Patna High Court
Smt. Saraswati Mishra vs The Chancellor, Universities Of Bihar ... on 2 February, 1981
Equivalent citations: 1982(30)BLJR185
JUDGMENT M.P. Verma, J.
1. In this application under Articles 226 and 227 of the Constitution, the writ petitioner Suit. Saraswati Mishra obtained Rule nisi seeking the respondents to show cause why the directions, as contained in annexure '15' be not quashed. This annexure purports to be an order passed by the Chancellor of the Ranchi University, This has been communicated by the Joint Secretary to the Governor of Bihar (Chancellor) to Dr. Kumar Suresh Singh, the then Vice Chancellor of the Ranchi University. This is dated 5th of July, 1980. This order speaks that the respondent No. 1 the Chancellor of the University has been pleased to review an earlier order dated 26-6-1970 as contained in annexure '10' to the writ petition. I will deal with Annexure '10' hereinafter.
2. Following points have been raised for consideration:
(i) Whether the Chancellor of a University can review his own quasi-judicial order, more so when there is no change either factual or otherwise in the circumstances of the case.
(ii) Whether review of an earlier order without giving the petitioner an opportunity of being heard is in violation of the principles of natural justice, so far as her case is concerned.
3. In order to appreciate the dispute involved, I may enumerate briefly the facts of the case. The petitioner Smt. Saraswati Mishra is the daughter of professor Dr. U.C. Jha. Sometimes in the year 1976, a vacancy was advertised for the post of a lecturer in the department of philosophy in Doranda College, at Ranchi. She applied for the job. She was called for an interview. She succeeded and got her appointment by the Selection Board and since 13.3.1977 she has been working as a lecturer in the said college.
It was in the year 1978 that a post of lecturer in philosophy in Ranchi University was advertised through the Bihar Public Service Commission Vide advertisement No. 62/78) for which this petitioner was also an applicant. The Secretary, Bihar Public Service Commission requested the petitioner's father who happened to be the Head of the Department of Philosophy and Reader in the University, Ranchi to assist the Commission as an internal expert at the interview (vide annexures 2 and 3). The Registrar of the Ranchi University (vide annexure 4) asked Dr. U.C. Jha whether he was an expert in selection committee of the Bihar Public Service Commission for appointment to the post of a lecturer in philosophy and also to intimate whether his daughter Smt Saraswati Jha (writ petitioner) was an applicant for the post. In response to this Dr. Jha immediately wrote to the Chairman, Bihar Public Service Commission (vide annexure '5') that his daughter was an applicant for the post and he was therefore, unable to act as an expert in the interview Board.
4. A similar request to act as an internal-expert was made by the Commission to Dr. P. B. Vidyarthi another University professor of the Ranchi University. It is relevant to indicate here that Dr. U.C. Jha, while expressing his inability to act as an expert further wrote to the Chairman of the Commission that he had filed a civil suit at Ranchi Civil Court against the appointment of Dr. P. B. Vidyarthi as the University professor and his relationship with Dr. Vidyarthi was very much strained. In his letter to the Chairman (vide annexure '5') Dr. Jha stated that he apprehended that justice would not be done to his daughter if Dr. Vidyarthi acted as an expert. Dr. Jha, therefore, requested the Chairman not to appoint Dr. P. B. Vidyarthi also as an internal expert in the circumstances of the case. A copy of the letter dated 12.7.1978 was sent to the Registrar, Ranchi University in reply to the Registrar's letter of enquiry (vide annexure '4"). It appears that Dr. UC. Jha by another letter dated 17.3.1979 (vide annexure '6M again wrote to the Chairman, Bihar Public Service Commission giving out details that even a writ petition against the appointment of Dr. Vidyarthi as a University professor was pending in the High Court at Ranchi Bench : he strongly apprehended that justice would be dented to his daughter in case Dr. Vidyarthi sat as an expert and a request was made that the somebody other than Dr Vidyarthi be approached to assist the commission in selection of the candidate and copies of this letter (annexure 6) were sent to the Chancellor of the University, i.e. the Governor of Bihar, Raj Bhwan, Patna and also the Vice-Chancellor Ranchi University. The interview which, for some reason, was postponed in 1978 was finally held on 29-3-1979 and 30-3-1979 by Dr. Kumar Bimal, Chairman, Bihar Public Service Commission, Patna, who is respondent No. 4 of this writ petition. No notice of the letters, dated 12-7-1978 and 17-3-1979 (annexures 5 and 6) written by Dr. U.C. Jha was taken, and no heed was paid to his request. Respondent No. 4 Dr. P. B. Vidyarthi acted as an internal expert to assist the Commission in the interview, which was held on 29th and 30th of March, 1979.
