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PETITIONER: GUJARAT UNIVERSITY

       Vs.

RESPONDENT: N.U. RAJGURU AND ORS.

DATE OF JUDGMENT10/11/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR   66            1988 SCR  (1) 899  1987 SCC  Supl.  512     JT 1987 (4)   307  1987 SCALE  (2)1093

ACT:      Election of  teachers  to  the  court  of  the  Gujarat University-Provisions of  the Gujarat  University  Act-1949, relating thereto.

HEADNOTE: %      The University  of Gujarat  held election of 28 members of the  Court of  the University  out of  42 members, as the election with  regard to  the 14 seats had been stayed by an order of  the High  Court. The  respondents-teachers filed a writ petition  in the  High  Court  for  setting  aside  the election of  the 28  members and  holding fresh election for all the  seats. The High Court set aside the election to the 28 seats  and directed the holding of fresh election for all the 42 seats. Aggrieved by the decision of the High Court in the writ petition, the appellant appealed to this Court.      Allowing the appeal, the Court, ^      HELD: The High Court committed an error in entertaining the  writ   petition  and  interfering  with  the  election. Election to  the membership  of the  court of the University and the  determination of the disputes relating thereto, are regulated by  the provisions  of the Gujarat University Act, 1949. Under  section 58  as substituted by the Gujarat Act 9 of 1983.  Under the  provisions of  the Act,  if  a  dispute arises with  regard inter alia to the election of any member of any  authority or  other body of the University, it shall be referred  to the State Government, which shall decide the matter and the decision of the Government shall be final. It is  well-settled  that  where  a  statute  provides  for  an election and  a machinery  or forum to determine any dispute arising out  of that  election, the  aggrieved person should pursue his  remedy before the forum provided by the statute. It is not permissible to invoke the jurisdiction of the High Court by  a writ petition, by-passing the machinery provided by the  Act for  the determination  of the election dispute. The remedy  provided by  the statute must be followed except where  exceptional,  extraordinary  circumstances  exist  to justify the  by-passing of  the alternative remedies. In the present case,  there  existed  no  circumstance,  justifying

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departure from this rule and the High Court was not right in entertaining the writ petition. [902B; 903B-C, G-H; 904B] 900      K.K Shrivastava  etc. v.  Bhupendra Kumar  Jain & Ors., AIR 1977  SC  1703;  Ramjibhai  Ukabhai  Parmar  v.  Manilal Purushottam Solanki  & Anr.,  AIR 1960  Gujarat 19, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2321 of 1984.      From the  Judgment and  order  dated  7.2.1984  of  the Gujarat High  Court in Special Civil Application No. 5985 of 1983.      Dr. Y.S.  Chitale, P.H.  Parekh, D. Chandrachud, Sanjay Bharati, S.N. Shelat and M.K.S. Menon for the Appellant.      B.K. Mehta and H.J. Jhaveri for the Respondents.      The Judgment of the Court was delivered by      SINGH, J.  This appeal is directed against the judgment of the  High Court  of  Gujarat  dated  7th  February,  1984 setting aside  the election  of 28  teachers to the Court of the Gujarat University and the consequential order directing the University  to hold  fresh election  for the  42 members constituency to the court.      Briefly the facts giving rise to this appeal are these. The Gujarat  University is  constituted under the provisions of the  Gujarat University  Act, 1949. Section 15 of the Act designates the  "Court" as  an authority  of the University. Section 16  provides for the constitution of the "Court", it consists of  two classes of members, ex-officio, and elected members. Section 16(1) provides for election to the category of ’ordinary members of court’. Clause (A) (VIII) of Section 16(1) lays down that 42 members shall be elected by teachers of affiliated  colleges (excluding  Deans of  Faculties  and Principals of  Colleges)  from  amongst  themselves  in  the manner specified  in the statutes. Sections 28 and 29 confer power on  the Court  to frame statutes in respect of matters which by  the Act  are required  to  be  prescribed  by  the statutes.  Statute   10(3)  of  the  University  of  Gujarat provides for election of 42 members to the court by teachers excluding Deans  of Faculties  and Principals of Colleges in the manner  specified therein.  It further  provides that 14 members shall  be elected  to the  court by  the teachers of Faculty of Arts and Education, out of which 10 members shall be elected  by teachers  having teaching  experience  of  10 years or more, while the remaining 4 shall be elected by the teachers having  experience of  less than  10 years. Statute 10(3) further provides for election of GUJARAT UNIVERSITY v. N U. RAJGURU [SINGH, J.l 901 901 28 members  to be elected by the teachers working in various other  Faculties   of  the   affiliated  colleges   of   the University. The term of the office of the elected members of the Court  is five years. The Registrar of the University by a notification  dated August 25, 1983 notified programme for holding the  election of  42  members  by  the  teachers  of affiliated colleges from various faculties. According to the notification election  was  scheduled  to  be  held  on  9th October, 1983.      Three teachers,  two of whom belonged to the Faculty of Education and  the third  belonging to  the Faculty of Arts, challenged the  holding of  the election  by means of a writ petition before  the High  Court (Writ  Petition No. SCA No.

