JUDGMENT D.K. Seth, J.
1. An advertisement was issued on 13th October, 1995 by Banaras Hindu University for filling up of vacancies in different Posts in the Central Hindu Girls School including the post of Assistant Lecturer in English. Many others as well as the petitioner and respondent No. 5 had applied for the post pursuant to the said advertisement. At the material point of time, in the absence of the principal, the respondent No. 4 was acting as principal of the Central Hindu Girls school as officiating principal. She was inducted in the Selection committee as one of the members in place of the principal. The selection committee had recommended the name of the respondent No. 5 for appointment in the post for which the petitioner had contested. By a resolution dated 20/21st July 1996, the Executive council had appointed the respondent No. 5 in the said post. This appointment has since been challenged by the petitioner in this writ petition.
2. Mr. K. M. L. Hajela, learned counsel for the petitioner contends that the constitution of the Selection Committee was invalid in view of Ordinance 5 Clause-(VI)(C) Chapter-VI of the Banaras Hindu University Calendar providing for the Ordinance governing the Management of Institution under the School Board earned under Statute 41(2) of the Banaras Hindu University Statute. In as the said clause provides for constitution of the Selection Committee for selection of principal and teachers. The Selection Committee for teachers consists of (1) Vice-Chairman, (2) Dean, Faculty of education, (3) Two members nominated by the chairman of the School Board, (4) Registrar, B.H.U. (5) Principal, Kendriya Vidyalaya, B.H.U. Campus and (6) principal of the concerned Institution. According to him, the word 'Principal' does not include officiating principal. The expression 'Principal' is meant for a principal who has been appointed substantively. Thus, according to him the inclusion of the officiating principal has vitiated the constitution of the selection committee. The officiating principal is incompetent on account of her not being appointed in substantive capacity, constitution of the Selection committee itself was vitiated and therefore, the Selection Committee could not have recommended the name of the respondent No. 5 such recommendation was, therefore, without jurisdiction. Thus, the selection was void and without authority. In support of his contention, he relies upon the decision in the case of S. K. Lamba v. State of U.P., (1993) 3 UPLBEC 1624), by a Division Bench. He then contends that in view of Sub-section 6 of Section 18 of the Banaras Hindu University Act, 1915 every Ordinance is to be placed before the Visitor who may disallow of remit the same to the Executive council. According to him, in the present case, there was nothing to show that the Ordinance by which the Executive Council had appointed the respondent No. 5 purported to have been amended by a resolution dated 20/21st July, 1996 had ever been placed before the visitor. Therefore, according to him, the reliance placed by Mr. V. K. Upadhyay on the said ordinance, to defend the claim of the petitioner, is wholly misplaced, since in the absence of placement of the ordinance before the visitor, the same had never come into existence and could not have been enforceable. He contends that the purported amendment of the Clause (VI)(c) of Ordinance 5 on the basis whereof the appointment of the respondent No. 5 was issued, had never come into life and as such the Executive Council could not assume jurisdiction to appoint respondent No. 5 is wholly without jurisdiction and void. According to him, unless there is an approval by the visitor which is implied in Sub-section (6) of Section 18, an Ordinance does not become effective and enforceable. In support of his contention, he had relied upon the decision in the case of Inamdars of Sulhnagar Colony and Ors. v. Government of Andhra Pradesh and Anr., AIR 1961 Andhra Pradesh 523, (V. 48 C 150). He also contends that the power conferred by the statute upon one authority cannot be exercised by another authority. In such cases, such exercise would be void-ab-initio. In support of the above contention, he relied on the decision in the case of Anirudhsinhji Karansinhji Jadeja and Anr. v. The State of Gujarat, JT 1995 (6) SC 146. According to him, it was the Board which was competent to appoint a teacher in the Central School. The Executive Council could not have assumed jurisdiction on the basis of the Resolution dated 20/21st July 1996. on the very date on which the appointment was also made. According to him, the amendment if had been resolved on 20/21st July, 1996 even if, assuming for argument's sake that it had come into force then no resolution to appoint could have been passed on the same date until the amendment has been enforced formally. Therefore, on 20/21st July, 1996 on which the amendment was resolved, the Executive council did not have nor could have acquired into itself the right to appoint which is otherwise vested in the Board. On these grounds, he prays that the writ petition be allowed.