The Commission recommended only two names, one of Mr. Prakash Kumar (respondent No. 6) and the other of Mrs. Bimla Devi (respondent No. 7) for the appointment to the post advertised. The Commission did not recommend the name of this petitioner. The petitioner says that her apprehension came true.
5. The case of the petitioner is that this recommendation is a mala fide exercise of the powers ignoring the claim of the petitioner on extraneous considerations. It has been stated that academically and also otherwise the petitioner stands superior to both the candidates whose names have been recommended by the Chairman of the Commission for appointment to the post.
6. The petitioner has been working as a lecturer in philosophy, Ranchi University Service at Doranda College, Ranchi since 3-1-1977 and has completed more than two years of service without break. The college is an affiliated unit of the University and it has been stated that under Article 211(3) of the Ranchi University Statute the petitioner should have got the benefit over other two candidates for the substantive appointment to the post of the lecturer.
The petitioner being aggrieved, submitted a representation to the then Chancellor of the Bihar University challenging the validity of the recommendation and prayed for setting aside the same. A copy of the representation has been attached with this writ petition PS annexure 7 it was stated by her in annexure 7 that her father Dr. U.C. Jha, while in all fairness, expressed his inability to act as the internal Expert, had further requested the Chairman not to appoint Dr. P. B. Vidvarthi to sit as an expert as the latter had some animus with them on account, of the litigation pending in Court and it was felt long before that justice might be denied to her by the Commission. The then Chancellor sent a copy of the representation, annexure 7 to respondent No. 3 for his comments and the Chancellor was further pleased to fix up a date for hearing of the matter and intimation regarding same was sent to the petitioner and as well as to the University to appear on 23-6-1979 at Raj Bhawan (vide annexure 8), The Registrar sent the University's comments on the petitioner's representation through his letter, dated 19-6-1979 to the Dy. Secretary. Governor of Bihar, Raj Bhawan, Patna (vide annexure 9). It was admitted therein that Dr. U.C. Jha filed a case against the appointment of Dr. Vidyarthi to the post of University professor. It was also stated that since Dr. U.C. Jha had refused to act as an expert, the next senior man in the Department, i.e. Dr. Vidyarthi was invited to act as an expert. It was also admitted (hat a temporary concurrence was accorded to the petitioner to continue on her post till regular appointment was to be made. But no appointment could be done so far though Commission's recommendation was received, on account of the fact that there was no meeting of the syndicate till then. It was also stated that according to the existing statute of (he University in relation to appointment, the post of teachers to be filled up by an open advertisement. The Statute has got the assent of the Chancellor and came in force on 1-7-1977. After hearing the parties the then Chancellor on 26-6-1979 passed an order directing the syndicate to select another expert and to request the Commission to inverview the candidates over again and submit fresh recommendation for filing up the post advertised. Annexure 10 contains the full order passed by the then Chancellor of the University. It has been stated therein that there was no doubt with respect to the fact that litigation was going on between Dr. Jha and Dr. Vidyarthi. This was a matter of record within the knowledge of the University. In this circumstances it was incumbent on the part of the University to take necessary decision in the matter before the interview was held and not to have slept over the allegations made by Dr. Jha in respect of the appointment of Dr. Vidyarthi as an Internal Expert. The Chancellor further stated that another Reader was easily available, who could have been deputed for the purpose. The University seems to have failed to discharge its duties in selecting an Internal Expert, who should have been an independent person. It was further observed by the Chancellor (hat it was a well settled principle that fairness should not only be done to all the candidates appearing at the interview, but it must appear to be reasonably so and finally the Chancellor in his order held that he felt satisfied that in the instant case, the University should have selected some other expert in place of Dr. Vidyarthi to assist the Commission in selection of a lecturer and the interest of Justice would not be safe in accepting the recommendation of the Commission. As stated above, the Chancellor therefore, directed to select another expert and requested the Commission to interview the candidate over again and submit fresh recommendation for filling of the post advertised. The Chancellor, however, did not express any opinion on the claim of the petitioner based on Article 211(3) of the Ranchi University Statute. The Chancellor was right in not expressing his opinion over the second issue with regard to the claim of the petitioner for the post as it is a matter within the domain of the Commission. The Dy. Secretary to the Governor of Bihar wrote to the Registrar, Ranchi University with respect to the order passed by the Chancellor for Information and for taking necessary action in the matter as directed and to intimate to the Governor's Secretariat for information.