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4682 of  1983) on  the ground that in view of the separation of the  Faculty of  Education from  the Faculty of Arts as a result of  the amendment  of  Section  23  by  the  Amending Gujarat Act  10 of  1982, the  allotment of 14 seats for the Faculty of  Arts, and  Education was illegal. They contended that in view of the separation of the two Faculties separate seats should  be allotted  to  the  two  Faculties  for  the election of  teachers to the court. Petitioners of that writ petition claimed interim relief for the stay of the election of 42  representatives of  teachers to  the Court.  The High Court, however,  granted a  limited interim  relief, staying the process of election with regard to the fourteen seats of Arts and  Education Faculties only, no stay order was issued with regard  to holding  of election  of  the  remaining  28 seats.  In   order  to   implement  the  interim  order  the University  issued   notification  on  27th  September  1983 notifying the stay of election to the 14 seats but it stated that the  election with  regard to remaining 28 seats in the teachers’ constituency  shall be held as scheduled. Election to the  28 seats  from the  teachers’ constituency  of other Faculties was  held on  9th October,  1983.  The  respondent teachers of the University participated in the election, but before the  declaration of  the result  of the  election the respondents filed  writ petition  under Article  226 of  the Constitution (SCA  No. 5085  of 1983)  seeking the relief of setting aside  the election  of 28 members and for the issue of a writ of mandamus directing the University to hold fresh election for all the Faculties in accordance with the system of proportional representation and single transferable vote. Before the  High Court  respondents’ main grievance was that since  the   election  to   14  seats   from  the  teachers’ constituency of  Faculty of Arts and Education was stayed by the High  Court, elections  to the  remaining 28 seats could not validly be held on account of the system of proportional representation by  single transferable  vote. The High Court accepted the contention raised on behalf of the respondents, set  aside  the  election  to  28  seats  and  directed  the University to hold fresh election to the court for 42 seats 902 from amongst  the teachers  of various Faculties. Aggrieved, the Gujarat University has preferred this appeal.      After hearing  learned counsel  for the parties at some length we  are of  the opinion that the High Court committed an error  in entertaining  the writ petition and interfering with the  election. Election  to the membership of the court is regulated  by the  statutory provisions  contained in the Act, and  it also provides for the determination of election disputes. Section  58 as substituted by the Gujarat Act 9 of 1983 which  came into  force on  25.1.1983 provides  for the determination  of   disputes  as   to  constitution  of  any University authority. It reads as under:           "58. Disputes  as to  constitution  of  University           authority or body-           Where  any   question   arises   as   to-(1)   the           interpretation of any provision of this Act, or of           any Statute, ordinance, Regulation or Rules. Or           (2) whether  a person  has been  duly  elected  or           appointed as, or is entitled to be or ceases to be           entitled to be, a member of any authority or other           body of the University           (a) it  may be referred to the State Government if           it relates  to a  matter specified  in clause (1),           and           (b) it  shall be  referred to the State Government           if-

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         (i) it  relates to  a matter  specified in  Clause           (2), or           (ii) if  twenty members  of the  court so  require           irrespective of  whether it  relates to  a  matter           specified in  clause (1)  or Clause  (2), and  the           State Government  shall after  making such inquiry           as it  deems fit  (including giving opportunity of           being heard  where necessary)  decide the question           and its decision shall be final."      Under the  aforesaid provision if a dispute arises with regard to  the constitution of any of the authorities of the University, it  should be  referred to  the State Government for determining the same. It firstly provides that where any question arises as to the interpretation of any provision of the Act,  or of any Statute, ordinance, Regulation or Rules, it may  be referred  to the  State Government.  Secondly, it lays 903 down that  if a  question arises  whether a  person has been duly elected or appointed as, or is entitled to be or ceases to be  entitled to  be, a  member of  any authority or other body of  the University,  it shall  be referred to the State Government.  Section  58(2)(a)  provides  that  the  dispute relating to  interpretation of  any provision  of the Act or Statute ordinance,  Regulation or  Rules may  be referred to the Government  while Clause (b) of Sub-section 2 of Section 58 contains  a  mandatory  provision  that  if  the  dispute relates to  the question  whether a  person  has  been  duly elected or appointed to any authority of the University such a dispute  shall be  referred to the State Government. There is no option or discretion. If such a dispute arises, it has to be  referred to  the State Government for determining the same. If 20 members of the Court raise a dispute relating to a matter  specified in Clause (1) or Clause II of Section 58 it shall  be referred  to the State Government and thereupon the State  government shall  after making such enquiry as it may deem fit, decide the question. The legislative intent is manifestly clear  that any  dispute relating  to the matters covered by  Section 58  should  be  referred  to  the  State Government for  its decision  and  such  decision  shall  be final.  By   enacting  Section   58,  the   legislature  has constituted a  forum for  the determination  of disputes  in respect of  matters specified  therein. Since the "Court" is an authority  of the University as declared by Section 15 of the  Act,  Section  58  provides  an  effective  remedy  for challenging the  election of  a member  to the  Court of the University. Any  person aggrieved  by the  election  of  any manner to  the Court  has right to challenge the same before the State Government by raising a dispute in accordance with Section 58.  In the instant case, the respondents could have availed the  alternative remedy available to them before the State Government  under Section  58 of the Act. Instead they challenged the  validity of  the election  before  the  High Court under Article 226 of the Constitution. The respondents had challenged  the validity  of Statute 10(3) in their writ petition but  they did  not press  that question  before the High Court as stated in the judgment under appeal.      It is  well settled  that where  a statute provides for election to an office, or an authority or institution and if it further  provides a  machinery or forum for determination of dispute  arising out  of election,  the aggrieved  person should pursue  his remedy  before the  forum provided by the statute. While  considering an  election dispute  it must be kept in  mind that  the right  to vote,  contest or  dispute election is  neither  a  fundamental  or  common  law  right