3. Mr. V. K. Upadhyay assisted by Mr. Pankaj Naqvi, leaarned Counsel for the respondents on the other hand took a preliminary objection to the extent that under Sub-section-(7) of Section 5 of the Act. there is adequate alternative remedy available to the petitioner by means where of a reference to the visitor is imperative. According to him, the appointment was made in a proceeding of the University Undertaken by the Executive council. From various provisions of the Act and the ordinances and Statutes, he points out that it is the Executive council which is in-charge of the management of the University itself and a proceeding undertaken by the Executive council is a proceeding of the University and as such is amenable to Sub-section (7) of Section 5. Therefore, the petitioner could not have maintained this writ petition before this court. On this ground, according to him, the writ petition cannot be entertained by this Court and should be dismissed as not maintainable.
4. Apart from the preliminary objection, he has also addressed the court on merits of the case and sougth to defend the action of the University. According to him, Mr. Hajela has not questioned the power to resolve by the Executive council and the power to frame ordinance or to amend the ordinance Admittedly, the Executive council is empowered to frame an ordinance or amend the. same. Relying on Sub-section (6) of Section 18 which provides that an ordinance framed by the Executive council is to be placed before the visitor, he support his contention that the ordinance could very well be framed by the Executive Council. He contends further that since the Executives council has framed the ordinance within its competence, the same is valid and would be effective as soon it is resolved. Now here in the Act, It is provided that the ordinance should be effective only on receipt of assent, consent or approval of anyone besides the resolution of the Executive council. The provision contained in Sub-section (6) of Section 18 is a provision by which the ordinance is to be placed before visitor who may disallow or remit the same to the Executive council with the added power that he may suspend the operation of such resolution until he has an opportunity to exercise the power to disallow but the extent of suspension is limited to one month only, a combined reading of the said two provisions, according to him, presupposes that an ordinance is not dependent on the assent, consent or approval of the visitor. Sub-section-(6) docs not provide that unless the power to disallow or remit or suspend on ordinance is exercised or an -opportunity is availed of or offered to the visitor, the ordinance cannot be said to be ineffective on the other hand, there is no scope of implied approval by reason of Sub-sections (6) & (7) of Section 18. There cannot be any question of assuming a provision which is not specified in the act itself. In case, such interpretation is given to Sub-section (6) & (7) of Section 18 in that event, it would be reading something which the legislature deliberately omitted. If the court interprets accepting the contention of Mr. Hajela, in that event, it would be an enactment or legislation which is wholly outside the scope and domain of the jurisdiction exercised by the High court. It cannot encroach the domain of the legislature. The validity or effectiveness or operation of the resolution is not dependent on the question of approval of the visitor. Though has contended that the ordinance must have been placed before the visitor in ordinary course of official business but he has not produced-any record that it was so done nor it has been so mentioned in any affidavit placed before this Court. However, Mr. Upadhyay contends that notices have not been issued to the University though he had appeared to oppose the case, and therefore, he did not have any opportunity to put those things on record. He further contends that there was no attempt on the part of the petitioner to call for those materials or records in order to give notice to the respondents for production of such records. Therefore, no capital could be made out of such contention raised b\ Mr. Hajela. He contends that by reason of the resolution No. 25 dated 20/21st July. 1996 Ordinance No. 5 (VI)(C) Chapter-VI has since been amended and the power to appoint a teacher has been vested on the Executive council instead of the Board. Mr. Updhyay had produced the said resolution where from it appears that the Selection Committee would make recommendation to the Executive council for appointment to the post of principal as well as P.G. Teacher, T.G. Teachers, and Nursery Teachers/primary Teacher of the Schools/Vidhyalaya under the School Board, replacing the erstwhile provision which empowered the Selection Committee to recommend to the Board for appointment of P.G. Teachers, T.G. Teachers. Nursery/Primary Teachers. He then contends that the resolution to appoint was taken after the resolution to amend. The ordinance became effective as, soon us it was resolved by the Executive council and as such the Executive Council was competent to resolve the appointment of the respondent No. 5 immediately thereafter even in the same proceeding. He points out that the proceeding had started on 20th July and continued till 21st July, 1996 and being one proceeding two dates have been mentioned to identify the proceeding which pre supposes a long deliberations and therefore, it cannot be said that the resolution to appoint would be incompetent and was taken before the resolution to amend had become effective. He had also relied on a decision in the case of Dr. Nand Kumar Singh v. Banaras Hindu University, varanasi and Ors., (1990) 1 UPBLEC 215, in order to support his contention that in view of Sub-section-(7) of Section 5. the matter has to be referred to the visitor. He had also relied upon a decision in the case of Teaching and Administrative Staff Association, Moti Lal Nehru Regional Engineering College, Allahabad v. Convenor, Steering Committee and Ors., 1994 (2) ESC 147 (All), in support of his contention that if there is an irregularity or illegality in the formation of the Selection Committee in that event that is referable under Section 68 of the U.P. State Universities Act. He than contended that even if there is an irregularity in the constitution of the Selection committee such irregularity does not affect the merit of the selection. Unless the irregularity in the constitution affects merit of the selection, the same cannot vitiate the constitution of the Selection Committee and the selection process. He next contends that once candidate participates in the selection process, he cannot turnaround and challenge the legality of the constitution of the Selection Committee after he is unsuccessful. On these grounds, he contends that the writ petition should be dismissed as also on merits.