7. It has been stated on behalf of the petitioner that she could learn that the Ranchi University Syndicate under the presidentship of respondent No. 2, the Vice Chancellor passed a resolution seeking fresh approval of the case by the present Chancellor by way of review of the earlier order dated 26. 6. 1979 passed by the then Chancellor, In support of this contention the petitioner has annexed the resolution No. 507 dated 18. 11. 1979 of the Syndicate, as anexure 14 of this petition. The present Chancellor, as stated above reviewed the order, dated 26. 6. 1979 (annexure-10) and gave further his seal of approval to the earlier recommendation of the Bihar Public Service Commission for appointment to the post of lecturer firm among the candidates recommended by the Commission in respect to Advertisement No. 62/78. The order of the Chancellor has been communicated to the Vice-Chancellor of the University by the joint Secretary to the Governor of Bihar under Memo No. RU/28/79/-2582-GS (1} (Vide annexure-15). The petitioner however, submitted a fresh representation on 31. 7. 1980 stating therein that the earlier recommendation of the Bihar Public Service Commission was quashed by the then Chancellor and further slated that he might be heard to explain the case, and the Ranchi University Syndicate till then be restrained to proceed with the appointment in respect of the said advertisement. The petitioner having finally learnt that the syndicate was scheduled to meet to make appointment and that the representation went unheeded, approached the writ jurisdiction of this Court for redressal of her grievance.
8. It has been submitted on her behalf by the learned Counsel T.K. Jha that in view of the dispute pending between the petitioner's father and respondent No. 5, the recommendation of the Commission cannot be said to be honest and free form malice or any bias, more so, when the fact of the dispute and litigation pending between the parties were brought to the notice of the Commission and as well as the University authorities much prior to the date of the interview. It has also been urged that any act of appointment on the recommendation of the Bihar public Service Commission after the lapse of more than one year would be arbitrary and illegal. Sri T. K. Jha has further challenged the validity of the order of the present Chancellor in reviewing the earlier order passed by his predecessor-in-office. It has been urged that this being a quasi judicial order, the Chancellor has no jurisdiction to review the same.
9. All the respondents have appeared. Show cause have been filed on behalf of respondents 2 and 3, i.e. on behalf of the Vice-Chancellor and also the Registrar of the Ranchi University and counter-affidavit have been filed on behalf of respondent No. 5. Dr. P. P. Vidyarthi. who assisted the Commission as an internal expert and also on behalf of respondent No. 6 Prakash Kumar, whose name was recommended by the Commission for appointment. It is pertinent to mention that the facts regarding the dispute between the father of this petitioner and respondent No. 5 has not been denied. In the counter affidavit Mr. Vidyarthi has only stated that he had no knowledge regarding the correspondence made by Dr. UC. Jha father of the petitioner and the petitioner's apprehension for denial of justice is baseless. It has been stated on behalf of respondent. 2 and 3 that the representation of the petitioner to the Vice Chancellor of the University was premature and misconceived. The petitioner, in case of any grievance could have challenged the recommendation of the Commission before a court of law and not by filing a representation before the Chancellor of the University.
10. Be that as it may, the moot question, as contended on behalf of the petitioner is whether the Chancellor can review his own order. The learned Advocate General has submitted that review was done in an administrative capacity. It has been most haltingly argued that the earlier order, dated 26.6.1979 contained in annexure 10 cannot be deemed to be a quasi-judicial order and as such, the Chancellor was within his competence to review the same. It has been urged that an administrative order can very well be reviewed or recalled or rescinded in accordance with Section 24 of the Bihar and Orissa General Clauses Act. I have no hesitation in rejecting the argument of the Advocate General outright as in my opinion Section 24 of the Bihar and Orissa General Clauses Act 1917 has no application. It is not a question of a power vested or conferred on a Chancellor to make or issue notification or any order, which may include the power 1o add, amend or vary the same such notification or order under Section 24 of the Bihar and Orissa General Clauses Act, 1917. The contention is therefore, ruled out.