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instead it  is a  statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitu- 904 tion by-passing  the machinery  designated by  the  Act  for determination A  of the  election  dispute.  Ordinarily  the remedy provided  by the  statute must be followed before the authority designated  therein. But  there may be cases where exceptional or  extraordinary  circumstances  may  exist  to justify by-passing  the alternative remedies. In the instant case, there  existed no  circumstances justifying  departure from the  normal rule  as even the challenge to the validity of statute  10 was not pressed by the respondents before the High Court.      We do  not consider it necessary to burden the judgment by referring  to decisions  of this  Court laying  down  the principle that where a statute provides a complete machinery for obtaining  relief  against  the  orders  passed  by  the authorities a petitioner cannot be permitted to abandon that machinery and  to invoke  the jurisdiction of the High Court under Article  226 of  the Constitution.  We  would  however refer to  a decision  of this Court in K.K. Shrivastava etc. v. Bhupendra  Kumar Jain and other, AIR 1977 SC 1703 where a defeated candidate  at the election to the membership of the Bar Council  of Madhya  Pradesh moved  the High  Court under Article 226  of the Constitution challenging the validity of the election.  The High  Court was  conscious  that  equally efficacious remedy was available to the petitioner under the rules but  even thereafter  the High Court interfered on the ground that  since the  entire election  was  challenged  an election petition could not be an appropriate remedy and the same could  not be  considered  as  an  equally  efficacious remedy. This Court set aside the High Court’s order. Krishna Iyer, J. speaking for the Court observed:           "It is well settled law that while Art. 226 of the           Constitution confers  a wide  power  on  the  High           Court there  are equally  well settled limitations           which this Court has repeatedly pointed out on the           exercise of  such power.  One  of  them  which  is           relevant for  the present case is that where there           is an  appropriate or  equally efficacious  remedy           the Court  should keep its hands off. This is more           particularly so  where the  dispute relates  to an           election.  Still   more  so   where  there   is  a           statutorily prescribed  remedy which  almost reads           in mandatory terms. While we need not in this case           go to  the extent  of stating  that if  there  are           exceptional  or  extraordinary  circumstances  the           Court should  still refuse  to  entertain  a  writ           petition it is perfectly clear that merely because           the challenge  is to  a plurality  of  returns  of           elections, therefore  a writ petition will lie, is           a fallacious argument. 905      We have  already referred  to Section 58 which provides for the determination of dispute relating to election to the membership of  any authority  of the  University. Since  the Court  is  an  authority  of  the  University,  the  dispute relating to  the validity of the election of 28 members from the teachers’  constituency  of  various  faculties  of  the affiliated colleges of the University could have been raised before the  State Government. The High Court committed error in entertaining  the petition and setting aside the election of 28 members of the Court.      Learned counsel  for the  respondent urged that Section

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58 does  not confer any right on an aggrieved person to have a  dispute  relating  to  election  referred  to  the  State Government. He placed reliance on the decision of a Division Bench of  the High  Court in  Ramjibhai  Ukabhai  Parmar  v. Manilal Purushottam  Solanki and  Another, AIR  1960 Gujarat 19. In  that case  the High  Court interpreted Section 58 of the Gujarat  University Act  as  it  existed  prior  to  its amendment in  1983. The High Court held that since a dispute could not  be referred to the State Government unless it was raised by  20 members of the Court, alternative remedy could not be  available to  an aggrieved  person. Section  58  was substituted by  the Gujarat  Act 9  of 1983  which came into force with  effect from 25.1.1983. Under the amended Section a dispute raised by an aggrieved person relating to election of a  member to  an authority  of the  University  shall  be referred to  the Government  for adjudication. Now it is not necessary that  the dispute  should be referred to the State Government only  when 20 members of the Court so require. On the other  hand,  reference  shall  be  made  to  the  State Government  even   if  a  dispute  is  raised  by  a  single individual  provided   such  dispute  relates  to  a  matter specified in  Section 58(2)  of the  Act.  The  decision  in Ramjibhai Ukabhai  Parmar’s case  does not  apply in view of the amendment of Section 58.      In the  result we  allow the appeal set aside the order of the High Court and dismiss the writ petition filed by the respondents. There will be no order to costs. S.L.                                         Appeal allowed. 906