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Judgment
Coutts Trotter, J.—This was a rule granted by my brother Bakewell calling upon the Syndicate of the University of Madras to show cause
why it should not be required to deal with the protest of Mr. G.A. Natesan, a Fellow of the University, against certain resolutions of the Senate of
the University passed at its meeting of the 3rd March 1916 and to submit the protest in question to the Governor-in-council. The proceedings are
taken u/s 45 of the Specific Relief Act and are obviously analogous to proceedings for the obtaining of the English prerogative writ of mandamus.
The writ of mandamus has been abolished in this country and care must be taken to see that the analogy of the English cases does not lead one
outside the words of the Indian statute. Section 45 of the Specific Relief Act provides that the High Court may make an order requiring any
specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any Corporation
or inferior court, provided (a) that an application be made by a person whose personal right would be injured by the forbearing or doing of the said
specific act (b) that such doing or forbearing is, under any law for the time being in force, clearly incumbent on such person on court in his or its
public character, or on such Corporation in its corporate character, (c) that, in the opinion of the High Court, such doing or forbearing is consonant
to right and justice, (d) that the applicant has no other specific and adequate legal remedy and''(e) that the remedy given by the order applied for
will be complete.
The University of Madras was incorporated by the Act of Incorporation No. XXVII of 1857 and, for the understanding of this case, it is
necessary to examine its constitution under that and the succeeding statutes and Regulations. The establishment of the University is recited to be
for the better encouragement of Her Majesty''s subjects of all classes and denominations within the Presidency of Fort St. George and other parts
of India in the pursuit of a regular and liberal course of education "". It then proceeds to establish a Chancellor, Vice-Chancellor and Fellows of the
University and constitutes them as one Body Politic and Corporate. By Section 8, the Chancellor, Vice-Chancellor and Fellows are to have the
entire management of and superintendence over the affairs, concern and property of the University.
I now pass to the Indian Universities Act VIII of 1904, which, by virtue of its second section, is to be deemed part of the Act of Incorporation.
Section 3 is as follows:--""The University shall be deemed to have been incorporated for the purpose (among others) of making provision for the
instruction of students, with power to appoint University Professors and Lecturers, to hold and manage educational endowments to make
regulations relating to the residence and conduct of students and to do all acts, consistent with the Act of Incorporation and this Act, which tend to
the promotion of study and research."" Section 4 provides that the Body Corporate shall consist of the Chancellor, Vice-Chancellor and two
classes of Fellows called ex officio and ordinary and constitutes them the Senate which thus becomes a convertible term with the Body Corporate.
Section 15 makes reference to a new body, the Syndicate, consisting of a relatively small number of Fellows under the Chairmanship of the Vice-
Chancellor and in the Syndicate is vested the executive Government of the University. By Section 25, the Senate, with the sanction of the
Government, may from time to time make "" Regulations"" consistent with the Act of Incorporation and this act to provide for all matters relating to
the University. Section 25(2) proceeds, "" In particular and without prejudice to the generality of the foregoing power, such regulations may provide
for "" a number of specified matters, but at the present moment I need only mention (c) the procedure at meetings of the Senate, Syndicate and
Faculties and (e) the appointment and duties of the Registrar and of officers and servants of the University and of Professors and lecturers
appointed by the University. It is thus seen that the power to make regulations is expressed to be permissive ; but Section 26 provides machinery
to ensure that a body of regulations shall come into existence and, in fact, a large body of regulations for the Madras University has been brought
into existence and added to and modified from time to time. To these regulations I now turn. The first group concerns the Senate and the
procedure at its meetings and for the purposes of the present case, it is only necessary to refer to two, No. 60 which makes the Chairman
(ordinarily the Vice-chancellor) the sole Judge on any point of order at meetings of the Body and No. 64 which it is necessary to set out at length :
Any member intending to protest against a resolution of the Senate shall give notice in writing of his intention to the Registrar within forty eight
hours from the date of the meeting at which the resolution was passed and within one week from such date lodge his protest with the Registrar The
Syndicate shall, thereupon, cause the protest to be printed and circulated to each member who was present at the meeting with a request that he
will record a vote for three members of the Senate to form a Committee to prepare a memorandum in support of the resolution. The three
members receiving the largest number of votes including the casting vote or votes of the Vice-Chancellor, if such be necessary and who are willing
to act shall frame the memorandum accordingly and the Syndicate shall submit the protest and memorandum, together with a copy of the
resolution, for the consideration and orders of the Governor-in-Council.
The next group of regulations refers to convocations with which we are not concerned and the third group No. 87 to 98 deal with the Syndicate.
Regulation 96 enumerates certain owers of the Syndicate of which the following are material to the present case:--(iii) to nominate University
Professors and lecturers, to define their duties and fix their remuneration and to report any such proposed arrangements to the Senate for its
sanction ; (viii) to draft such regulations as may, for time to time, be necessary and to submit them to the Senate for approval and (ix) to make its
own Standing Orders and, subject to the Regulations of the University, to regulate the disposal of its own business.
The general scheme of the Act and the regulations to be framed would appear to be this: that the Senate should be the legislative and the
Syndicate the executive Government of the University the powers of the Senate being subject, in certain matters, to the control of the Government,
that the Senate should pass general rules in the form of Regulations u/s 25 of the Act of 1904 and that the Syndicate should deal with the
administration of specific matters and the application of the Regulations to them. It is, I think, further clearly involved that the syndicate should
exercise its functions subject to and in conformity with the Regulations and from that I think too it necessarily follows that a proceeding of the
Syndicate which is contrary to the Regulations would be invalid and that the Syndicate cannot adopt measures or pass resolutions, or whatever
else they may be termed, which would be in conflict with or effect a modification of the existing Regulations or bring about a result, such as by the
Act is reserved to the Senate to effect by the passing of a regulation. This, as I say, seems to be a clear deduction from the general scheme of the
Act. As regards the limitation of the powers of the Syndicate, that can be put on an even surer, if narrower ground. The proceedings of the
Syndicate are not subject to any sanction of Government. If the Syndicate had the power, of itself, to achieve the same results as may be achieved
by Regulations u/s 25 of the Act of 1904, the effect would be to nullify the statutory mandate that such matters should be subject to the sanction of
Government.