5. Mr. Hajela on the other hand contends that since the matter was moved in 1996 and in the meantime, a long time has passed, the alternative remedy should not pursue the court to non-suit the petitioner. He then contends that existence of alternative remedy is not an absolute bar. It depends on the fact and circumstances of each individual case where the court should decline from exercising its jurisdiction on the ground of alternative remedy or not. According to him, in the present case, the question involved requires determination of niceties of law. Therefore, it should not be left at the hands of the Executive. According to him, in the present case the decision is dependent on the interpretation of question of law raised by him which can decided by the Court and not by the Executives. As such the Court should not close its eyes and refuse to exercise the jurisdiction only on the ground of the existence of alternative remedy. That apart, he had also tried to contend that Sub-section-(7) of Section 18 deals with the action of the University whereas the present case relates to that of school and not of the University and as such the present case does not come within the scope and ambit of Sub-section-(7) of Section 18. Therefore, he prays that this matter may be decided on merit.
6. Both the learned counsel of the parties had addressed the court on the question of preliminary objection as well as merits. I have heard both the counsel at length.
7. So for as the question of preliminary objection is concerned, it appears that Sub-section (7) of Section 5 provides for a reference to the visitor in the following manner.-
Sub-section (7) of Section 5:
Without prejudice to the foregoing provisions of this Section the Visitor may, by order in writing annul any proceeding of the University which is not in conformity with this act, the statutes or the ordinances.
8. By reason of the said provision, the visitor has been empowered to annul any proceeding of the University by an order in writing if such proceeding is not in conformity with the Act or statute or the ordinance. The expression 'University' used in Sub-section-(7) of Section 5 includes the management of the School which are am and maintained by the University itself as is apparent from Section 15 of the Banaras Hindu University Act 1915. admittedly, the Central Hindu Girls school is a school maintained by the University. For the purpose of maintenance of the said school Chapter VI provides for the ordinance governing the management of the institution under the School board framed under statute 41(2). It appears that the School Board is to consist of five officials namely, (a) vice chancellor/rector who shall be the chairman of the Central Hindu school Board; (b) Vice-chairman; (c) Registrar; (d) Finance Officer (e) Dean of Faculty of Education other than four members nominated by Executive council. Thus it shows that the University has at least nine menders in the Board consisting of twelve members altogether. Ordinance 5 (vi) (a) provides that the Selection committee shall recommend to the Executive council for appointment of the principal. Thus the appointment of the principal of the School is also controlled by the Executive council which is the principal body managing the affairs of the University. It is rightly pointed out by Mr. Upadhyay from Section 10 Sub-section (1) that the Executive council shall be the Executive Body of the university and shall have charge of the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University and shall also perform all the duties as may be conferred or impose by statute or ordinances. Thus, it appears that the expression 'University' used in subsection-^) of Section 5 would include the procedure of the Executive Council even in relation to the appointment or a teacher in a school maintained by it.
9. In the present case, the challenge has been thrown not only to the appointment of the teacher by the Executive Council but as well as to the amendment made by the Executive Council as has been noted in the submission made by Mr. Hajela. Therefore, It is an action of the Executive council that has been under challenge, from Annexure-SA-I Annexed to the supplementary affidavit filed by the petitioner, it appears that the appointment of the respondent No. 5 was issued by the Executive council pursuant to its resolution dated 20/21st July, 1995. Thus, it is an action or proceeding of the Executive council which has been challenged. The expression 'University' is an abstract idea. It is the Executive council which is the Executive Body of the University. As such the preceding of the University comes within the meaning of Sub-section (6) of Section 5. As such the present dispute falls within the scope and ambit of Sub-section (7) of Section 5 of the said Act. Thus, the dispute is amenable to reference to the visitor as has been contended by Mr. Upadhyay.
