Rule. Learned counsel Ms. VJ Bhatt, Mr. Amit Panchal, Mr. SH Dave and learned AGP Mr. JK Shah waive service on behalf of the respective parties. With the consent of both the sides, the matter is heard finally today. 1. By way of this petition, the petitioner has prayed for the following reliefs;
“(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside order dated 26.06.2012 (at Annexure-L hereto) and further be pleased to cancel the appointment of present respondent no.1, i.e. Shailesh Mohanbhai Patel, as nominated Member of Shri Hemchandracharya North Gujarat University and further be pleased to quash and set aside the order dated 21.01.2012 passed by Vice- Chancellor of University being No. AK/S.MAM/119/RUBARU/2012 in the interest of justice.
(AA) Your Lordships may be pleased to issue a writ of Quo Warranto quashing and setting aside the appointment of respondent no.1.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside Resolution dated 19.01.2012 passed by the Patan Nagarpalika of accepting the resignation of Patel Mukeshkumar Jethalal and nominating Shailesh Mohanlal Patel as Member in the University being Resolution No. 333/11-12 in the interest of justice.
(C) & (D) ....
2. Under the provisions of Section 16 of the Hemchandracharya North Gujarat University Act (hereinafter referred to as the “University Act” for short), the name of one “Mukeshbhai Jethabhai Patel” was forwarded by respondent-Nagarpalika for being nominated as Member from amongst the Councillors, in pursuance of the selection of said person by the respondent-Nagarpalika by Resolution dated 16.12.2010.
3. It appears that said “Mukeshbhai Jethabhai Patel” had tendered his resignation by way of application dated 18.01.2012, which was addressed to the President / Chief Officer of respondent-Nagarpalika. The respondent-Nagarpalika accepted the resignation and accordingly, passed a Resolution to that effect.
4. Subsequently, the respondent-Nagarpalika elected respondent no.1 herein as the nominated Member and an intimation in that regard was forwarded to respondent no.2. In pursuance thereof, respondent no.2 appointed respondent no.1 u/s.16 of the University Act by order dated 21.01.2012.
5. The petitioner challenged the above action before the State authority but, the same was rejected. Being aggrieved by the above action of the respondents, the petitioner has preferred the present petition.
6. Mr. SI Nanavati learned senior counsel appearing with Mr. PP Majmudar for the petitioner submitted that under the provisions of Section 74(2) of the University Act, the application for resignation of “Mukeshbhai Jethabhai Patel” had to be made to the Vice-Chancellor and forwarded through the Registrar of the respondent- University since the Vice-Chancellor was the competent authority. In this case, the application was presented to the President / Chief Officer of the respondent- Nagarpalika, who is not the competent authority under the University Act. Therefore, the entire action of sanction of resignation is bad in law and therefore, no “resignation” could be said to have taken place.
7. Mr. Shalin Mehta learned senior counsel appearing for respondent no.1 submitted that the brother of the petitioner had earlier preferred S.C.A. No.1939/2012 before this Court regarding the same subject matter, which was withdrawn. He submitted that the present petition has been filed since the petitioner had to face defeat in the elections of the Executive Committee of the respondent-University. Therefore, having faced defeat, it is an after-thought by the petitioner to challenge the nomination of respondent no.1.
7.1 Mr. Mehta further submitted that resignation submitted by said “Mukeshkumar Jethabhai Patel” is deemed to have been accepted in view of the order dated 21.01.2012 passed by respondent no.2-Vice Chancellor. Therefore, respondent no.1 has rightly been nominated by the respondent-University. He, therefore, submitted that the present petition deserves to be dismissed.
8. Mr. Amit M. Panchal learned counsel appearing for respondents no.2 & 3 submitted that said “Mukeshkumar Jethabhai Patel” had submitted his resignation to the President / Chief Officer of the respondent-Nagarpalika and not to the respondent-Vice Chancellor. Therefore, under the provisions of the University Act, the resignation tenderend by “Mukeshkumar Jethabhai Patel” cannot be deemed to have been “granted”.