With these preliminary observations, I pass to the actual facts of the present case, which are to be gathered from the affidavits and
correspondence. What took place is fortunately free from doubt and the facts I am about to state were admitted on both sides in the argument at
the Bar. A meeting of the Senate was convened for the 3rd March 1916 and an agenda paper was circulated outlining the nature of the business to
be transacted.
Among the agenda was the following, ""IV. The Syndicate presents to the Senate for sanction, under Regulation 96 (iii), the Standing Orders
printed as Appendix A, relating to the appointment and duties of University Professors. Mr. Hunter will move that the sanction of the Senate be
accorded to the arrangements embodied in these Standing Orders. Appendix A contains a list of provisions divided into two classes, one called
General"" and the other "" Special "". For present purposes I need only refer to No. 1 and No. 6 of the first group and No. B (1) of the second
group. These respectively run as follows:--"" General: University Professors shall be appointed by the Syndicate, subject to the confirmation of the
Senate and of His Excellency the Governor-in-Council. 6. A University Professor may be required not only to engage in the work of research, but
also to deliver courses of lectures and conduct classes as the Syndicate may direct. "" "" Special, B 1: The Professor of Comparative Philology shall
be ex officio Chairman of the Board of Studies in Sanskrit, Uriya, Marathi, Burmese and Sinhalese."" Notice had been given by Mr. K.B.
Ramanathan of certain amendments that he proposed to move and these were printed in the agenda paper. When the meeting took place Mr.
Hunter duly moved the motion standing in his name. The Vice-Chancellor, in the course of the debate, ruled that all the proposed amendments
were out of order and that it was only competent to the meeting to accept or reject the "" Standing Orders "" in toto. He further added that the
Standing Orders Special, B. I relating to the Professor of Comparative Philology appeared to be inconsistent with Regulation 140 and announced
that in consequence it was withdrawn by the Syndicate and he further ruled that, as that particular order was separable from the other orders
relating to the Professorship of Comparative Philology, it was competent to the Syndicate to withdraw it. In the course of the ensuing discussion
Mr. Justice Srinivasa Aiyangar made the suggestion that Standing Order No. 6 (General) was inconsistent with the group of Regulations regarding
the University lectureships Nos. 392 to 399. Tin Official minutes of the meeting, which by consent were placed before us, are so brief that it is not
possible to say what his exact argument was, but from certain passages in the letters it would appear to have been to this effect. By Regulations
392 and 393 the initiative of suggesting the courses of lectures to be delivered during the academic year lies with the Board of Studies: they are to
be approved by the Syndicate and laid before the Senate. The effect of General Standing Order No. 6 would appear to be to transfer the initiative
and indeed the whole control of the matter to the Syndicate. He also seems to have pointed out that the practical inconvenience resulting would be
to transfer the initiative of suggesting particular courses of lectures to be given and the subjects with which they are to deal from the Boards of
Faculties which consist of groups of experts on associated subjects to the Syndicate which, with regard to any given group of subjects, is not a
body of experts at all. The Vice-Chancellor would appear to have ruled that there was no such inconsistency with the Regulations as was
suggested. After further discussion, it was proposed by Mr. Govindaraghava Aiyar that that subjectmatter of the new proposals should be referred
for further consideration to a Committee, but this was lost by 37 votes to 36. Subsequently the original proposals, with the exception of the one
relating to the Professor of Comparative Philology which was withdrawn, were carried by a narrow majority.
On the 10th of March the applicant Mr. Natesan forwarded to the Registrar of the University a protest against the passing of the Resolution
moved by Mr. Mark Hunter at the meeting of the 3rd March. This protest was doubtless meant to be and was understood by the Syndicate to be,
put forward in accordance with Regulation 64. Among other matters, which it is unnecessary to discuss, it urged that the ruling of the Vice-
Chancellor that no amendments should be moved to the Standing Orders was wrong and was also inconsistent with his later ruling that one of the
proposals embodied in the Standing Order could be withdrawn at the meeting by the Syndicate. In answer to this communication, on the 14th of
March, the Registrar returned the protest on the ground that Regulation 64 provided only for protests against Resolutions of the Senate and not for
protests against rulings of the Vice-Chancellor. The letter (of the Registrar) continued, "" The Syndicate therefore requires that the paragraphs of
your protest calling in question the rulings of the Vice-Chancellor be deleted therefrom before action can be taken under Regulation 64 in the
direction of printing and circulating the protest to the Senate."" A further correspondence ensued, the general effect of which was that Mr. Natesan
insisted that his protest was a protest against the resolution of the Senate and against nothing else, that he was at liberty to use such arguments
against the Resolution as he thought fit, that the functions of the Syndicate in forwarding his protest were purely ministerial and that it was not
competent to that body to exercise a censorship over the contents of his protest, while the Syndicate through their Registrar adhered to their atti-
tude of refusing to forward the protest so long as it contained the matter to which they took exception. In the end Mr. Natesan applied to this
Court and we have now to determine the rights of the parties.
With some of the contentions raised there is, I think, very little difficulty in dealing and I propose to clear the ground by disposing of them at
once. In the first place, the Advocate (4eneral reiterated the point taken by the Syndicate, namely, that this was not a protest against the Resolution
of the Senate but against the ruling of the Vice-Chancellor ; and he further urged that, even if this Court should think that the Syndicate took a
wrong view of this matter, that body had a discretion which could not be overridden, povided it were exercised honestly and in good faith; I am
unable to accede to either of these propositions. To my mind, the protest is a protest against the Resolution and against nothing else; and any
criticisms of the rulings of the Vice-Chancellor are advanced as a reason for Government''s with holding its sanction; the fact that such arguments
are advanced does not seem to me to alter its character of a protest against the Resolution. So far from having a discretion vested in them, the
functions of the Syndicate under Regulation 64 appear to me to be purely ministerial. Of course that which they have to forward must be a protest
and they would doubtless be justified in refusing to forward something, that was not a protest at all; e.g., a bill of exchange, to take the illustration
given by my learned brother in the course of the argument. It may be also that if the protest contained grossly scandalous or indecent matter they
would be justified in refusing to forward it, but that is purely an academic speculation which has no bearing on the present case. In my opinion, if
the document is a protest against the resolution, the Syndicate must forward it as it stands and if the Syndicate takes upon itself to say that the given
document which purports to be such a protest, is, in fact, something else, it does so at its peril. If it is wrong in the opinion of this Court, I think this
Court must compel it to exercise the functions cast upon it by the Regulation.