10. Mr. Upadhyay has sought to draw an analogy on the basis of the decision in the case of Teaching and Administrative Staff Association, Moti Lal Nehru Regional Engineering College (supra) and Dr. Mohd. Suhail v. Chancelor, University of Allahabad and Ors., (1994) (2) ESC 82 (All)), only to support his contention that irregularities in the constitution of the Selection Committee should be referred to an authority instead of deciding the same by the Court. Since according to him, the State University Act does not apply to Banaras Hindu University and Section 68 students paramateric same as Sub-section (7) of Section 5. Thus, those decisions also help Mr. Upadhyay in his connection that this matter should be adjudicated under Section (7) of Section 5 by the visitor on account of existence of alternative remedy.
11. There is no doubt that in case of existence of alternative remedy, the Court is slo to exercise its jurisdiction. Admittedly, the existence of alternative remedy does not create an absolute bar. But still then it such alternative remedy adequate and efficacious in that event, the Court may decline to interfere. The full Bench of this Court, in Candrama Singh (supra) case, 'has held that unless it is specifically pleaded that the alternative remedy is inadequate and inefficacious and it is so demonstrated in the pleadings, mere statement that there is no adequate remedy would not enable the court to exercise its jurisdiction. In the present case, however, no such statement has been made in the pleadings.
12. But I do not propose to throw out the writ petition on the ground of alternative remedy in view of the peculiar facts and circumstances of the case. In as much as in the present case, the question that requires determination is a pure question of -law requiring in-depth study in niceties of the legal proposition, such matter is not desirable to be left to the Executive Authorities. But when it requires determination of an interpretation of law having regard to the various provisions or law in that the event the Court should not close its eyes and withdraw it self from deciding the same on the ground of existence of alternative remedy. Admittedly, Executive Authority is not expected to deal with the depth of legal proposition. Since in the present case, a very interesting point has been raised by Mr. Hajela, therefore, it would be desirable that this Court would interfere in the present case despite the existence of alternative remedy, particularly in view of the fact that the matter has been kept pending for long three years.
13. So far as the illegality in the constitution of Selection Committee is concerned, it appears that all the grounds from (a) to (f) are based on the irregularity or illegality in the constitution of the Selection Committee. The only reason that has been pointed out be Mr. Hajele with regard thereto, is that the officiating principal has been included in place of the Principal of the concerned Institution. Admittedly, in Clause-(VI) (C) of Ordinance 5 of Chapter-VI constitution of Selection Committee is provided for. There are six members in the Selection Committee of teachers. The sixth member of the Committee is the Principal of the concerned Institution. This expression in 'Principal' has been argued by Mr. Hajela to exclude officiating Principal.
14. The word 'Principal' has not been defined in Chapter-VI. The officiating Principal performs the duties of the Principal in her absence. She discharges all the function of the principal so long, she officiates as Principal. For the purpose of constitution of Selection Committee in the absence of expression 'Principal' and provision excluding officiating Principal for being included in the Selection Committee, the inclusion of officiating Principal cannot be said to vitiate the constitution of the Selection Committee. Officiating Principal is as much a Principal for the purpose of running and managing the affairs of the school. If the officiating Principal can run the management and affairs of the Institution in the absence of the Principal with the same power, authority of the Principal in that event, there cannot be any ground to exclude her from the Selection Committee simply because she was officiating. The expression 'Principal' used in the constitution of Selection Committee under Clause (VI) (C) does not exclude Officiating Principal.
15. Section 19 of the General Clauses Act, 1897 provides that law relative to the Chief or Superior of an office, in any Central Act or Regulation, shall apply to the deputies or Sub-ordinates lawfully performing the duties of that office in the place of their superior. The Banaras Hindu University Act is a Central Act which is not in dispute. There is no dispute that the Officiating Principal was lawfully performing the duty of the Principal. For the time being, she was authorised to officiate as Principal. As such by reason of Section 19 of General Clauses Act law applicable to the Principal is very much applicable to her i.e., she can be included in the Selection Committee as Principal.
