ORDER
K. Ramamoorthy, J.
1. The writ petitioner was an Additional Principal and disciplinary action was taken against him. On 18.04.1984 a charge-sheet was issued which was followed by Memo dated 13.06.1984 and a notice was also issued on 04.07.1984 which was challenged in the writ petition.
2. Before going into the controversy in the writ petition, it is necessary to notice a few facts. On 11.06.1983 the Governing Body was properly constituted is not in dispute. The Governing Body consisted of 20 members. With reference to 8 members there is no controversy and their functioning as members of the Governing Body at the relevant time. The 12 members by the Delhi Administration.
3. On 06.06.1984, the Executive Council of the Delhi University passed a Resolution for the purpose of the administration of the college which was the subject matter of the resolution and the resolution reads as under:
MINUTES OF THE EXECUTIVE COUNCIL’S MEETING HELD ON 6.6.1984
100. Under any other business with the permission of the Chair, the Council was informed that the Council had at its meeting held on 11th June, 1983 granted approval to the Delhi Administration nominees on the Governing Bodies of the following colleges for a period of one year with effect from 11.6.1983:
1). Bharati Mahila College.
2) Gargi College.
3) Kalindi College.
4) Kamala Nehru College.
5) Maitreyi College.
6) Laxmi Bai College.
7) Shyama Prasad Mukherjee College.
8) Vivekananda Mahila College.
9) Satyawati Co-educational College.
10) Sri Aurobindo College.
11) Bhagat Singh College.
12) Moti Lal Nehru College.
13) Shivaji College.
14) Swami Shrddhanand College.
15) Rajdhani College.
The Council was further informed that the Delhi Administration had not so far sent the names of its nominees on the Governing Bodies of these Colleges for approval by the Executive Council. It was felt that it would not be desirable that these colleges were run without properly constituted Governing Bodies. It was, therefore, suggested that the term of the existing nominees of the Delhi Administration on the Governing Bodies of those colleges be extended for a term of three months with effect from 11.6.1984.
The Council accepted the above suggestion and resolved that approval be accorded to the existing nominees of the Delhi Administration on the Governing Bodies of the above fifteen colleges for a term of three months w.e.f. 11.6.1984.
Arising out of the above, it was further pointed out that the panel of names prepared by the Executive Council for nomination of members by the Delhi Administration on the governing Bodies of the Colleges run by them had now become outdated and required revision.
The Council authorised the Vice-Chancellor to set up a Committee to consider the question of revision of the panel of names for nomination of members by the Delhi Administration on the Governing Bodies of the Colleges run by them.
4. The petitioner before final order could be passed by the Governing Body and the Vice-Chancellor who is the approving authority filed a writ petition challenging the validity of the constitution of the Governing Body stating that whatever the action taken by the Governing Body with 12 Members nominees of the Delhi Administration whose tenure had been extended without prior request of the Delhi Administration as required by proviso to Rule 3 of Ordinance XVIII of the University would completely vitiate the proceedings taken by the Governing Body. The Governing Body by resolution dated 24.08.1984 decided to terminate the service of the petitioner. The Vice Chancellor of the Delhi University who is the authority to approve the decision of the Governing Body differed from the view taken by the Governing Body and directed the Governing Body to consider the question of reverting the petitioner to the post as Lecturer having regard to the facts and circumstances. The Governing Body with due difference to the views expressed by the Vice Chancellor decided to revert the petitioner by its resolution dated 02.09.1984. This resolution of the Governing Body is not independently challenged but it is maintained by the learned counsel for the petitioner that if this court finally concludes that the earlier Governing Body was not competent in law in taking decision, the decision of the Governing Body would automatically fall to the ground.
5. The position is that the petitioner is now functioning as Lecturer. There have been subsequent developments as stated in the affidavit filed by the Governing Body about the qualification for the post of the Additional Principal but those need not be considered.
6. The learned counsel for the petitioner fairly confined himself to the direction by the Supreme Court to the validity of the constitution of the Governing Body at the relevant time. The learned counsel for the petitioner Mr. Gupta submitted that the Executive Council of the University no doubt can extend the period of tenure of members of the Governing Body but the ultimate decision of the nomination of the 12 members of the Governing Body so far as the Satyawati Co-education College is concerned, is the Delhi Administration and the Delhi Administration did not want any extension of the 12 members who were nominated earlier and there was no such intimation for extension of the nomination by the Delhi Administration, the resolution of the Executive Council dated 06.06.1984 extending the period of the 12 members of the Governing Body would be without any authority of law and consequently it is void in law.