It was next urged that the Syndicate or its members did not fall within Section 45 of the Specific Relief Act, in as much as they did not fulfil the
character of persons holding a public office. The AdvocateGeneral referred to the definition of a Public Officer in Section 1(17) of the CPC and
certain observations of Best, C.J. in the case of Henley v. The Mayor of Lyme (1828) 5 Bingham 91-130 E.R. 995. The Syndicate is a creature of
Statute with certain duties imposed upon it by Statute and those duties are to be carried out for the benefit of the public at large (see the very wide
words in the preamble to the Act of Incorporation) and especially for that portion of the public which desires to utilise the educational advantages
of the University. It seems to me too plain for argument that where a statute appoints a body of persons to carry out purposes of public benefit, the
persons constituting such a body ipso facto become holders of a public office within the meaning of the section. It is not disputed that to hold
otherwise would be to go contrary to a vast number of English decisions with regard to the writ of mandamus and that it would also give the gobye
to the principle which if not expressly enunciated is underlying numerous decisions of the High Courts both of Bombay and Calcutta. I am therefore
of opinion that the Syndicate is a body amenable to the jurisdiction of Section 45 of the Specific Belief Act, if the other conditions for that relief are
present.
It is next argued by the Advocate General that, even supposing that the obligation to perform this duty rested"" upon the Syndicate, there is no
specific right in the present petitioner to ask for the interference of the Court. That the existence of such a right is a necessary qualification in the
applicant is clear, (See The Queen v. The Guardians of the Lewisham Union (1897) 1 Q.B. 198. The Advocate General sought to paraphrase that
doctrine into a very different proposition, namely, that the right must reside in the individual applicant and in no one else and that, if every member
of the Senate had an equal interest with the applicant to see that the Regulations were obeyed, the requirements of the section were not fulfilled.
That argument seems to me to be wholly fallacious. A right may be enjoyed in common with every subject of the crown, but when it is infringed in
the case of an individual subject, there at once arises in that individual a further right to seek the protection of the Court to enforce such right I
entertain no doubt that Mr. Natesan, as the author of the rejected protest, had a specific right to ask that his protest should be sent to its proper
destination and not the leas so because any other member whose protest was rejected would have a similar right, or because the Senate as a
whole may be said to have an interest in the maintenance of the rights of one of its members.
I now pass to the real point of substance and difficulty in this case. Regulation 64 is the Regulation from which the applicant derives his right, if
it exists to have his protest forwarded for the consideration of Government. Regulation 64 purports to give a right of protest against any resolution
of the Senate and it could not, I think, be seriously contended that the proceedings of the 3rd of March did not at least amount to a Resolution or a
aeries of Resolutions of the Senate. Regulation 64, like other Regulations of the University, is made under Statutory authority and like Statutory
Regulations or Statutory Bye-laws will only be valid in so far as it is consistent with the provisions and within the powers of the Statute under which
it purports to be made. It is argued by the Advocate General that, in order to render the Regulation valid, it is necessary to construe the word
Resolution"" in Regulation 64 as meaning a ""Regulation"" in the sense conveyed by Section 25 of the Act of 1904. He rests his contention upon this
ground, that it is not competent for the framers of the Regulations to introduce into a Regulation a power to Government to pass orders or entertain
appeals in matters other than those in regard to which powers are given to Government by Statute. The only functions of the Senate which are
subjected to the sanction of Government by the Act are the functions exercised by them in passing Regulations u/s 25 and certain functions
regarding the affiliation and disaffiliation of Colleges. Accordingly, if Regulation 64 purports to subject other activities of the Senate to the sanction
or supervision of the Government, it is obnoxious to the Statute in two ways ; in the first place, it clothes the Government with an authority not
vested in it by the Statute; in the next, it would enable the Senate to cast upon a body other than itself functions which have been entrusted to it and
to it only by the Statute. The rule with regard to judicial bodies is clearly enunciated in the case of The Attorney General v. Sillem l and I can see
no distinction in principle between giving a right of appeal to an executive and to a judicial body. Nor can I see anything in the argument that the
provision is saved by the fact that the body to which reference is to be made is Government. If the Regulation had said that the protest was to be
laid before the Chamber of Commerce no one would contend that it was intra vires, yet, if the Senate has the power to refer matters to
Government without the specific authorisation of the Act, I do not see why it should not refer them to any other body. I have therefore come to the
conclusion that the word "" Resolution "" in Regulation 64 must be read as if '' Regulation'' was substituted for it or what comes to the same thing,
that Regulation 64 if and in so far as it purports to extend the right of protest to a resolution other than a regulation u/s 25 of the Act of 1904, or a
Resolution as any other matter requiring Government sanction is ultra vires the Senate.
The matter does not end there, for Mr. Ramaswami Aiyar for the applicants contends that, even if this view is accepted, what the Senate did
on the 3rd of March was, in fact, to pass Regulations '' within the meaning of Section 25 and it is with this contention that the main and closest part
of the argument was concerned. To test this contention, let us see first exactly what happened. There is no manner of doubt that the Syndicate did
not imagine themselves to be framing Regulations "" for the approval of the Senate "" under Regulation 96 (viii) ; when they desired to propound
Regulations for the approval of the Senate, they did so in terms. Numerous Regulations were put before this very meeting as "" Regulations"" and
were set out in the Agenda paper and described as "" Regulations."" But the Syndicate called these proposals "" Standing Orders "" of the Syndicate
i.e., Rules to govern the Syndicate in its own business. That the term "" Standing Orders "" was a complete misnomer for proposals of this nature is
obvious enough. They were concerned not with the proceedings of the Syndicate, but with the general Government and constitution of the
University. Indeed the members of the Syndicate themselves seem to have realised that the term was a misnomer, for they submitted these
proposals for the approval of the Senate; whereas the power to make their own Standing Orders (Regulation 96 (ix) is subject to no such
obligation. Moreover the proposals were expressly stated to be brought forward under the provisions of Regulation 96 (iii), whereby the Syndicate
are empowered to define the duties of the University Professors and Lecturers and to report the proposed arrangements of that nature for the
sanction of the Senate. Nevertheless, whatever confusion of nomenclature there may have been, it is, I think, incontrovertible that the Syndicate
intended these proposals when sanctioned to be something binding upon the Syndicate and not upon the Senate or the University; to be, as it were,
a byelaw or a set of byelaws of the Syndicate.
