JAIN, J. - (1.) THE petitioner in this case is a professor and head of the department of Mining in the Faculty of Engineering, University of Jodhpur. He has come to this court for the issue of a writ of quo-warranto, challenging the appointment of the third respondent Prof. S. C. Goyal as Dean of the Faculty of Engineering being contrary to Statute 14 of the Statutes of the University. He has also asked for a mandamus that this court should direct the respondents Nos. 1 and 2 to appoint him as a Dean, Faculty of Engineering in place of Prof. S. C. Goyal.
(2.) THE University of Jodhpur was created on 12-6 1962 by the Jodhpur University Act, 1962 Act No. 17 of 1962) hereinafter referred to as 'the Act' ). THE University started with as manv as seven Faculties including the Faculty of Engineering. THE Departments of studies assigned to the Facility of Engineering consist of (i) Civil, (ii) Structural, (iii) Mechanical, (iv) Electrical, (v) Mining, and (vi) Metallurgy. Each Faculty has to be headed by a Dean. Except the first Statutes of the University, Senate has been empowered to make statutes under sec. 22 of the Act. THE parties- rely upon the statutes of the University as contained in the schedule in the Handbook of University of Jodhpur (1973 edition ). Statute 14 deals with the the appointment of Dean of each Faculty and the functions that a Dean has to perform. It is this statute which falls for interpretation in the present case. It reads as follows : "14. (1) THEre shall be a Dean of each Faculty who shall be appointed by the Vicechancellor in the following order of preference, namely: (i) Professors in the University or Principals of Colleges and Heads of Institutions by seniority; (ii) Readers in the subjects assigned to the Faculty in which there are no Professors. Note: - (1) THE person to be appointed Dean must profess a subject included in the Faculty concerned. (2) In case, in any Faculty, no person satisfies the above qualifications for being nominated as Dean, the Vice-Chancellor shall nominate a Senior Teacher as Dean in the Faculty. (2) THE Dean shall hold office for a term of three years and no person shall be eligible for reappointment as Dean until a period of at least three years has elapsed after the expiry of his last term: Provided that the Vice-Chancellor may waive this condition for those professional Faculties which have only one Professor. (3) THE Dean of each Faculty shall be the Chief Academic and Executive Officer of the Faculty and shall preside at its meetings. (4) THE Dean shall issue the lecture lists of the University in the Departments comprised in the Faculty, and shall be responsible for the conduct of teaching therein. (5) THE Dean shall have the right to be present and to speak at any meeting of any cornmittee of the Faculty but not to vote thereat unless he is a member of the Committee. The second and the third respondents, who are Chancellor of the University of Jodhpur and Prof. S. C. Goyal, Dean of Faculty of Engineering have not put in appearance. On behalf of the University of Jodhpur, who is the first respondent, a reply has been filed to oppose the writ petition. The facts of the case are not much in dispute. Prof. S. C. Goyal is the senior most Professor in the Faculty and is Head of the Department of Structural Engineering. Prof. M. L. Mathur is the Head of the Depart. of Mechanical Engineering. Shri Alam Singh is another Professor and Head of the Department of Civil Engineering. Dr. B. S. Rao was the Professor and Head in 1968 of the Department of Electrical Engineering. He resigned and left service on 4 12 1971 till then he continued to be the Head of the Department. The petitioner is the Professor and Head of Mining Department from 22-11 1969. Besides these Heads of the Departments in the Faculty of Engineering there are three more Professors (i) Prof. Divakaran in the Civil Engineering from 22-11-1969. (2) Prof. Murthy in the Electrical Department and he became Head of the Department after Dr. Rao left service; and (3) Prof. Bansal is another gentleman in the Electrical Department, working as Professor from May, 1972. There is also no controversy on the various appointments of Deans in the past in this Faculty. Prof. V. J. Garde was the first Dean of the Faculty appointed on 3-12-1962. He left service and Prof. Goyal succeeded him on 18-12-63 being the next senior most Professor. According to statute 14 (2), term of this appointment was for a period of three years, but it so happened that Prof. Goyal went on deputation to the U. P. Agricultural University Pantnagar now known as Pant University of Agriculture and Technology, on 8-11-1966. In this vacancy Prof M. L. Mathur being the next senior man was appointed as Dean by the Vice-Chancellor. For reasons not known Prof. Mathur resigned from the Deanship with effect from 4-12-1968. In this vacancy Prof. Alam Singh was appointed as the Dean. On the date of his appointment there was no one senior to him. He completed his full term of Deanship expiring on 3-12-1971. Next man appointed as the Dean in the Faculty was Prof. B. S. Rao with effect from 4-12-71. It must be noticed here that Prof. S. G. Goyal had returned by that time and was working as Professor and Head of the Structural