7. Learned counsel for the petitioner Mr. Anil Kumar Gupta referred to Sections 30 and 31 of the Delhi University Act and also referred to Ordinance 28(3) which reads as under:
The Delhi University Act, 1922:
Section 30: Subject to the provisions of this Act and the statutes, the Ordinances, may provide for all or any of the following matters, namely:
m) the supervision and inspection of Colleges and other Institutions admitted to privileges of the University and
n) all other matters which by this Act or the Statutes are to be or may be provided for by the Ordinances.
Section 31
The Ordinance of the University as in force immediately before the commencement of the Delhi University (Amendment) Act, 1952, may be amended repealed or added to at any time by the Executive Council.
x x x x x x x x x x x x x x x x x
ORDINANCE XVIII (3)(1):
The member of the Governing Body, other than the Principal shall hold office for a period of one year and shall be eligible for reappointment or re-election provided that in respect of teachers’ representatives provisions of sub-clause (2) of this clause shall apply.
Provided that on the expiry of one year the Executive Council may on the request of the Trust/Delhi Administration as the case may be, grant approval to the nominee of the Trust/Delhi Administration on the governing Body for a further period not exceeding six months, not more than 3 months at one time, if it is satisfied that the circumstances so warrant.
8. Learned counsel for the petitioner Mr. Anil Kumar Gupta referred to Section 31(4) of the Act that sub section reads as under:
31(4) All Ordinances made by the Executive Council shall be submitted, as soon as may be, to the Visitor and the Court, and shall be considered by the Court at its next meeting and the Court shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Executive Council, and such Ordinance shall from the date of such resolution cease to have effect.
9. The argument was under the proviso mentioned above the authority to nominate for extension is the Delhi Administration and the occasion to exercise power by Executive Council would arise only if there had been nomination by the Delhi Administration and therefore, the argument of the University that the power would to pass the resolution of the nature that was done is valid though involution to proviso to Ordinance 38(3) cannot be accepted and Section 31(4) speaks of the ultimate authority on whom the entire power vest and the Executive Council cannot clothe itself with the absolute power and what was done on 6.6.1984 and that is bad in law. The learned counsel brought to my notice the letter dated 28.06.1984 from the Delhi Administration. The letter reads as under:
Respected Vice-Chancellor,
One year term of Governing Bodies of colleges, sponsored by Delhi Administration, has ended on 10th June, 1984. It is learnt that you have extended the term of Governing Bodies by three months even though we have more or less constituted Governing Bodies for all the colleges and very soon we are going to send their list to you. Therefore, we do not agree with the extension of the term. In view of this any decision taken by the Governing Body or any college after 10th June 1984, is illegal.
It is requested that the Governing Bodies be approved as per list which we are sending shortly.
10. The learned counsel referred to the judgment of this court reported in B.D.Wadhwa and others Vs. Hardyal Devgun and ors ILR 1973 (II) 678 at page 689 to show that the authority to nominate vests in the Delhi Administration. There is no need to refer to this because that position cannot be controverted. The learned counsel for the petitioner relied upon the judgment of the Supreme Court reported in The State of Haryana Vs. The Haryana Co-operative Transport Ltd. and others. 1977 Lab I.C 32 at 36.
11. The learned counsel for the respondents brought to my notice that the petitioner has filed other writ petition No.2939 of 1984 challenging the subsequent actions of the Governing Body. Learned counsel Mr. Luthra for the University submitted that a public authority has to act in the interests of public having regard to the circumstances under which the public authority has to act. Here was a case where disciplinary action had been initiated against the petitioner. That was to be considered by the Governing Body in accordance with the rules. If there is no properly constituted Governing Body there will be a vacuum and no one could exercise the power of the Governing Body and the entire proceedings against the petitioner would come to a stand still. In other words, the petitioner could have taken advantage of the situation and have gone unpunished for whatever done by him. That was the position with reference to other colleges in Delhi, considering the administrative conveniences of all the Colleges referred to by the Executive Council, the Executive Council exercising its powers passed the resolution to authorise or make it lawful any act of the Governing Body of the colleges mentioned therein. One of the colleges mentioned in the resolution is the college in question. Mr. Luthra, the learned counsel for the respondents submitted that the Delhi Administration must have also taken sufficient interest in nominating members long prior to the expiration to the tenure and as the Delhi Administration failed to act or was negligent of its obligation to the colleges the Executive Council in anticipation of the approval by the Delhi Administration accorded approval to the existing nominees for a term of three months w.e.f. 11.6.1984. According to Mr. Luthra the learned counsel for the Delhi Administration did not nominate any member before the expiration of three months extended period given by the Council in its resolution dated 6.6.1984. According to Mr. Luthra the learned counsel under these circumstances the law would presume that the Delhi Administration had acquiescence with the action of the Executive Council and the letter of the Delhi Administration dated 28.06.1984 cannot in law invalid the action taken by the Executive Council on 6.6.1984. It is now common ground that the Delhi Administration as stated in its letter dated 28.06.1984 did not send its nominee for being considered by the Executive Council before the expiration of the period and nomination made long after the tenure of 12 members had expired.