16. Therefore, it cannot be said that there was any irregularity or infirmity in the constitution of the Selection Committee.
17. Mr. Hajela has relied on the decision in the case of S. K. Lamba (supra) in order to contend that if one of the members is incompetent then the whole constitution of the Committee would be vitiated. In the present case, officiating Principal having not been disqualified or incompetent to be included in the Selection Committee, the ratio decided in the case of S. K. Lamba (supra) cited by Mr. Hajela cannot be attracted. Then again the said decision one of the members namely, the Chairman, Board of Revenue was absent in the meeting of the Selection Committee and due to such reason, it was held that the constitution of the Selection Committee was illegal. Since according to the Rule 18 of the Civil Services (Executive Branch), Rules, 1982, the Selection Committee was to be constituted with the Chairman of the Board of Revenue. In the absence of the Chairman it was held that such Selection Committee was incompetent to carry on the selection. In the present case, on the other hand it is not alleged that any of the Selection Committee was absent. The only ground that has been taken is that the officiating Principal cannot substitute the Principal. Therefore, even on fact, the ratio decided in the case of S. K. Lamba (supra) cannot be attracted.
18. The reliance placed on Anirudhsinhji Karonsinhji Jadeja (supra) by Mr. Hajela does not help him in the fact and circumstances of the case. In the said case, it was held that if power is conferred upon one authority, the same cannot be really exercised by other authority in violation of the statutory provision. The discharge of the function of Principal by officiating Principal is not the discharge of function of one authority by another authority. The officiating Principal is very much Principal officiating. In fact officiating Principal substitutes Principal in her absence. She is endowed with the same authority that is conferred on the Principal. Therefore, the said decision cannot be attracted in the present case.
19. On the other hand the petitioner has challenged the selection of respondent No. 5 and non-selection of the petitioner on the ground of irregularity or illegality in the constitution and incompetence of the Selection Committee. Admittedly, the petitioner had appeared in the selection before the selection committee and was unsuccessful. It is not open to a candidate after having been unsuccessful to challenge the validity of the constitution of the Selection Committee. In the case of Arun Kumar Shukla and Ors. v. The Chancellor of Allahabad University, Lucknow and Ors., (1984) 1 UPLBEC 477, and in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., 1986 Lab IC 796 : 1986 All LJ 662. it was held that after having been unsuccessful a candidate cannot turn round and challenge the validity or illegality in the constitution of the Selection Committee of the selection process.
20. In view of the ratio laid down in the said two decisions, it is not open to the petitioner to challenge the validity of the selection process or the constitution of the Selection Committee or the irregularity in it.
21. Mr. Hajela had also contended that it was the Board which should have exercised the power of appointment. Instead the power of appointment has been exercised by the Executive Council. He again relies on the same principle laid down in the case of Anirudhsinhji Karansinhji Jadeja (supra). The proposition appears to be a sound proposition of law. Admittedly the authority conferred by the statute on a particular body cannot be exercised by another body. In the present case, it is now to be examined as to whether the authority exercised by the Executive Council is devoid of the authority to appoint and had in fact usurped the authority of the Board or in other words, the Board was the authority to appoint and that instead of the Board such power has been exercised by the Executive Council. In order to determine the said question it would be necessary to refer to the other points raised by Mr. Hajela. I propose to deal with the same in the manner hereinafter.
22. Before embarking on the question raised by Mr. Hajela it may be noted that originally Ordinance 5 Chapter-VI provided for the powers of the Central Hindu Girls School Board constituted under Statute 41(2). The Chapter-V prescribes for ordinance for management of the Institutions maintained by the University. The Management of the Schools were entrusted to a particular body under Ordinance 1 of Chapter-VI. We have already observed that the Board consists of five members of the University and four members to be nominated by the Executive Council out of twelve members of the Board.
23. Ordinance 5 in Clause-(VI) provides for manner of appointment of Principal and Teacher in the following manner :
Ordinance 5 - Clause (VI) :
(a) There shall be Selection Committee for making recommendations to the Executive Council for appointment to the post of Principal of Schools and Vidyalaya;
(b) There shall also be Selection committees for making recommendations to the appointment of teachers (permanently or temporarily) in the schools and Vidyalaya;
(c) Every Selection Committee shall consist of the vice-chancellor who shall be the chairman thereof and a person nominated by the School Board and in addition, the selection committee for making recommendations for appointment as specified below.