I now turn to the Vice-Chancellor, who presided at the meeting of the Senate, who, it is impossible not to remember, was an ex officio
member of the Syndicate and who, as such, could hardly have failed to be cognisant of what the Syndicate imagined to be the trend of its own
proposals. The first ruling he gave. I am not concerned now to enquire whether it was correct or the reverse was that it was incompetent to
entertain amendments to the proposals, but that they must be sanctioned or rejected in toto as they stood. No one has suggested or could suggest
that it was incompetent to members of the Senate to move amendments to regulations proposed for its approval and indeed at this very meeting
amendments to Regulations were moved and discussed and voted upon. The ruling is only intelligible if regarded as a ruling that these were not
Regulations of the Senate that were being considered, but were merely proceedings of a body other than the Senate, upon which it could set its
seal or not as it chose. The Advocate-General lays stress upon this point and it is no doubt of importance, that the Chairman of this Meeting, ruling
upon all points of order, of which by Regulation 60, he is the sole judge, must be taken to have been ruling that the Senate was not then engaged in
discussing or approving anything that was or could eventuate in a Regulation within the meaning of Section 25 of the Act. The next ruling of the
Chairman--and once more I am not concerned to inquire whether it was right or wrong--makes the matter equally clear. He announced that the
Syndicate withdrew one of the proposed Standing Orders, because it was in conflict with Regulation 140. Nobody contends that, when the Senate
is making Regulations, it has not the fullest power to modify or rescind any of its existing Regulations, though in all its other transactions it, no
doubt, would be bound by them. How the Syndicate managed the extraordinary feat of holding a meeting and coming to a determination during the
actual progress of a session of the Senate is not apparent, but the point made is that the Chairman''s ruling on this as well as on the other matter
clearly involved the assumption and the decision that the Senate was not engaged in its function of making Regulations.
I now pass to the only member of the Senate of whose attitude we have any record--Mr. Justice Srinivasa Aiyangar. His argument, whatever
else it went to, clearly went to this: that some of the Syndicate''s proposals were bad, why? Because they were in conflict with certain of the
existing Regulations. His attitude, therefore, also clearly was that the meeting was not engaged in framing regulations and consequently that its
proceedings, if in conflict with the existing Regulations, would be invalid. The Chairman''s answer to his objection is again in the same strain. He
thinks them not invalid or bad, again because in his (the Chairman''s) judgment the criticised proposals do not in fact conflict with the existing
Regulations.
Mr. Ramaswami Aiyar''s contention, as I understand it, is this:--He says that all these proposals of the Syndicate are matters which can only be
brought about by Regulations u/s 25 of the Act. They are all general measures regulating the whole course of the University business, laying down
in the widest terms what shall be done not in regard to particular persons or particular things or particular situations, but what shall be the general
studies and duties of the holders of different chairs for the future. To make general dispositions of this nature is altogether outside the scope of the
Syndicate''s power. These purposes, however, could be effected by means of Regulations approved by the Senate. What must be looked at, is the
substance of what was done and not the mere terminology used : and, in any case, that construction if possible must be put upon that which was
done which will validate it on the principle, ut res majis valeat quam pereat. What takes place when Regulations are passed? They are drafted by
the Syndicate and submitted to the Senate for approval (Regulation 96 (viii)). What else was done here and what does it matter that by purporting
to act under Regulation 96 (iii) a few words have to be changed--for ''draft'' you have ''define,'' for ''submit'' you have ''report,'' for ''Regulations''
you have ''arrangements,'' for ''approval'' you have ''sanction''? The nature and substance of what was done is identically similar and the result is
that the seal of the Senate was set upon a body of "" Rules,"" to call them by a colourless term, which are of such a nature as not only to be aptly
expressed as ''Regulations, but of such a nature that any attempt to bring them into operation otherwise than as Regulations would be invalid and of
no effect.
In much of this argument there is undoubtedly great force. There is much to be said for the view that all the socalled Standing Orders are of so
general a nature as to be outside the province of the Syndicate and only competent to the legislative powers of the Senate to bring them into effect;
but it is not necessary to decide that, for it is conceded by the Advocate-General that one at least of these proposals is undoubtedly of that
character. Still it does not follow that, because as transactions of the Syndicate they would be in whole or in part invalid, they necessarily are to be
regarded as invalid transactions of some other body. On the other hand there are cases in which a transaction which though invalid as the
proceedings of one body, may on adoption by another body become valid proceedings of that latter body. See the observations of James, L.J. in
In re Dronfield Silkstone Coal Co. 1. "" If the transaction was ultra vires the directors, it was not ultra, vires the Company and having been
confirmed by the Company and the Company having acquiesced in it and taken the benefit of it, it could not now be questioned by the Company.
We were referred to a number of cases in which questions of the validity of proceedings at meetings, of English Limited Companies arose. In my
opinion arguments and analogies derived from these cases have to be applied to a different subjectmatter with very great caution, for two main
reasons ; the first the general one, that when learned Judges are construing the words of a statute, any principles they may enunciate, must be
regarded with reference to the words of the Statute : the second that an English company has a highly specialised and differentiated machinery for
exercising its various functions, its ordinary, special and extraordinary meetings and resolutions, a machinery which is quite peculiar to itself and
does not correspond at all to the machinery of the Madras University and its Senate. Nevertheless, guarding myself as best I can from being misled
by false analogies, I think certain general principles can be extracted from the cases. The first is that if a particular act must by statute be done at a
particular kind of meeting, convened in a particular way, no meeting can do that act which is not a meeting of that particular kind or has not been
convened in that particular way. Another is that the members of the body must have notice of what it is proposed to do at the meeting, or its
proceedings will be invalid. Ordinarily it will be sufficient if they have notice of the substance of what is proposed (Tiessen v. Henderson (1899) 1
Ch. 861, Torbock v. Lord Westbury (1902) 2 Ch. 871 unless the statute in terms enacts that the notice must not only give the substance of what is
proposed, but must call it by its statutory name, MacDonnell v. E. Prill and Co., Ltd. (1916). 2 Ch. 57 I lay especial stress on that decision, a
decision by a learned Judge whose authority on such matters stands very high ; because I think it is clear from his judgment, that but for that
express provision of the statute, he would have held the notice good as conveying the substance of what was done. Indeed under the older act,
such notices had been held good. (See In re Bridport Old Brewery Co., 4 Stone v. City and County Bank (1877) 3 C.P.D. 282.
