- (1.) VINEET Saran, J. Heard Sri Raj Kumar Ojha, learned Counsel for the petitioners as well as learned Standing Counsel appearing for the respondent No. 1, Sri Neeraj Tripathi, learned Counsel appearing for the respondent No. 2 (Chancellor) and Sri B. D. Pandey, learned Counsel appearing for the respondents No. 3 to 5 (University ). Sri B. D. Pandey, Advocate has also been arrayed as respondent No. 6/7 and thus he appears in person also. This writ petition has been filed with the following prayers: " (a) issue writ order or direction in the nature of certiorari quashing the Order dated 07/12/06 passed by the respondent No. 3 (Annexure No. 1) and consequential orders passed thereof and Legal Advise/order dated 07/12/06 tendered by the respondent No. 6 (7) (Annexure No. 2) (b) issue writ order or direction in the nature of mandamus commanding and directing the respondent No. 3 and 6 not to give effect to the legal advise (Annexure No. 2) so tendered by the respondent No. 6 (7), during the pendency of the writ petition. (c) issue writ order or direction in the nature of mandamus, in the light of citation (2006) 8 SCC 304, University of Kerala v. Councils Principal College & Ors. , as the same is binding upon the Sub-Ordinate Courts under Article 141 of the Constitution of India and the Judgment and Order dated 15/12/06 passed by the Single Judge of this Hon'ble Court in C. M. W. P. No. 67893/06, Sri Kant Mishra & Ors. v. State of U. P. & Ors. District Gorakhpur is not binding upon this Court comprising of Hon'ble Single Judge and the Hon'ble Court in the interest of justice and to meet the ends of justice, interpret the law (Citation 2006 (8) SCC 304 in accordance with law. (d) issue any other unit order or direction as this this Hon'ble Court deems fit and proper in the circumstances of the case. (e) award cost of the Petition to the Petitioner. "
(2.) BRIEF facts of this case are that an election of the Students' Union of Deen Dayal Upadhyay Gorakhpur University has been notified on 20-12-2006. (Earlier also the elections were notified on 28-11-2006 but had been postponed.) The petitioner No. 1 wishes to contest the election of the Students' Union. He, however, does not dispute that there are several criminal cases pending against him. It is also not disputed that he has been charge-sheeted in some criminal cases in which criminal trials are going on. It is also a fact that the petitioner No. 1 is already behind bars under the National Security Act. However, he contends that he has not been convicted by any Court of law and thus would be entitled to contest the Students' Union election. Regarding this, it may be mentioned that paragraph 6. 5. 7 of the judgment of the Apex Court in the case of University of Kerala v. Council, Principals' Colleges, Kerala, (2006) 8 SCC 304, provides for a bar on a candidate, who has previous criminal record, from contesting the election. The relevant paragraph 6. 5. 7 of the judgment is reproduced below: "6. 5. 7. The candidate shall not have a previous criminal record, that is to say he should not have been tried and/or convicted of any criminal offence or misdemeanour. The candidate shall also not have been subject to any disciplinary action by the University authorities. " In the case of Sri Kant Mishra v. State of U. P. (Writ Petition No. 67893 of 2006) decided on 15-12- 2006, this Court, while interpreting the aforesaid paragraph 6. 5. 7, has held that any student against whom any trial in a criminal case is going on would be disqualified to participate in the Students' Union election.
(3.) THE submission of the learned Counsel for the petitioners is that had it been the intention of the Apex Court to debar a student who was facing any criminal trial from contesting the election, the same would have been categorically mentioned in the judgment and since the words used in the judgment are that a candidate who has been tried and/or convicted of any criminal offence, hence until there is an order of conviction, the candidate would be entitled to participate in the election. On a bare reading of the said paragraph, it is clear that the candidate should not have been tried and/or convicted of any criminal offence or misdemeanour. Once charge-sheet has been submitted, it would be deemed that the person is being tried of an offence, and as such I am in respectful agreement with the judgment given in the case of Sri Kant Mishra (supra) which holds that the students against whom any trial is going on would be disqualified from participating in the Students' Union election. There is no other interpretation which can be given to the observation of the Supreme Court made in paragraph 6. 5. 7 of the judgment in the case of University of Kerala (supra ). Such interpretation is in line with the report of the Lyngdoh Committee which recommends that the criminal elements amongst the students should be kept away from the Students' Union elections. It would be a different case where a mere First Information Report had been lodged against a student but charge had not been framed. The charge is framed only after the trial Court applies its mind and prima facie finds that the case is worthy of being tried and as such once the charge-sheet has been filed against a candidate, such person is necessarily to be tried of criminal charge.;