12. According to Mr. Luthra having regard to the over all facts and circumstances what could be said in favour of the petitioner is that there was some irregularities which law would not recognise when Body entrusted with the authority acts in the interest of the administration. According to the learned counsel the law always favour the exercise of power in public interest and it is only when a authority entrusted with the power fails to discharge its duty then it is accepted that the court would intervene to issue a command to act in the facts and circumstances.
13. The learned counsel further submitted that the petitioner cannot now for the purpose of his case espouse the cause of Delhi Administration which has not said anything against the resolution of the Executive Council that there was no nomination by the Delhi Administration and therefore, whatever decision is taken by the Governing Body was illegal.
14. Mr. V.P. Choudhary, learned Sr. counsel for the Governing Body submitted that in the light of the provisions of the Act and the Ordinance the powers of the Executive Council to pass the resolution dated 06.06.1984 cannot be faulted and the petitioner cannot now in view of the above changed circumstances mentioned in the affidavit as Additional Principal and the governing Body had accepted the decision of Vice Chancellor have reverted the petitioner to the post of lecturer and, therefore, the petitioner cannot be said to suffer any serious prejudice.
15. The submissions made by learned counsel for the petitioner that the resolution passed by the Executive Council of the University on 06.06.1984 is invalid cannot be accepted. The Delhi Administration who is the authority to nominate ought to have discharged its duty before the tenure of the 12 members expired. In the absence of any such communication of the Delhi Administration to the Executive Council the exercise of the power by the Executive Council is perfectly in accordance with law. The Executive Council who is the authority to oversee the activities of the college had to take a decision with reference to the proceedings initiated by the management of the college. The matter cannot be kept pending until the nomination is made by the Delhi Administration. The learned counsel for the petitioner submitted that everything has been done against the petitioner in a great hurry and within a period of two months and that would show malice in law
against the Governing Body and that is the point which cannot be ignored while considering the validity of the decision. The question of malice cannot be gone into in view of parameters laid down by the Supreme Court in the remand order and we are concerned with the constitution of the Governing Body and the resolution of the Executive Council which would validate the constitution of the Governing Body. In the light of this fact, I am of the view that the position of the governing Body as it existed by virtue of the resolution of the Executive Council of the University dated 06.06.1984 is valid in law and the proceedings taken by the Governing Body against the petitioner would be valid and no further question arise for consideration.
16. Learned counsel for the petitioner referred to the rejoinder filed by the petitioner to the counter affidavit at page 601 wherein reference is made to the resolution of the Executive Council of the University passed on 10.04.1983 and that resolution reads as under:
“The Council considered (i) whether the Governing Body without the Trust Nominees could meet and take decisions, and (ii) whether such decisions were legally valid.
1. In accordance with Statute 30(1) of the University every college or Institution shall have a regularly constituted Governing Body consisting of not more than 20 person approved by the Executive Council and including among others at least two representatives of the teaching staff, of whom the Principal of the College or Institution shall be one.”
17. The learned counsel for the petitioner submitted that having regard to the language of the resolution the Governing Body could act without the nominee of the Delhi Administration. I am not able to accept this submission. We do not know what was the provocation of the Executive Council to pass the resolution dated 10.04.1983 and what was the object of that resoution. The University has to deal with so many colleges managed by the societies and in the instant case 12 nominees admittedly nominated by the Delhi Administration and not of any trust. Therefore the arguments of the learned counsel for the petitioner that the Governing Body could have dealt with the matter without the 12 members nominated by the Delhi Administration does not render any help to me in resolving the controversy.
Accordingly the writ petition is dismissed. No order would be necessary to pass in CW No. 2939/84 in view of the disposal of the above writ petition.