Applying these principles to the present case what is the result? In the first place, there is no question here of a meeting of a particular kind,
because the meetings of the Senate are all of one kind convened in the same way, whatever the nature of the proceedings. In the next place and to
mind this is the most important consideration of all, not only does the statute not say that the convening notice must describe what is to be
proposed, as a regulation, but it does not even define anywhere what a regulation is. In those circumstances I think we can only look at the
substance of what was proposed and passed ; and I think that a vote of the Senate purporting to affect the regulating of matters within the scope of
Section 25 of the Act of 1902, must be held to be a regulation within the meaning of that section and to require the sanction of Government. If the
step in the argument be sound, it follows of necessity that Regulation 64 applies and that the applicant is entitled to have his protest submitted to
Government.
The Advocate-General advanced one other argument, which has given me a good deal of trouble both at the hearing and since; it is based on
the ruling of the Vice-Chancellor. His argument is to this effect: A ruling that you must accept or reject a number of proposals en bloc is in effect a
ruling that you cannot discuss or vote upon any one of them on its merits. A fellow cannot reject what he may regard as an undesirable proposal
regarding the Professor of Comparative Philology, without also rejecting what he may consider a statutory one regarding the Professor of Indian
Economics. So that if it is held that what the Senate passed were regulations, it passed them after discussion so crippled by the ruling as to be in
reality no discussion at all, debarred from its right, or rather obstructed from its duty of scrutinising each separate proposal on its merits.
That the result is startling no one can deny but I do not think the contention can be put higher than an argumentum abinconvenienti. And, after
all, the '' inconvenience '' remains in any case ; if the Advocate-General is right in saying that the Senate enacted matters which it never had the
opportunity of debating properly, that is equally true whether you call that which it enacted '' regulations '' or anything else. But it is not necessary to
have regard to such considerations; the answer to the difficulty was provided by the Advocate-General himself in another portion of his argument,
in which he emphasised the finality of the Chairman''s rulings at all meetings of the Senate. It follows inevitably that no erroneous ruling of the
Chairman can vitiate the proceedings of any meeting. I have had yet no answer which satisfies my mind, to the question which I put to the learned
Advocate-General during the argument, supposing these had been called "" regulations,"" eo nomine and had been put to the vote as such, could it
be said that the ruling of the Chairman vitiated them? When the proceedings of the Senate come up for confirmation by Government, the matter is
altogether on a different footing; and it may be that if in any instance Government thought that a ruling of the Chairman had prevented any topic
from being adequately discussed, that would be a reason for withholding confirmation. But with that I have no concern, except for this one purpose
; I think it adds force to the applicant''s contention that a discussion of the natures and effect of the Chairman''s ruling was a permissible and
relevant matter of argument in his protest.
I am therefore of opinion that all the requirements exist enabling the applicant to call upon the Syndicate to carry out the provisions of Rule 64.
But the Advocate-General points out that our powers under the act are discretionary, as they indubitably are and asks us not to exercise them in
favour of the present applicant, apparently on two grounds. The first is that this is not a matter of any public importance; the second is that to grant
this rule would be to encourage innumerable frivolous applications of a similar nature in future. I know of no standard or criterion whereby to
measure what is or is not of public importance ; it is a question which every one must decide for himself in each particular case and I can only say
that this appears to me to be a matter of very considerable public importance. The topics dealt with by the resolutions were of vital educational
interest and the right of protest vested in the applicant was a right valuable to himself and to the University. As to the other argument, I must
confess myself utterly unable to follow the reasoning which seeks to say that you must not give effect to a just claim because you will encourage
others to make unjust ones. The rule must be made absolute and the order decreed as prayed.
Re : Mr. K.B. Ramanathan.
This application stands on exactly the same footing as the one with which we have already dealt and it is not suggested that there is any point of
differentiation. The rule in this also must be made absolute.
Kumaraswami Sastri, J.
This application arises out of the refusal by the Syndicate of the Madras University to forward to Government the protest of Mr. G.A. Natesan
against a resolution of the Senate passed at a meeting held on the 3rd March 1916 concerning the appointment and duties of University Professors.
It appears from the Agenda that one of the items of business was the presentation by the Syndicate to the Senate for sanction under Regulation 96
(iii) the Standing Orders printed as Appendix A to the Agenda Paper relating to the appointment and duties of University Professors. Mr. Mark
Hunter was to move that the sanction of the Senate be accorded to the arrangements embodied in those Standing Orders. Notice of amendment
was given by Mr. K.B. Ramanathan and some other Fellows of the University. Appendix A is divided into two parts, General and Special, the
latter relating to (A) Professor of Indian Economics, (B) Professor of Comparative Philology and (C) Professor of Indian History and
Archaeology. It appears from the Minutes of the Proceedings that Mr. Mark Hunter proposed and Mr. Prendargast seconded that the sanction of
the Senate be accorded to the arrangements embodied in the Standing Orders which were presented by the Syndicate to the Senate. After some
discussion the Vice-Chancellor ruled that the amendments proposed by Mr. Ramanathan and others were out of order but added that the Standing
Order relating to the Professor of Comparative Philology being the ex officio Chairman of the Board of Studies was withdrawn by the Syndicate as
inconsistent with the provisions of Regulation 140. It does not appear nor is it alleged before us that there was any meeting of the Syndicate which
authorised the withdrawal of any of the propositions which they submitted for approval. On a question being raised by one of the Fellows as to the
power of the syndicate to withdraw any proposal at that stage the Vice-Chancellor was of opinion that it was open to the Syndicate to withdraw
the proposals as to the Chairmanship, as it was separate from the other proposals relating to the Professorship of Comparative Philology. These
rulings were binding on the meeting and the effect of it was that they had either to accept or reject the suggestions of the Syndicate en bloc. After
further discussion the proposition was put to the meeting and carried. Mr. Natesan gave notice the next day of his intention to avail himself of the
provisions of Regulation 64 and to protest against the resolution of the Senate. He subsequently and within the time limited by Regulation 64 sent in
his protest. As it is contended that the protest is not really a protest but is merely an objection to the ruling of the Vice-Chancellor, it is necessary
to set it out in detail.
