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Dr. (Hafiz ) Mohd. Ilyas v. Vice Chancellor & Others - WRIT - C No. 41713 of 2000  RD-AH 3 (25 January 2001)
Civil Misc. Writ Petition No. 41713 of 2000
Dr. (Hafiz) Mohd. Ilyas ........................................Petitioner
Vice Chancellor, Aligarh, Muslim University,
Aligarh and Ors..............................................Respondents.
Hon. R.K. Agrawal, J.
The petitioner Dr. (Hafiz) Mohd. Iliyas has filed the present writ petition seeking writ, order or direction in the nature of certiorari quashing the order dated 11.9.2000 whereby the Registrar, Aligarh Muslim University, Aligarh( hereinafter referred to as the University), has informed the petitioner that the Vice Chancellor has ordered for repoll.
Briefly stated facts giving rise to the present petition is that the election for two representatives of lecturers to the Executive Council was notified on 17.8.2000. Five persons remained in fray, thus necessitating polling of votes. The polling was held on 4.9.2000. According to the petitioner, the result was declared in the evening on 4.9.2000 itself by the Chief Election Officer and the same was also published as news item in newspapers namely, Dainik Jagran and Amar Ujala. Subsequently, some representation was made by the petitioner vide letter dated 6.9.2000 before the Chief Election Officer, wherein certain discrepancies in the casting of votes was alleged. According to the petitioner, he had also made representation to the Vice Chancellor of the University as a precautionary measure since he was given to understand that some representation had been made by some candidate to the Vice Chancellor directly. Copy of the representation made to the Vice Chancellor is contained in annexure 8 to the writ petition. The petitioner also requested the Chief Election Officer to notify the result.
I have heard Shri Ashok Khare, learned Sr; Counsel assisted by Shri A. A. Khan learned counsel on behalf of the petitioner and Dr. R.G. Padia learned Sr. counsel assisted by Shri Dilip Gupta learned counsel on behalf the respondent nos. , 1 2 and 3 and Shri J. J. Munir and Shri Promod Bharadwaj learned counsel for the respondents no. 4 and 5 respectively.
The learned counsel for the petitioner submitted that under the Rules for Election to the Executive Council under Statute 13(1)(xi) of the Statutes of the University a copy whereof is contained in annexure 4 to the writ petition, Rule 3(1) provides that the Electoral list may be inspected in the Office of the Deans of Faculties/the Chairman of the Departments/Principals of Colleges/Institutions etc. Any objection/representation regarding errors of omission or commission in the list should be made in writing to the Chief Election Officer within the specified time and date notified separately with election schedule, which was notified as 24.8.2000. Sub-rule (b) provides that no alteration or additions shall be made in the electoral list after it has been finalized subsequent to the disposal of objections /representations. Sub-rule (b) of Rule 4 provides that the voters whose name figure in the final Electoral list but whose terms of service expire before the actual date of polling will be entitled to vote only if they provide a proof of their extension/appointment from the Registrar . Rule 15 provide that No objection regarding polling/counting of votes and other allied matters shall be entertained after 48 hours of the declaration of the election results. Whereas Rule 16 provides that all rights of decision/interpretation or clarification of the forgoing shall vest in the Chief Election Officer provided that any appeal against the decision of Chief Election Officer by any aggrieved party may be made to the Vice-Chancellor within two days of the impugned decision, and the latter's decision shall be final.
The learned counsel for the petitioner has submitted that under Rules 15 and 16 of the Election Rules referred to above, the Chief Election Officer is to entertain any objection regarding polling/counting of votes and other allied matters within 48 hours of the declaration of the election result. He further submitted that the decision in this behalf has to be made in the first instance by the Chief Election Officer and an appeal has been provided against the decision of the Chief Election Officer to the Vice Chancellor. The appeal has to be filed within 48 hours of the impugned decision. He, therefore, he submitted that admittedly in the present case if such representation/objection regarding polling/counting of votes have not been filed by any person before the Chief Election Officer within 48 hours of the declaration of result, and if there is no order by the Chief Election Officer, the Vice Chancellor shall not at all be justified in directing for repolling in respect of second seat . He further submitted that the Vice Chancellor has been constituted to be an Appellate Authority and can only to decide the appeal filed by any person aggrieved against any order passed by the Chief Election Officer, and therefore, the order directing for repoll of second seat by the Vice Chancellor is wholly illegal and without jurisdiction and also without the authority of law. He could not have usurped the powers of Chief Election Officer. In support of aforesaid plea, the learned counsel for the petitioner relied upon the decision of the Division of this Court in the case of Dr. Ganesh Prasad Vs. Chancellor, Purvanchal University, Jaunpur and others reported in 1996(3) E.S.C. 488(All)]. wherein this Court has held that the Vice Chancellor being an Appellate Authority against the decision of the of the Principal could not have exercised the original jurisdiction which is vested in the Principal. While holding so this Court had followed the decision of the Hon. Supreme Court in the case of Surjit Ghosh Vs. Chairman and Managing Director United Commercial Bank and others reported in [(1995)1 U.P.L.B.E.C. 566].