Engineering. Prof. Goyal, however, challenged the appointment of Prof. Rao by a representation to the Chancellor. According to him, he being the senior most professor alone could be appointed as Dean under the relevant statute. Before the representation could be decided, Prof. Rao resigned and left service. Soonafter that, the Vice-Chancellor appointed Prof. Goyal by his order dated 20-2-72 as Dean. It has been alleged on behalf of the University that the Vice Chancellor after having obtained the advice of the University Legal Advisor submitted the question of appointment of Dean to the, then, Chancellor of the University. The Chancellor in reply, did not agree with the opinion of the legal advisor and he approved the appointment of Prof. Goyal as Dean of the Faculty being the senior most professor in the Faculty on the interpretation of statute 14. This approval from the Chancellor was followed by the impugned order dated 16-6-72 appointing Prof. S. C. Goyal as Dean of the Faculty of Engineering for a term of three years with effect from 20th February, 1972. The petitioner has challenged this order of the Vice Chancellor on the ground that according to the statute 14 (1) and the practice of the University, the Dean of the Faculty could be appointed from amongst the professors by rotation according to their seniority. The submission made on behalf of the petitioner is that all the Professors senior to him have already been appointed as Deans and had their turns and after Dr. B. S. Rao vacated the office of Dean he is the next man in turn to be appointed as the Dean of the Faculty. On the other hand, Mr. Mehta learned counsel appearing on behalf of the University contended that the appointment of Deans as envisaged by statute 14 (1) cannot be by rotation. He frankly admitted that once he himself had the impression that the statute provided for the appointment of Dean by rotation but by a close reading of the statute he is not in a position to support his earlier view. As regards the practice adopted by the University he conceded that in the matter of appointment of Prof. B. S. Rao, the University made an error. While Prof. Goyal was there being the senior most man in the Faculty, Mr. Rao's appointment as Dean was not proper. But he submitted that this cannot lend support to the construction put by the petitioner on Statute 14 (1 ). It has also been urged on behalf of the University that the petition for the issue of writ of quo-warranto does not lie as the office of Dean is not a public office. Reliance has been placed by Mr. Mehta on Vidyodaya University of Ceylon vs. Silva (l), and Dr. P. S. Venktaswamy Setty vs. University of Mysore (2 ). The case before the Privy Council was from Ceylon. Mr. Silva was appointed professor and head of the department of Economics and Business Administration at the Vidyodaya University of Ceylon. By a letter, he was informed by the Vice-chancellor that in a meeting of the council it had been unanimously resolved to terminate his appointment with immediate effect. Prof. Silva sought a writ of certiorari to quash the council's order terminating his service on the ground that the Council were bound to act judicially in terminating his appointment and should, therefore, tell him of the nature of accusations and give him an opportunity of being heard. The Supreme Court of Ceylon granted the writ sought for but in the appeal the Privy Council held that the relationship between the Professor and the University was that of master and servant and was governed by the law governing ordinary contracts, and accordingly certiorari was not available where a master summarily terminated a servant's employment. The principle stated by Lord Reid in Ridge vs. Baldwin (1963)2 All England Reporter 97) was held applicable. On the basis of this finding their Lordships advised her majesty to allow the appeal and set aside order of the Supreme Court. Obviously the facts in the Ceylon case are distinguishable from the facts of the present case. The office of the Dean in the University of Jodhpur is not at the pleasure of the Vice-Chancellor of the University. Dean holds office for a period of three years under Statute 14. The principle laid down in Silva's case or that of Baldwin's cannot be made applicable to this case. In support of the contention reliance has also been placed on the following observations made in the Mysore case referred to above. "professors and the Readers of the University clearly do not exercise any governmental functions nor are they invested with the power or charged with the duty of acting in executing or enforcement of the law. They are merely employees under a statutory body. They cannot therefore in any sense be described as holders of public offices in respect of which quo warranto will lie. " It was further held that the office either may be elective office or one in respect of which a nomination or appointment is made by a specified authority and in the case of elective office there is generally provided the procedure of election petitions which makes it unnecessary for any one to proceed by way of writ of quo warranto. " With great respect, the learned Judges have taken a narrow view of the office in respect of which quo warranto would lie. That