee transacts routine business and not special business. Consequently, considering the statutory provisions and relying upon the well accepted principles relating to convening of meetings, Regulation 4 of the Act must be so read as to require that the seven days' notice provided therein should mention the business for which the meeting is being held, or along with the notice a separate agenda should issue.
(3.)THE learned Advocate-General placed reliance upon the circumstance that twentytwo out of twentythree members of the Executive Council reside at Allahabad and the agenda was served on them on 5th May, 1964. He, therefore, contended that those members knew on 5th May, 1964 that one of the purposes for which the meeting was being convened was to hold the election of the representative of the executive Council to the selection committee. Again, placing reliance upon the circumstance that the agenda of the meeting was despatched by post to the twentythird member, Sri Madan Mohan, at his Meerut address, the learned Advocate-General asked up to draw the presumption that the agenda must have reached him on the 7th or the latest on the 8th May, 1964. He, therefore, contended that even Sri Madan Mohan must be presumed to have known that the election would be held in the meeting of the 9th of May, 1964. We are unable to agree with the learned Advocate-General that this was sufficient notice of the date of election. We have already held earlier that it is implicit in Section 11 (4)(i)(a) of the Act that the date of the meeting in which the election of the representative of the Executive Council is to be held must be given sufficiently in advance of the date. We have also held that it is equally implicit in Regulation 4 that the seven days' notice required by that provision should mention the business to be transacted at the meeting or should be accompanied by an agenda specifying the business to be transacted in the meeting. We cannot consider that four days' notice in the case of Allahabad members and one or two days' notice in the case of the Meerut member (and that too on the basis of a presumption) was sufficient compliance with either the provisions of Section 11(4) (i)(a) of the Act or Regulation 4. THE view that we are taking finds support from a Bench decision of this Court in Ram Saran Das v. Municipal Board, Bulandshahr: Writ Petn. No. 384 of 1959, dated 4-2-1960 (All), where this Court observed :-- "This want of circulation of the notice sufficiently before the date of the meeting invalidates the proceedings of that meeting altogether. When the regulation laid down a minimum period which must elapse between the circulation of the notice and the holding of the meeting, it has some purpose and that purpose would be defeated if the requirement is not strictly complied with."
The learned Advocate-General submitted that whatever defect there was in the notice the election was validated by the circumstance that in the next meeting of the Executive Council, the minutes of the meeting dated 9th May, 1964 were confirmed. For the reason that the confirmation of the minutes only results in the correctness of the record being certified and not in validating the business transacted at the meeting, we find no force in the submission of the learned Advocate-General; See R. v. Mayor of York, (1853) 1 El and Bl 588 at p. 594. It was also contended on behalf of the respondents that since no member of the Executive Council has complained about the defect in the notice, the defect has been waived. We are doubtful if in the matter of the election to the selection committee, which is required to submit names for appointment to the high public office of the Vice-Chancellor, the Executive Council was competent to waive the illegality in the election. Besides, it is well settled that the principle of waiver can only be invoked when all the members are present in the meeting: Re, Express Engineering Works, (1920) 1 Ch 466 and Municipal Board Shahjahanpur v. Sukha Singh, AIR 1937 All 264.