- (1.) THIS is a petition under Article 226 of the Constitution of India which has been referred to a larger Bench in view of the nature of the points canvassed.
(2.) IN 1944 the petitioner was appointed as a Professor of Chemistry in the University of Delhi. Consequent upon the appointment of Dr. Sashdri to the Chemistry Department where he was made the Head in 1949 certain disputes arose between the petitioner and the University which led to Civil litigation and certain other proceedings which it is unnecessary to mention. On 26th April, 1951 the services of the petitioner were dispensed with. The petitioner applied under Section 45 of the Delhi University Act, 1922 (hereinafter to be referred to as the Act) for a reference of the disputes between him and the University to a Tribunal of arbitration. No member of the Tribunal having been appointed on behalf of the University under the aforesaid section, Dr. M. N. Saha the member nominated by the petitioner, gave a decision on 17th June 1953 holding inter alia that the petitioner had been acting as the Head of the Chemistry Department till the 6th July 1949 and that his removal from Headship as also his dismissal later were unlawful and illegal. Dr. Saha, however, proceeded to give a declaration that the petitioner was still a Professor in the University. In August 1953 the University filed objections to the award of the Arbitration Tribunal. In May 1954 the award, excepting small portion thereof, was made a rule of the Court. The matter having been taken in appeal was ultimately decided by a Bench of this Court vide University of Delhi v. Or. S Dutt, 58 Pun LR 182. It was held that the appointment of Dr. Sana as the sole Arbitrator was valid but the appeal was allowed. Then following portion from the concluding part of the judgment of my Lord Falshaw (as he then was) may be set out : "there is no doubt that the legality or propriety of the dismissal of Dr. Dutt was a matter which could be referred to the arbitrator for decision, but having decided that Dr. Dutt had been wrongfully and illegally dismissed 1 cannot see how it was open to the Arbitrator to grant Dr. Dutt a declaration that he was still a Professor in the University which no Court could or would give him, and obviously all that the arbitrator could then properly and legally have decided was the amount of compensation or damages to which Dr. Dutt's wrongful dismissal entitled to him. This part of the award and the decree based upon it are in my opinion wholly unenforceable and I consider that this amounts to an error on the face of the sward which renders it invalid and liable to be set aside. " It is alleged in paragraph 11 of the petition that on 22nd March 1955 the petitioner made a representation to respondent No. 1, the Visitor of the University who is the President of India, under Section 7-A of the Act, as amended in 1952, for the annulment of what are characterised as the illegal proceedings of the University by which the petitioner was being prevented from performing his duties as a Professor and receiving his legitimate salary as such. By a letter dated 8th May 1955 the Secretary to the President of India informed the petitioner that all the relevant papers had been forwarded to the Education Ministry. The Ministry acknowledged the receipt of this representation by a letter dated 2nd May 1955. On 17th February, 1955 the petitioner filed an application for leave to appeal to the Supreme Court against the judgment of this Court. The petitioner was informed by respondent No. 1 by a letter dated 18th June 1955 that "action, if necessary, will be taken after the decision of the Supreme Court is known. " On 21st June 1955 the petitioner addressed a communication to the Ministry taking up the position that the Ministry of Education had no powers under the Act to take any action in the matter and the powers which had been invoked vested under Section 7-A in the Visitor alone which could not be delegated by him to anyone. The appeal to the Supreme Court was decided on the 3rd April, 1958, the decision being reported as Dr. S. Dutt V. University of Delhi, AIR 1958 SC 1050. The judgment of this Court was affirmed. The petitioner wrote another letter on 19th September 1958 requesting respondent No. 2 to exercise his statutory powers under the Act as the case had been decided by the Supreme Court. Certain other communications followed. By means of a letter dated the 9th March, 1961, the Under Secretary to the Government of India, Ministry of Education, wrote to the petitioner as follows (copy Annexure 'b') : "i am directed to refer to the correspondence resting with your letter dated the 11th January, 1961 on the subject mentioned above and to inform you that the "resident, in his capacity as the Visitor of the University of Delhi, he has rejected your representations. " The petitioner sent a letter dated 15th March 1961 questioning the right of respondent No. 2, namely, Secretary to the Central Government in the Ministry of Education to take a decision in the matter. It is stated in para graph No. 21 of the petition that no decision was ever taken by the Visitor himself and that the alleged decision was given by some Secretary/deputy Secretary/under Secretary in the Government of India, Ministry of Education. This, according to the petitioner, is wholly illegal as the President of India was a 'persona designata under the Act and could not function as President under the Constitution in that capacity. The Additional Private Secretary to the President wrote to the petitioner on 4th April 1961 that although it was true that the President was the Visitor of the University but he did not function in his discretion or as the final Court of appeal in relation to the Delhi University. It was the Ministry which should be approached in all such matters. The petitioner filed an affidavit dated 18th September, 1961, the paragraph 3 of which is as follows : "that the petitioner met the first respondent personally and was told that this function under Section 7-A (7) of the University Act in the matter of the disposal of the petitioner's representation had been exercised by the Ministry in his name and that the first respondent had not personally given any decision in the matter,"
(3.) ON behalf of respondent 1 and 3, an affidavit of Shri T. S. Bhatia, Under Secretary, Ministry of Education, has been filed in opposition to the petition. It is unnecessary to set out in detail the contents of the affidavit. It may be slated that no order or orders have been produced before us to show that the representation cr representations of the petitioner had at any stage or (sic) received the individual attention of the President of India or that he had made any orders thereon or in respect of them. The position taken up on behalf of the respondents substantially is that the Visitor Is identified with the President of India and as such he exercises his functions in the manner envisaged in the Constitution. It has also been strenuously contended by the learned Attorney General and 'ex facle' on the averments and the allegations contained in the petition as also the reliefs sought in the petition must fail (sic ).;