For Principal:
(1) Vice-Chairman, school Board (2) Dean, Faculty of Education (3) Two members nominated by the Chairman, School Board.
(4) Registrar, B.H.U.
For Teachers :
(1) Vice-chairman, School Board.
(2) Dean, faculty of Education (3) Two members nominated by the Chairman of the School Board.
(4) Registrar, B.H.U.
(5) Principal, Kendriya Vidyalaya, B.H.U. Campus.
(6) Principal of the concerning Institution.
24. It appears that the Selection committee shall make recommendation to the Executive Council in respect of appointment of principals of the Schools. Whereas the selection Committee shall make recommendation to the Board for appointment of teachers in the schools. This provision as undergone change from time to time. In July, 1996 the amend provision with regard to appointment of principal and teachers in the schools had stood as follows :
"There shall be Selection committee for making recommendation the Executive council for appointment to the post of principal/Adhyaksh and the Selection Committee for making recommendations to the School Board in respect of PG Teachers/TG Teachers and Nursery/Primary Teachers."
25. This provision had since been amended by the resolution No. 266 dated 20/21st July, 1996 adopted by the Executive Council pursuant to item No. 25 of the said meeting. The amended provision reads as follows :
"There shall be Selection Committee for making recommendations to the Executive Council for appointment to the post of principal of Schools and Adhyaksh of Ranvir Sanskrit Vidyalaya also in respect of PG Teachers/TG Teachers and Nursery/Primary Teachers of the Schools/Vidyalaya under the School Board."
26. Thus, the provision for appointment of principal and Teacher had undergone radical change. While the principal used to be appointed by the Executive council, the teacher used to be appointed by the board. Whereas by virtue of the amendment the principals as well as the teachers are to be appointed by the Executive council. In the said resolution the reasons for amendment have also been given. A Plain reading of the said provision for the purpose and object of supporting the amendment shows that there were sufficient ground for amendment of the Ordinance. However, the purpose and object has not been asserted. Admittedly, the Executive Council is the Executive Body which is empowered to frame ordinance. Power to frame or legislate includes the power to defame or delegislate and to amend. However, Mr. Hajela has not raised his submission to that extent. The amendment therefore, cannot be questioned.
27. Now the question that has been raised by Mr. Hajela is as to the effectiveness of the said amendment on the ground of non-compliance of Sub-section (6) of Section 18. Section 18 Sub-section (6) and (7) are as follows:
Section 18 Sub-section (6) & (7) All ordinance made by the Executive Council shall be submitted, as soon as may be, to the visitor who may disallow any such Ordinance or remit to the Executive council for further consideration.
The visitor may, by order, direct that the operation of any ordinance shall be suspended until he has had an opportunity of exercising his power of disallowance, and any order of suspension under this Sub-section shall cease to have effect on the expiration of one month from the date of such order.
28. Sub-section (6) provides that all ordinance made by the Executive council is to be submitted as early as possible before the visitor. The visitor may disallow such ordinance or remit to the Executive Council for further consideration, subsection (7) provides that in order to have an opportunity of exercising the power to disallow an ordinance, the visitor is empowered to suspend the operation of the ordinance by an order until such opportunity is exercised by him. But such suspension shall be of limited duration of one month. It will cease to have effect on the expiry of one month from the date of order of suspension.
29. A combined reading of Sub-section (6) and (7) implies that the ordinance is to be placed before the visitor who has a right to disallow or remit with the further right to suspend for a period of one month. But the said provision does not prescribe that if the ordinance is not placed before the visitor the same would become invalid. There is nothing in the scheme of the Act that an ordinance made by the Executive council would become operative only after the same is approved by the visitor. The contention is That by reason of Sub-section (6) of Section 18, the Act provides for an implied approval. The scheme of the provision contains in Sub-section (6) and (7) dies not postulate any such interpretation. It does not appear that non-placement of the ordinance before the visitor would vitiate the effectiveness thereof. The cessation of the suspension after one month is indicative of the fact that the legislature has never intended that the ordinance should be effective subject to the assent of the visitor. It was only the power given to disallow or to remit. But it has not spoken of any approval. It was only a right reserved to the visitor to disallow or to remit. No power has been conferred on the visitor by virtus of Sub-section (7) of Section 18 to grant approval of ordinance. Ordinance made by the Executive Council is not dependent either on the consent or approval of the visitor. The very text of the said two provisions indicated that it become effective as soon it is made. That is the reason why Sub-section (7) has been included by empowering visitor to suspend the operation of the ordinance only for a period of one month after which the suspension would cease. Thus the ordinance remains effective, unless suspended and that too for a period limited by one month. In order to read in Sub-section (6), an existence of implied approval would be reading something which the legislature deliberately omitted to incorporate. If the legislature could incorporate the power to disallow or to remit, it could have also included the power of approval and it should have provided that an ordinance should become effective only after the approval or content of the visitor. In the absence of any such specific provision, the court cannot read something which otherwise is absents.