Without prejudice to the above contention, in the alternative he submitted that every voter was entitled to caste two votes and according to him certain voters the details of which have been given in paragraph 1 of the petition cast only one vote and it cannot be said with certainty that the polling of only the second seat had been vitiated requiring a repoll on that seat alone. Therefore according to him, the order of the Vice Chancellor in so far as it direct the repoll of the second sheet is wholly illegal as entire poll ought to have been cancelled and ordered for repoll. In support of the said plea the learned counsel relied upon the decision of the Hon. Supreme Court in the case of Bhabhi Vs. Sheo Govind and others reported in AIR 1975 S.C. 2117 and submitted that it cannot be said that who voted for whom and therefore, illegality if any committed would be reflected in the entire election and not only in the second seat.
Dr. R.G. Padia , however, submitted that present writ petition filed by the petitioner challenging the election process is not maintainable. In support of said plea he relied upon the decision of this Court in the case of Basant Prasad Srivastava and another Vs. State of U.P. and another reported in (1993)2 UPLBEC 1333, . He also relied upon the decision of Hon. Supreme Court in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 S.C. 851, and submitted that the Rules governing the election have taken care of the present situation and, therefore, the Vice Chancellor was justified in ordering for repoll in respect of the second seat. He further relied upon the decision of Hon. Supreme Court in the case of Election Commission of India through Secretary Vs. Ashok Kumar and others reported in J.T. 2000(9) S.C. 529 and submitted that the writ petition challenging the election process is not maintainable.
Having heard the learned counsel for the parties, I find that it is not in dispute that the election for two seats of representative of the lecturers in the Executive Council of the University is governed by the Rules framed by the University. Rule 15 and 16 of the aforesaid Rules, vest power of deciding objection regarding polling/counting of votes and other allied matters to the chief Election Officer and an appeal has been provided against any order passed by the Chief Election Officer, to the Vice Chancellor.
Admittedly in the present case the Chief Election Officer, had not decided the matter and, therefore, order passed by the Vice Chancellor on the representation made by any of contesting person was not maintainable. The decision given by the Vice Chancellor, thus, was wholly without jurisdiction and cannot be sustained. He was to act as an Appellate Authority under Rule 16 of the Election Rules and not as original authority to decide any matter. When the Rule designate the Vice Chancellor as an Appellate Authority against the order passed by the Chief Election Officer, then the Vice Chancellor can exercise his power where an appeal has been filed and not otherwise . As held by this Court in the case of Ganesh Prasad Vs. Chancellor Purvanchal University (supra) that the Vice Chancellor being the Appellate Authority against the decision of the Principal could not have exercised the original jurisdiction vested in the Principal, the impugned order of the Vice Chancellor as communicated by the Registrar by letter dated 11.9.2000 ordering for repoll of second seat as contained in annexure 10 to the writ petition cannot be sustained and is liable to be set aside
So far as the question of maintainability of the present writ petition is concerned, in the present case admittedly the election was held and the result was declared. The result of one seat was cancelled and repoll was ordered which is subject matter of challenge in this petition. Thus, it cannot be said that any election process is under challenge before this Court and therefore the writ petition is maintainable. Further, in view of the aforesaid discussion, this Court is not called upon to adjudicate the alternative submission of Shri Ashok Khare that if at all repoll has to be it should have been ordered for both seats and not only for the second seat.
In the result, the writ petition succeeds and is allowed and the impugned order 11.9.2000 is hereby quashed. However, the parties shall bear their own costs.
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