9. Mr. SH Dave learned counsel appearing on behalf of respondent no.4-Nagarpalika submitted that after the resignation tendered by “Mukeshkumar Jethabhai Patel” was duly granted by the respondent-Nagarpalika, a Resolution was passed in that regard by the Nagarpalika, during which time, the petitioner was present. However, at that time, he had not raised any objection. Therefore, it is now not open to the petitioner to raise objection against the grant of resignation.
10. Heard learned counsel for the respective parties. It is an undisputed fact that “Mukeshkumar Jethabhai Patel”had tendered his letter of resignation to the President / Chief Officer of the respondent-Nagarpalika. Under the provisions of Section 74(2) of the University Act, the letter of resignation has to be addressed to the Vice-Chancellor of the respondent-University and submitted through the Registrar.
11. The Vice-Chancellor, being the competent authority, is empowered to approve “resignation” under the provisions of University Act. In the present case, resignation has been “approved” by the authority concerned in the respondent-Nagarpalika, who is not the competent authority under the University Act. Therefore, the resignation tendered by “Mukeshkumar Jethabhai Patel” cannot be said to have been “approved” under the provisions of the University Act since it has not been granted by competent authority.
Consequently, the Resolution dated 19.01.2012 passed by the respondent-Nagarpalika approving the resignation of said “Mukeshkumar Jethabhai Patel” is contrary to the provisions of the University Act.
12. The interpretation of the provision as made out by learned senior counsel Mr. Mehta could not be accepted since the provision specifically provides that the letter of resignation has to be addressed to the Vice- Chancellor and submitted through the Registrar. Thus, the provision mandates that the competent authority to grant resignation is the Vice-Chancellor of the respondent-University and that such letter of resignation has to be submitted through the Registrar. In the present case, the entire procedure of submitting the letter of resignation to the President / Chief Officer of the respondent-Nagarpalika, the subsequent “approval” of the same and the passing of the Resolution thereof, is bad in law as the same is contrary to the provisions of the University Act. Thus, the nomination of respondent no.1 as Member is illegal and deserves to be quashed and set aside.
13. An attempt was made by learned senior counsel appearing on behalf of respondent no.1 that the Resolution passed by the respondent-Nagarpalika ought to have been challenged by the petitioner u/s.258 of the Gujarat Municipalities Act since the petitioner was present at the time when the Resolution was passed. However, I do not find merit in the submission raised by Mr. Mehta since the pertinent question is whether the resignation tendered by said “Mukeshkumar Jethabhai Patel” has been duly “granted” or not. When this Court has come to the conclusion that the resignation tendered by “Mukeshkumar Jethabhai Patel” cannot be deemed to have been “granted” under the provisions of the University Act, the factum of presence or absence of the petitioner at the time of passing of the impugned Resolution would not make any difference. The impugned action was taken under the provisions of the University Act and not the Gujarat Municipalities Act and therefore, the said action or Resolution dated 19.01.2012 passed by the respondent-Nagarpalika has no bearing with the administration of the respondent- Nagarpalika under the provisions of the Gujarat Municipalities Act.
14. In view of the above discussion, this petition is allowed. The impugned orders dated 21.01.2012 and 26.06.2012 as also the Resolution dated 19.01.2012 are quashed and set aside. The appointment of respondent no.1 herein as nominated Member of the Senate of respondent-University is also quashed and set aside. Rule is made absolute with no order as to costs.
15. At this stage, Mr. Shalin Mehta requested to stay the operation of this order for a period of four weeks. For the reasons recorded herein above, this Court is of the considered opinion that the appointment of respondent no.1 as nominated Member is bad in law and contrary to the provisions of the said Act.
Under such circumstances, respondent no.1 could not be allowed to continue as the nominated Member otherwise, it would amount to duplicating two Members of the Nagarpalika to the Senate. Hence, the request is declined.
[K. S. JHAVERI, J.] Pravin/*