30. In case such an interpretation is accepted in that event, it would be adding words to the legislation and thereby it would be venturing to the domain of legislature. The court can interpret but it cannot legislate. An interpretation which amounts to legislation is to be avoided.
31. Despite all arguments made by Mr. Hajela, I am unable to accede to his contention that Sub-section (6) provides for implied assent in order to render an ordinance effective. There being no provision that in the absence of implied approval, the ordinance would become inefective, it is not possible to hold the contention in favour of Mr. Hajela. Even in Sub-section (7) it is not provided that even if the power of disallowance or remittance is not exercised then the ordinance would become ineffective. On the other hand, it would become operative as soon one month after suspension expires, even though, the power to disallow or remit is not exercised despite the passing of order of suspension. Thus a combined reading of Sub-section (6) and (7) clearly indicates that legislature have never thought of any approval or consent to an ordinance in order to make it effective even by implication.
32. Thus the decision in the case of Inamdars of Sulhnagar (supra) cited by Mr. Hajela does not help us. In as much as in the said case, the language of Article 13 of Clause (iii) which was under consideration had made abundantly clear that a bill is required to be reserved for consideration of the president. The bill will not become an Act unless the president declares his assent to it. On the analogy of the principal clause, it was held in the said decision that bill becomes an Act, if it is reserved for consent of the president and it received the consent. It does not become an Act if these formalities are not complied with. In other words bill does not acquire the sanctity of an Act as if there is no enactment at all. This provision is completely different from the provision with which we are now concerned. In the present case, an ordinance is not dependent on the basis of any consent or assent of the visitor.
33. Such Ordinance made by the Executive council becomes operative at once. It does not require any other agency to make it effective or valid. There is nothing to indicate in the Act that there is any restriction on the Executive council to restrict the effectiveness of on odinance made by it. As soon the ordinance being made, the same becomes effective as has been found in view of Sub-section (6) & (7) of Section 18.
34. Thus, the ordinance having been effective as soon it was resolved, the power to appoint vested in the executive council. Therefore, immediately after the making of the ordinance it was competent for the Executive Council to make the appointment which it had made by resolving the appointment of the Respondent No 5. Therefore, in this case the authority to appoint having been vested in the Executive Council by reason of the amendment, it was discharging the authority vested in it. It had never usurped the authority of the Board. After the amendment came into effect, the board was no more empowered or competent to make the appointment. Therefore, the decision in the case of Anirudhsinhji Karansinhji Jadeja (supra) cannot be attracted in the present case since the power is being exercised by the authority on whom the statute conferred by means of the amendment.
35. Then again, it is contended by Mr. Upadhyay that the ordinance was placed before the visitor in usual and ordinary course of business of the University and it has not been disallowed or remitted by the visitor. Animatedly, the respondent had no opportunity to file any counter affidavit. At the same time, no specific case has been made out in the pleadings that the matter was never placed before the visitor. Therefore, it was not necessary for Mr. Upadhyay to annex the same. This question has been raised in course of argument. But the petitioner had never prayed for production of materials to show as to whether the ordinance was placed before the visitor or not. Neither the petitioner has served any notice on Upadhyay requiring him to produce those materials. In such circumstances, the non production of the documents in support of Mr. Upadhyay's contention cannot be taken to be a material on which adverse presumption could be drawn, since there was no material disclosed in the pleadings to the effect and the respondent having not called upon to produce those naturals either by the court or by virtue of a notice served on it by the petitioner. It was not incumbent on the part of the respondents to produce the same. Therefore, no presumption could be drawn in such circumstances. On the other hand, since the sending of the ordinance to the visitor was an official action which is ordinarily done in usual course of business, therefore, unless anything is shown to the contrary, all such official action should be deemed to have been regularly performed by the authority concerned. Therefore, on this ground, it cannot be said that even if there was any scope to hold that Sub-section (6) of Section 18 conceives of implied approval that there was no approval, on the other hand, unless it is proved to the contrary, all official action shall be deemed to have been taken and the Court will draw a presumption to that effect. In the present facts and circumstances of the case, there is nothing to show that the official procedure was not followed.