It runs as follows:
10th March 1916.
To
The Registrar,
University of Madras.
Sir,
I send herewith my protest against the passing of the Fourth Resolution in the Agenda of the last Senate Meeting. I submit: (1) that the Honourable
the Vice-Chancellor was wrong in his ruling that no amendments could be moved to the Standing Orders referred to and that the only alternative
left to the Senate was to approve or reject them in toto.
That the Vice-Chancellor was further wrong in allowing a part of the Standing Orders relating to the ex officio Chairmanship of the Board of
Studies in Sanskrit to be withdrawn and the remaining clauses to be retained. The ruling of the Vice-Chancel lor in this respect is inconsistent with
the ruling given with regard to Mr. K.B. Ramanathan''s amendment as out of order.
That as pointed out by the Hon''ble Mr. Justice Srinivasa Aiyangar Avergal the very Regulation 96 (iii) under which the Resolution relating to the
Standing Orders was moved, is contravened by the provisions contained in the clauses requiring the University Professors to lecture on class-
subjects. That 96 (iii) should be construed in the light of Regulations 391, 392, 393 and 398 and that the Syndicate did not obtain the
recommendations of the Boards of Studies concerned in respect of the lectures on Honours subjects.''
That the Standing Orders if approved of by the Government will lead to the absurd result of placing the Dravidian readers under the control of
the University Professor of Comparative Philology who cannot lay claim to an adequate knowledge of any of the Dravidian languages ; that Mr.
Mark Hunter said at the meeting that the University Professor of Comparative Philology had undertaken the work '' under great difficulties '' and
that the Honourable Mr. Stone said in the course of the discussion on one of the amendments that if a period of two years more were to elapse,
the said University Professor of Comparative Philology '' might make improvements in the study of the Dravidian languages.
That the Indian Professor of Sanskrit and Comparative Philology at the Presidency College who could reasonably be expected to be thoroughly
conversant with the Sanskrit language and literature in their various stages and aspects of development and conversant to the required extent with
the principles of Linguistic Science is obviously competent to do the teaching work relative to Sanskrit and Sanskritic Philology.
That under the arrangements made students in the Colleges in the city of Madras will get an undue advantage and the interests of students in the
Mofussil Colleges will be prejudicially affected. This aspect of the case was also pressed on the attention of the Senate by the Rev. Father Bertram
of the St. Joseph''s College, Trichinopoly and by others representing the mofussil colleges.
That there is a great deal of unnecessary, uncalled for and unjustifiable variation in language in the clauses 4, 5 and 2
under A, B and C respectively. That several members of the Senate protested against making invidious distinctions between University Professors
in describing their functions and duties.
That it is understood (the statement is made subject to correction) that the Standing Orders in question were discussed at a meeting of the
Syndicate at which the Vice-Chancellor and the Hon. the Director were absent and that the Standing Orders were approved by a very narrow
majority two Indian Members of the Syndicate voting against the same.
That in the Senate itself the proposals were approved by only 37 to 35 : and that there was considerable feeling over the result that a further
motion to refer the matter back to the Syndicate was immediately moved but with the same result.
(Sd.) G.A. Natesan.
This protest was returned by the Registrar on the 14th March 1916 on the ground that Regulation 54 provides only for protests against
resolutions of the Senate and not for protests against rulings of the Vice-Chancellor, that on points of order the Vice-Chancel lor was the sole
Judge under Regulation 50 and that his rulings were not to be questioned. The Registrar also informed Mr. Natesan that the Syndicate required
that the paragraphs of his protest calling in question the rulings of the Vice-Chancellor should be deleted before action could be taken under
Regulation 64. Objection was also taken to the statement in paragraph 8 of the protest as to what took place in the Syndicate and Mr. Natesan
was asked to delete this paragraph also from his protest. On the 17th March 1916 Mr. Natesan wrote back saying that he was unable to find any
provision either in the Act or in the Regulations which empowered the Syndicate to call on him to make alterations but that he was prepared to
correct any misstatements of facts to which his attention might be drawn by the Syndicate. He resubmitted the protest and requested that further
action might be taken under Regulation 64. On the 22nd March the Registrar of the University wrote to Mr. Natesan informing him that he was
directed to state that the Syndicate was not required or authorised to circulate protests against rulings of the Vice-Chancellor and was not
prepared to do so. Mr. Natesan wrote back on the 26th March pointing out that he was not objecting to the ruling of the Vice-Chancellor but to
the resolution of the Senate, that the Syndicate had no power under Regulation 64 to withhold the protest and that if the Syndicate persisted in the
action he would be compelled to take steps to vindicate his own rights and those of the Senate. To this letter a reply was sent by Mr. Dewsbury on
the 29th March stating that his letter of the 26th March has been considered by the Syndicate and recorded. Mr. Natesan on the 4th April again
wrote to the Registrar stating that the action of the Syndicate was (to use his words) "" illegal, highhanded and a gross encroachment on the rights of
Fellows,"" that he was not prepared to let the matter rest there and that he would take all steps ""to make the Syndicate realise that they cannot trifle
with the rights of the Senate in any manner."" The Registrar on the 6th April sent a reply to Mr. Natesan stating that his letter had been considered
and recorded. Thereupon Mr. Natesan presented the present application and obtained a rule u/s 45 of the Specific Relief Act.