apart, the office involved in the present case is not that of Professor or Reader but of Dean of a Faculty In Halsbury's Laws of England, Simonds Edition, Volume 11, P. 146, the learned Author observed that an information in the nature of quo warranto lay in respect of any particular office only if that office satisfies certain conditions. The conditions laid down are that the duties of the office must be of a public nature and the office must be substantive in character. It does not necessarily mean that the office be one entrusted with Governmental functions. Reference may here be made to a bench decision of this court which had an occasion to deal with the question whether the office of Professor and Head of Department of Hindi and the Dean of the Faculty of Arts was a public office. In Mrs. Priti Prabha vs. Dr. G. P. Singh (3), the petitioner challenged the appointment of Dr. G. P. Singh as Professor and Head of the Department of Hindi, as Dean of the Faculty of Arts and member of the Syndicate in the University of Jodhpur. She prayed for quashing the appointment of Dr. G. P. Singh by a writ of quo warranto. One of the questions raised in that case was that writ of quo-warranto did not lie as Dr. G. P. Singh did not hold a public office. Their Lordships after discussing the essential conditions requisite for issuing a writ of quo warranto held that the office of Professor of Hindi Department is a high public office. The relevant observations read as follows : "in the present case, the office of the Professor of Hindi Department, is a high public office. It has been created by statute. It is of a substantive character. The respondent No. 1 has assumed the office although his appointment is in complete violation of the statutory provision. He was not selected by the Selection Committee and was appointed by the Vice Chancellor under the cloak of emergency when, in fact, there was no emergency. In the circumstance, it is an appropriate case for a writ of quo warranto making an order of ouster of respondent No. 1 from holding the office of Professor of Hindi and consequent upon it from holding the office of Dean of the Faculty of Arts and member of the Syndicate. "
(3.) AGAIN in a Single Bench case of this Court, Satish Chandra Sharma vs. University of Rajasthan, Jaipur (4): a question arose whether the office of member of Syndicate is a public office. Tyagi J. after having considered the case law on the point held as follows : "these observations, when read in the light of the duties assigned) to the Syndicate by the Act itself, makes it absolutely clear that the membership of a Syndicate in the University is not only an office but is a public office and as such the petitioner who is a registered graduate of the University has a right to seek for a writ of quo warranto against the respondent who, according to him, have been declared elected in clear violation of the Ordinance made by the Syndicate for conducting the election of its members. " I have examined the various provisions of the Act and Statutes. Under sec. 15 of the Act the Senate is the supreme authority of the University and has the power to review the acts of Syndicate and the academic council and it can exercise all the powers of the University not otherwise provided for by the Act or the Statutes. A dean of Faculty is an ex-office member of this body. Under sec. 16 of the Act Syndicate is the executive body of the University and two Deans are on that body, to be nominated by the Vice-chancellor in rotation. The term of their office is for a period of three years. Under statute 6 all the Deans of the Faculties are the members of the academic council. The term of office of the members of academic council other than ex-officio member is for a period of three years. A dean holds an important position in the Faculty vide Statute 8. According to Statute 14 (3) he is the Chief Academic and Executive Officer of the Faculty and presides at its meetings. The Dean of the Faculty of Engineering is also a member and convener of the Committee of Courses and Studies. The Dean also finds place on the equivalence committee. Having thus regard to the nature of the duties which one has to perform as a holder of the office of Dean, I have no hesitation to hold that the office of Dean of a Faculty in University is a public office and it is of substantive character. I am not only bound by the Bench Decision of this Court but I am also in respectful agreement with the view expressed in the cases of this court referred to. There is, therefore, no substance in the contention that the office of Dean in the University of Jodhpur is not a public office and a petition for an information in the nature of a quo-warranto would not lie. It now brings me to the real controversy between the parties. To resolve this controversy Statute 14 (1) calls for interpretation. At the cost of repetition, statute 14 (1) is extracted below : "14 (1) There shall be a Dean of each Faculty who shall be appointed by the Vice-chancellor in the following order of preference, namely : (i) Professors in the University or Principals of Colleges and Heads of Institutions by seniority; (ii) Readers in the subjects assigned to the Faculty in which there are no Professors. " ;