- (1.) THE facts of this petition are that the petitioner Dr. Kailash Chandra Kotia, professor of Medicine and Cardiology in the S. M. S. Medical College, Jaipur, was nominated by the Chancellor to the Syndicate of the University of rajasthan in Dec. 1974. By an Ordinance that Syndicate was dissolved end Dr. Kotia remained member only from Dec. 1974 to June, 1975. When the new syndicate was constituted, the petitioner was again nominated by the chancellor but it was again dissolved by an Ordinance. This time Dr. Kotia remained a member of the Syndicate from Oct. 1and75 to June, 1977. On 19th aug. 1977, another Act was made amending the University of Rajasthan Act, 1946, by which the Syndicate was dissolved and a new provision for constitution of the Syndicate was enacted by substituting the existing Section 21. The Syndicate now comprised inter alia two teachers to be elected from amongst themselves by the teachers of the affiliated colleges. Sub-section (3)of Section 21 further provided as follows : " (3)--no person referred to in Clauses (iii) to (x) of Sub-section (1)shall be eligible for election and/or nomination for more than two terms. " The Vice-Chancellor proceeded with the election of the two teachers as aforesaid. The petitioner filed nomination papers for contesting one of the seats on 26th Nov. 1977, and 28th Nov. 1977. The nomination papers were scrutinised on 30th Nov. 1977, end the candidature of the petitioner Dr. Kotia was rejected by the Scrutiny Committee on the ground that he had been a member of the Syndicate for two terms. Dr. Kotia challenges by this writ petition the rejection of his nomination papers on two grounds; namely (1)Sub-section (3) of Section 21 by which a new condition has been added cannot operate retrospectively, and (2) he had not been a member of the Syndicate for two terms within the meaning of the aforesaid sub-section; because in the first term he was member only for not more than 8 months and in the second term, he was member for about 21 months, while the full statutory term of a member of the Syndicate is three years. In both cases the Syndicate was dissolved on account of legislative intervention. It was not a case of conclusion of his terms by any volition on his part. The University opposes the petition.
(2.) WHAT strikes to me to be most strange in the University of Rajasthan (Amendment) Act, 1977, (Act No. 8 of 1977) is that it does not in itself provide for the mode of election of the two teachers to be elected out of the teachers of the affiliated colleges, nor does it delegate the power to do so to any other authority. The Senate is empowered to make statutes, the scope of which is provided in Section 27. Syndicate is empowered to prescribe ordinances in respect of matters stated in Section 29 of the University Act. None of these sections delegate the powers to decide the mode of election to any of these two bodies. The Senate of course has the powers to make statutes with regard to constitution, powers and functions of the authorities, boards and committees of the University save 33 provided in the Act and residually with regard to the matter which by the Act are to be or may be prescribed by statutes or which are dealt with in the statutes set out in the schedule to the Act, The schedule does not contain any provision in respect of the mode of election nor has the senate, even if it could, made any statute in this respect, The University in the absence of any such provision relies upon 0. 40 which appears in Chapter XI entitled 'faculties. ' This ordinance is as follows : "0. 40-- In all cases where elections are held at a meeting of any of the authorities, except in cases of casual vacancies and in cases, where the term is for a period of one year or less, the notice of the meeting at which the election is to be held shall be sent to the members at least 30 clear days before the date of the meeting. Nominations shall be gent to the Registrar so as to reach him at least 15 clear days before the day of the meeting, and the Registrar shall send a list of such nominations to the members or the authority concerned at least 8 clear days before the day of the meeting. (In case an election is held by post, the procedure laid down in the case of the election of members from the registered graduates constituency, shall in so far as possible be followed at the discretion of the Vice-Chancellor): provided that where members are to be nominated/appointed or a particular body is to be constituted, nominations may at the discretion of the Vice-Chancellor be invited in the meeting it self and in that case notice of the meeting shall be sent to the members at least 15 clear days before the day of the meeting. "
(3.) IT will be seen without much effort that this ordinance was primarily meant to provide the mode of election which is required to be held at a meeting of any of the authorities, but not for providing a mode of election of persons, which bring about the existence of the authority. This Ordinance cannot be pressed into service for election of the members of the Syndicate as that matter is not within the scope of the Ordinance making power of the Syndicate. Faced with this difficulty, the learned counsel for the respondent University relied upon the powers of the Vice-Chancellor and the Syndicate on whom a duty is cast to carry out the administration of the University. Reference was made to Section 13 and Clause (10) of Section 29 of the Act. Clause (10) of Section 29 empowers the Syndicate to make Ordinances generally on all matters for which provision is, in the opinion of the Syndicate, necessary for the exercise of the powers conferred or the performance of the duties imposed upon the Syndicate by the Act or the Statutes. Now, no power has been conferred, nor is there any duty cast upon the Syndicate by the Act or any statute to provide for the mode of election, for the exercise or performance of which an Ordinance like 0. 40 can be resorted, to. Though, no doubt as per Section 13, the Vice-Chancellor is the principal executive of the University and it is his further duty to see that the act, the Statutes and the Ordinances are faithfully observed and he shall have all powers necessary for this purpose, I have already indicated that the Act and the Statutes make no provision respecting how the election of the teacher members shall take place. I have also explained why 0. 40 can have no application. In that state of affairs, there is nothing which the Vice-chancellor shall have faithfully observed. He has no powers where there is no provision.;