The facts set out by Mr. Natesan in his affidavit have not been controverted but various legal objections have been taken in the affidavit of the
Registrar of the University as to the maintainability of the application. The grounds taken are:
that the Syndicate is not a Corporation and that the application u/s 45 of the Specific Relief Act is not competent:
that Regulation 64 of the University Regulations affords no absolute legal right as it only applies to the internal management of the affairs of the
University and that the applicant has no personal right which has been injured:
that the application being to compel the Syndicate to circulate the protest to the members of the Senate who were present at the meeting and
several of whom were resident in the moffusil and outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, it was a matter
where the act would not be done or forborne within the local limits:
that the applicant has other specific and adequate legal remedies in that he can present a petition to the Government direct or move the Senate
to annul the decision of the Syndicate complained of, or move the Senate to rescind or modify the original resolution or bring an action to set aside
the resolution if it were ultra vires:
that the relief sought is not complete as the Senate has power to overrule or modify Regulation 64 or to confirm the decision of the Syndicate
which is under the control of the Senate:
that the Syndicate had the right to decide and decided that the protest was not a protest against the resolution of the Senate but was a protest
against the ruling of the Vice-Chancellor:
that as the ruling of the Chairman on points of order was conclusive neither the Government nor this Court could entertain any appeal against the
ruling:
that the Syndicate was not bound to circulate any protest irrespective of its form and contents and that having a discretion and having exercised
it, it could not be questioned by any Courts:
that Regulation 64 applies only to any resolution of the Senate which requires the sanction of the Government to become a regulation; and
that the resolution in question in substance merely recorded the sanction accorded by the Senate under Regulation 96 (iii) and that it does not
require any sanction of the Government but was within the competence of the Senate under the old and new Universities Acts.
Before dealing with these objections it is necessary to conaider the provisions of the Universities Acts of 1857 and 1904 in so far as they relate to
the matters in controversy. The Universities
Act of 1857 constituted the Chancellor, Vice-Chancellor and the Fellows of the University a Body Corporate "" for the better encouragement
of Her Majesty''s subjects of all classes and denominations within the Presidency of Port St. George and other parts of India in the pursuit of a
regular and liberal course of education and the University was established for the purpose of ascertaining by means of examinations, the persons
who have acquired proficiency in different branches of Literature, Science and Art and rewarding them by academical degrees as evidence of their
respective attainments and marks of honour proportioned thereto."" Section 8 of the Act vested in the Chancellor, Vice-Chancel lor and Fellows
the entire management of and superintendence over, the affairs, concerns and property of the University and authorised them to act in such manner
as appeared to them best calculated to promote the purposes intended by the University. The Universities Act of 1904 increased the scope and
functions of the old University but restricted its freedom of action by bringing it under the control of the Government in respect of the several
important matters. u/s 3 of the Act of 1904 the University was deemed to have been incorporated for the purpose inter alia of making provision for
the instruction of students with power to appoint University Professors and Lecturers. Section 15 of the Act vests the executive Government of the
University in the Vice-Chancellor, the Director of Public Instruction and not less than seven or more than fifteen Fellows elected in a manner
provided by the Regulations. Section 25 of the Act enables the Senate with the sanction of the Government to make regulations consistent with the
present Act and the Act of Incorporation (as amended by the present Act) to provide for all matters'' relating to the University. The section goes
on to state a number of matters as to which Regulations could be made but this is without prejudice to the generality of the powers given by
Section 25. in pursuance of Section 25 Regulations were made and sanctioned which deal with various matters concerning the internal management
of the University. Regulation 64 provides that any member intending to protest against a resolution of the Senate should give notice in writing of his
intention to the Registrar within fortyeight hours from the date of the meeting at Which the resolution was passed and within one week from such
date lodge his protest with the Registrar.
The Syndicate is thereupon directed to cause the protest to be printed and circulated to each member who was present at the meeting with a
request that he will record a vote for three members of the Senate to form a Committee to prepare a memo randum in support of the resolution
and the Syndicate has to submit the protest and memorandum together with a copy of the resolution for a consideration and orders of the
Governor-in-Council. Regulations 87 to 98 relate to the powers and duties of the Syndicate. It is only necessary for the purpose of this application
to refer to Regulation 96, clauses (iii), (viii) and (ix). Clause (iii) gives the Syndicate power to nominate University Professors and Lecturers, to
define their duties and fix their remuneration and to report any such proposed arrangements to the Senate for its sanction. Clause (viii) empowers
the Syndicate to draft such regulations as may from time to time be necessary and to submit them to the Senate for approval and Clause (ix)
empowers it to make its own Standing Orders and, subject to the regulations of the University, to regulate the disposal of its own business.
It will thus be seen that the scheme of the Act is to vest in the Senate power to make rules dealing with general matters and to leave it to the
Syndicate to apply the general rules framed by the Senate to the facts and exigencies of each particular case. In some matters, however,
Regulations 95 and 96 give the Syndicate exclusive powers uncontrolled by the Fellows.
The first objection taken by the Advocate-General relates to the form of the application. It is contended that the Syndicate is not a Body
Corporate although the Senate is one and that the petitioner should have proceeded if at all against the Senate. It is also contended that if he has
any remedy against the Syndicate he must proceed against each of the members composing, the Syndicate individually and serve them individually
and not through the Registrar of the University. As I have already pointed out, Section 15 of the Universities Act vests the executive Government in
a body of persons called the Syndicate. The whole body is to act under Regulation 64. Though in respect of a great many matters the Syndicate
can only act under the orders or with the sanction of the Senate there are other matters in which they have independent powers or the sole right of
initiative. Regulation 64 directs the duties to be done by the Syndicate and gives the Senate no powers. It cannot be said that as regards the latter
class of cases the Syndicate is the agent of the Senate nor is there any cause of action against the Senate as a body for the simple reason that it has
no duty to perform under Regulation 64. There is so far as I can see, nothing to prevent a mandamus being directed to the Syndicate as the
executive body constituted by the Act. The practice in English Courts seems to be that where the application is to compel some public officer or
body to perform a public duty the persons are not named but are proceeded against under their official title. For example, writs of mandamus have
been issued to Justices of a County, inhabitants of a Parish, Churchwardens, Overseers, inhabitants and bailiffs of a town, the Keepers of the
Common Seal of a University, the Assessment Committee of a borough, the Registrar of the British Pharmaceutical Society etc. There has been,
so far as I can see, no objection taken in any of the reported cases on the ground that except in the case of Corporations all other public bodies
should be proceeded against in the individual names of the members composing them.