36. Section 114 of the Evidence Act provides that the court may presume the existence of facts which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to facts of particular case, In illustration (e) and (f) under the said Section the Court may presume that official acts have been regularly performed and that the common course of business has been followed in particular cases. Where any official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity are complied with. The ordinary rule is 'Omnia Praesumuntur Rite at Solenniter case acta donce probetur in contrarium', everything is presumed to be rightly and duly performed until the contrary is shown (Broom-Legdl maxim 1939 Ed P 642 quoted in Harpal v. Union Territory, AIR 1978 P and H 68(FB). There is presumption that ordinary business acts are normally carried out (P) & S Bank v. Gian Chand, AIR 1941 Lahore 345.
37. Section 57(1) of the Evidence Act empowers the Court to take judicial notice of all laws in force in the territory of India. All laws includes rules having the force of law. Law in Article 13(3)(a) of the constitution of India "includes any ordinance, order. Bye-law, Rule, Regulation, Notification, Custom, Usage having in the territory of India force of law". Law in force in clause (b) of Article 13(3) "includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement" of the constitution" and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas". Law in force has been explained on identical terms as above in Explanation-1 of Article 372 of the constitution. Existing law defined in article 366(10) of the constitution" means any Law, Ordinance, Order, Bye law, Rule or Regulation passed or made before the commencement" of the constitution "by any legislature, authority or person having power to make such Law, Ordinance, Order, Bye law, Rule or Regulation." General clauses Act, 1897 in Section 3(29) while defining Indian law has used identical with reference to law in force in India.
38. Reference to law in the above context has been made to existing law. Banaras Hindu University Act, 1975, is an existing law within the meaning as discussed above. There cannot be a different connotation or distinction between the meaning of law as defined in respect of law existing at or those made after the commencement of the constitution. The same principle as are applicable to define law existing at the commencement of the constitution is applicable to recognise law made thereafter. Thus law made by any authority or person having power to make such law, Bye law, Rule or Regulation is very much a law.
39. In the present case the Executive Council is empowered to make law under the Banaras Hindu University Act, 1915. Section 18(3) empowers the Executive council to amend repeal or add to the Ordinance. Executive council is in charge of the management and administration of the University. Under Section 8A, The Executive Council is one of the authorities of university. Section 19 Provides that the authority of the university may make regulation. Now therefore, there is no doubt that the Executive Council is an authority empowered to make law. Therefore, under Section 57(1) of the evidence Act law made by the Executive council can be taken judicial notice of as law in force in particular are i.e. Banaras Hindu University. Ordinance made by the Executive Council satisfies the test of law as defined in Article 13(3) read with Article 372 Explanation-1, Article 366(10) of the constitution and Section 3(29) of the General Clause Act.
40. Then again Section 16C of the Banaras Hindu University Act provides that "no act or proceeding of any authority.....shall be invalid......by reason of.........any irregularity in its procedure not affecting the merits of the case." "In the present case the selection has not been challenged on merits. Mr. Hajela had challenged the same on the ground of irregularities in the procedure. Thus assuming but not asmitting that there were irregularities, in the absence of anything to show that it had affected the merit, even then the act or the proceeding challenged shall not be invalid by reason of Section 16c of the Banaras Hindu University Act.
41. However, it is also not shown that there were any irregularities except that in the same proceedings the ordinance was amended and the selection was made and the alleged non-compliance of Section 18(6) of the Banaras Hindu University Act, In view of Section 114 of the Evidence Act, the court cannot presume that Section 18(6) was not complied with unless contrary is shown, whereas by reason of Section 57(1) the Court has to take judicial notice of the law made by the Executive Council. There is nothing shown to the contrary that the official procedure of Section 18(6) was complied with. Thus it is very difficult to presume irregularity.
42. Thus, as discussed above, in the facts and circumstances of the case, I am unable to persuade myself to agree with the contention of Mr. Hajela.
43. Thus, for all there reasons, the writ petition fails and is accordingly, dismissed. However, There will be no order as to costs. Petition dismissed.