B.R.ARORA,J. - (1.) THE petitioner is a registered graduate of the University of Jodhpur and is serving in the University as Upper Division Clerk. The election to the Senate of the University of Jodhpur from the registered graduates constituency was held in the year 1988. The petitioner alongwith one Mr. Banshi Dhar Purohit contested the election and was declared elected as a Member of the Senate of the University of Jodhpur, for a period of five years under Clause XXIII Sub -division III of Sub -section (2) of Section 15 of the Jodhpur University Act vide Notification dated June 13, 1988, issued by the Registrar of the University of Jodhpur. The petitioner represented as a Member of the Graduates Constituency in the Senate. Certain amendments were made in the Jodhpur University Act, 1962 by the Act No. 1 of 1992. By this amendment, the name of the University of Jodhpur was changed to Jai Narain Vyas University, Jodhpur. Cartain other provisions were, also, amended. Clause XXIII of Sub -Division III of Sub -section (2) of Section 15 of the Act was, also, amended and a anew Clause was substituted in place of the old Clause XXIII. By this amendment, persons in the service of the University or College or connected with the management of an affiliated college or a recognised Hall or Hostel were disqualified for being elected as a Member of the Senate from the Registered Graduates Constituency. This amendment came into force with effect from 3.7.92. After the amendment in Clause XXIII of Sub -Division III of Sub -section (2) of Section 15 of the Act, the Registrar of the University wrote a letter on July 13, 1992, to the petitioner that as he was in the service of the University and, therefore, in view of the amendment made in Section 15(P2)(xxiii) of the Act, he cannot continue beyond March 3, 1992, as a Member of the Senate and, therefore, the notice alongwith Agenda sent to him for attending the meeting on 13.7.92, be treated as withdrawn. The petitioner has challenged this communication annexure. 2 by this writ petition.
(2.) THE main contention, raised by the learned Counsel for the petitioner is that the petitioner was validly elected to the Senate of the University for a period of five years and is entitled to hold the Office upto June 22, 1993, and the amendment in Section 15(2)(xxiii) of the Act or the substitution of the new provision in place of the old provision will not affect the status of the petitioner as a Member of the Senate and he cannot be validly removed from his Membership on the basis of the amendment before the expiry of the term of which he was elected. The learned Counsel for the respondent, on the other hand, has supported the order passed by the respondent and submitted that the petitioner ceases to be a Member of the Senate as soon as the amendment came into force because the persons serving in the University, after coming into force of the new Act, are not entitled to be elected as Member to the Senate. The short point, which requires consideration in the present case is: whether the amended provisions can operate and affect the election of the Members of the Senate which has taken place much before the amending provisions were enacted or they came into operation? Generally, a provision which take away or impairs vested rights does not have a retrospective operation. Retrospective operation cannot be given to a provision so as to impair or imperil the existing right or obligation unless such intention is clearly manifested by the language used in the Act. The amended provisions are to be read as applicable to all subsequent occurrences and prima facie it has to be presumed that the Legislation has addressed to the future needs and not to the past. A general principle of law is that the Legislation by which the conduct of the mankind is to be regulated, deals with the future act and ought not to change the character of the past transactions and the elections already held. The new law ordinarily affect the future transaction and not the past one as has been pointed out by Earel, C.J. in Midland Railway Company v. P.Y.E. (1861) 10 C.B. (N.S.) 179 (191) : 30 LICP 314 in the following words: It manifestly shocks one's sense of justice that an act legal at the time of doing it should be made unlawful by some new enactment. It has, also, been observed by Lord Jensbourge that provision which touches a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Similar view has been expressed by Lops, L.J. in Re: Pulbourough Parish School Board, Bourke v. Nutt (1899) IQB 725 P. 737, that every statute which takes away or impairs vested right acquired under the existing law or create a new obligation and imposes a new duty or attaches a new disability in respect of a transaction already passed, must be presumed to be intended not to have a retrospective effect. In the present case, the election to the Senate was held in the year 1988 and at that time no disqualification was attached to the employees of the University for contesting the election to the Senate from the Graduates' Constituency. Clause XXIII of Sub -division III of Sub -section (2) of Section 15 of the Act, reads as under: 15(2)111 (xxiii). Two persons, not being teachers, elected by the Registered Graduates of the University from amongst themselves. At the time when the petitioner was elected, there was no such disqualification and the election of the petitioner to the Senate was in accordance with law. He was elected for a period of five years. If any amendment has been made after the election of the petitioner to the Senate from the Graduates' Constituency then that cannot affect the election of the petitioner as he did not acquire any disqualification. The life of the elected senate, to which the petitioner was elected, would be governed by the earlier provisions of the law and the election already held for a period of five years would not come to an end automatically on account of the amendment in the provisions. The amended provisions are to be read only with respect to all subsequent occurrences. Simply imposing a disqualification for being elected to the Senate for the future in no way affects the election of the petitioner which has already taken place under the old law. A person who had acquired a right under the repelled Act cannot be deprived of that right on the basis of the amendment unless the legislature, by necessary intendment has stated so. The rights acquired by the petitioner to represent the graduates constituency in the Senate for a period of five years have to last upto the period of five years and cannot be affected by this amendment. The amended provision of Clause XXIII of Sub -Division III of Sub -section (2) of Section 15 of the Act reads as under: 15(2)III(XXIII). Two persons not being in service of the University or College or connected with the management of an affiliated college or a recognized Hall or Hostel, elected by the Registered Graduates of the University from amongst themselves. The language of the provision makes it clear that it has been made applicable only for the future elections and the provision imposes a disqualification on the person being in the. service of the University or College or connected with the management of an affiliated college or a recognised Hall or Hostel to be elected by the Registered Graduates of the University from amongst themselves and does not apply to the persons who were already elected for a period of five years to represent the Graduates Constituency in the Senate. The provisions are intended to regulate only the future elections and the petitioner cannot be deprived of being representing the Graduates constituency for unexpired period on the basis of this amendment and he is entitled to represent the Graduates Constituency in the Senate upto the period of five years. The interpretation taken by the respondent in disqualifying the petitioner from being a Member of the Senate, as well as Annexure. 2 issued by the respondent, deserve to be quashed and set -aside.
(3.) IN the result, the writ petition, filed by the petitioner is allowed. The disqualification of the petitioner, imposed by the respondent, as well as the order Annexure, 2 issued by the respondent, are, therefore, quashed and set -aside and the respondent are directed to allow the petitioner to represent the Graduates' Constituency in the Senate for the unexpired period of five years.;