In the case of public duties to be performed by persons holding public offices it is clear that the mandamus will bind and can be served on the
successor in office of the person who refused to perform his duties and I am of opinion that where persons holding the office are a statutory body
fluctuating from time to time and who bear an official designation given to them by statute the proper course is for the proceedings to be instituted
against the body in its official designation and not against each of such persons individually. So far as the authorities in India go, there are a number
of cases where proceedings have been taken against a statutory body in its official name when the body was proceeded against by way of
mandamus. (See In the matter of Rudra Narain Roy, 1 ln the matter of Purno Chundra Dutt 2 and Provas Chandra Boy, in re). 3 The rule in the
above cases was obtained against the members of the Board of Examiners of the Pleadership and Muktyarship and Attorneys Examinations. In the
present case appearance has been entered by the members of the Syndicate and it is not suggested that there has been any hardship or preiudice.
The objection is purely technical and can, if necessary be easily cured by a formal amendment. I do not think that the objection is fatal to the
application.
It is next contended that the members of the Syndicate of the Madras University are not "" persons holding a public office "" within the meaning
of Section 47 of the Specific Relief Act and that the remedy, if any, is against the Senate. Although the word ''public servant'' had been defined in
some Acts (for example the CPC and the Indian Penal Code) there is no definition of the word in the General Clauses Act. ""Public office"", I take
it, means any office created by the legislative or other lawful authority for the purpose of discharging functions which affect the public generally or
any particular section thereof. The Universities Act created a public body to carry out certain defined public objects. It created a corporation
vested with powers to carry out various objects for which the University was created. As part of the machinery and for the better carrying Out of
the public objects contemplated by the Statute it has by Section 15 constituted a body of persons called the Syndicate in whom is vested the
executive Government of the University. I find it difficult to see why the members of a statutory body so constituted are not persons holding a
public office. The word ""person"" in the General Clauses Act of 1868 which was in force at the date of the passing of the Specific Relief Act is
defined as "" including any company or association or body of individuals whether incorporated or not:"" so that the words ""person holding a public
office"" in Section 45 would also include a body of persons holding that office even though that body has not been incorporated or constituted a
Body Corporate.
It is argued by the Advocate-General that the definition in the CPC affords a valuable guide in construing Section 45 of the Specific Relief Act
and that one important test would be whether the person holding a public office receives any emoluments. Reference was also made to 5 Bingham
91 where Best, C.J. was of opinion that everyone who was appointed to discharge a public duty and received compensation in whatever shape
whether from the Crown or otherwise was a public officer. This definition is not exhaustive. Courts in England have issued: a mandamus against
Poor Law. Guardians, Town Councillors, Churchrwardens and other purely honorary public officers. There is, so far as I can see, nothing to
prevent a person from under3 taking public duties without receipt of emoluments. The test is not whether a man receives any emoluments but the
nature of the acts to perform which he is appointed or which he is legally liable to perform. Neither the CPC nor the Penal Code are in pari materia
with the Specific Relief Act and I do not think the definition there given for certain specific purposes in connection with the provisions of those
Codes can be taken as a general and authoritative definition of the term '' public servant.''
As regards the argument that the Senate should be proceeded against and not the Syndicate, it is clear from Regulation 64 that it is the
Syndicate and not the Senate which is to perform the functions specified in the Regulation. When a smaller body is constituted from out of the
members of a larger body and certain specific functions are allotted to it either by Statute or by Regulations having the force of law a party
aggrieved by any act of the smaller body which act is within its special competence cannot proceed against the larger body (Bholaram Choudhry v.
The Corporation of Calcutta) (1899) 1 Ch. 861.
The next contention is that the present application is only to enforce a duty imposed by Regulation 64 and that the duty is not one under "" any
law for the time being in force,"" as required by Section 45 of the Specific Relief Act. The question is whether the Regulations framed under the
Universities Act can be said to be ""laws for the time being in force"" within the meaning of Section 45 of the Specific Relief Act, The Universities
Act provides for regulations being made as to matters not specifically dealt with by the Act. It sets out the objects for which the Body Corporate
has been established by the legislature and Section 25 empowers the Senate with the sanction of the Government to make regulations consistent
with the Acts of 1857 and 1904 to provide for all matters relating to the University. It is not disputed that regulations were duly made and
sanctioned by the Governor-in-Council as required by the Universities Act of 1904. I am of opinion that the regulations must be read as
supplementing the Act, being of the nature of what has been called subordinate or delegated legislation. The effect of the regulations made in
pursuance of the powers conferred by the Acts of legislature has been considered in numerous cases and the result of the authorities is, in my
opinion, to give the rules or regulations made under Statutory power the same validity and binding force as the sections of the principal enactment.
In Hopkins v. The Mayor etc. of Swansea (1899) 1 Ch. 861 the question arose as to the validity of certain byelaws made by the Corporation.
Lord Abinger, C.B. was of opinion that the byelaws had the same effect within its limits and with respect to the persons upon whom it lawfully
operates as an act of Parliament has upon the subjects at large. In Willingale v. Norris (1902) 2 Ch. 871, the binding force of regulations made
under a Statute was considered and discussed and it was held that where a Statute enables an authority to make regulations a breach of the
regulations so made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. Lord Alverstone, C.J. observed
If it be said that a regulation is not a provision of an act, I am of opinion that Bex v. Walker (1916). 2 Ch. 57 is an authority against the
proposition. I should certainly have been prepared to hold apart from authority that where a Statute enables an authority to make regulations, a
regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act."" Mr. Justice Bingham and Mr.
Justice Walton were of opinion that to break a regulation made under the authority of a Statute is to break the Statute itself. In In re Langlois v.
Biden (1867) L.R. 2 Ch. App. 191 Lord Esher considered that the rules made as to costs in County Courts under the provisions of the County
Courts'' Act, 51 and 52 Vic. Ch. 43, had statutory force and that the Act and the rules should be considered as one enactment.