11. Learned Advocate General with all his ingenuity has not contended that the Governor of Bihar, by virtue of his offce, is the head of the University and under Sub-section (4) of Section 9 of the Bihar University Act 1976 the Chancellor may, by order in writing annul any proceeding of the University, which is not in conformity with the Act, the Statutes, the Ordinances and Regulations. In the present case, it was on 18. 11. 1979 when the Syndicate requested the Chancellor to review the earlier order contained in annexure-10 and the present Chancellor annulled the order and directed to accept the recommendations of the Commission as per annexure-15. Question arises whether the subsequent request made by Syndicate for acceptance of the recommendation was a proceeding of the University and also whether the same was in conformity with the Act or the Statute. The Bihar University Act does not define 'proceeding.' The word 'proceeding' has to be understood in relation to an enactment, in which it has been used. The recommendation for appointment is made by the Bihar Public Service Commission on the basis of which the syndicate makes the appointment. In the present case the petitioner challenged the validity of the recommendation and filed representation to the Chancellor of the University, who, on consideration of the material facts, parsed an order directing the Syndicate to select another expert and to request the Commission to interview the candidates over again and thereafter to submit fresh recommendations for filling up the post. The Syndicate in its resolution on 13.11. 1979 resolved to approach the Chancellor again for reconsideration of the earlier recommendation submitted by the Commission for the appointment of the candidate. Admittedly the earlier recommendation was annulled by the Chancellor, which was again put up before the Chancellor for re-consideration and placement or putting up the same recommendation of the Commission before the Chancellor cannot be deemed to be a proceeding of the Syndicate. The Chancellor, in absence of any power, has therefore no jurisdiction under Sub-clauses (4) of Section 9 of the Bihar University Act to review the same and to direct the Syndicate to accept the recommendation. Even assuming for a moment, as contended by learned Advocate General, that it was an administrative order there being no factual change in the circumstances of the case, the review of the order, exhibits arbitrariness and lacks judicial application of mind.
Nonetheless, this is an order affecting rights of the parties and decidedly, as held by several Courts this is a quasi-judicial order and the justice requires that the petitioner should have been heard.
12. Under Clause (3) of Section 58 of the University Act such recommendations are valid only for a period of one year and not beyond that. In such a situation, it does not appear desirable to ask the syndicate to make appointments on such recommendation, which has lapsed due to efflux of the time.
13. Thus, to conclude, I am of the view and I hold that the Chancellor has no inherent jurisdiction under the University Act to review his own order, muchless in the present case. This writ application therefore, succeeds and the orders contained in annexure 15 is hereby quashed. Incidentally, it may be mentioned here that that the University at no stage, in the course of argument, challenged the validity of the order contained in Annexure 10. The Syndicate and respondent Nos. 2 and 3 are accordingly directed to take action and to proceed in accordance with law. There shall be, however, no order as to costs.
Birendra Prasad Sinha, J.
1. The power of the Chancellor to act is given under Section 9(4) of the Bihar Scats Universities Act, 1976, which reads as under:
(4) The Chancellor may, by order in writing annul any proceeding of the University which is not in conformity with the Act, the statutes, the Ordinance or the Regulation;
Provided that before making any such order he shall call upon the University to show cause within the time specified why such order should not be made, and if any cause is shown within the said time limit, he shall consider the same.
There is no other provision in the Act under which the Chancellor can take any decision, it was argued that the Resolution of the Syndicate dated 18-11-1979 (Annexure 14) requesting the Chancellor to reconsider the recommendation of Bihar Public Service Commission was not a proceeding. It was this Resolution which provided opportunity to the Chancellor to act and pass the order contained in Annexure 15. My learned Brother, M.P. Verma, J. has held that the Resolution contained in Annexure 14 was not a proceeding of the Syndicate. Learned Advocate general submitted, although half-heartedly, that the order passed by the Chancellor is administrative order and, therefore, cannot be interfered with by this Court in us writ jurisdiction. He did not dispute the fact that the order contained in Annexure 15 was passed under Section 9(4) of the Act. The question as to whether a power is an administrative power or a quasi-judicial power depends upon the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under Section 9(4) of the Act, the Chancellor can annul any proceeding of the University but only after giving a show cause notice to the University and considering the show cause, if any. This implies that the Chancellor his to make an inquiry and apply his judicial mind. In the process of making such an inquiry a party which may be directly or indirectly affected has also a right to be heard before the order is made. This clearly makes the power conferred upon the Chancellor under Section 9(4) of the Act a quasi-judicial power. The submission of learned Advocate General that the order of the Chancellor contained in Annexure 15 is an administrative order must, therefore, be rejected. Even with regard to the jurisdiction of administrative bodies in a welfare State, it was observed by Hegde, J. in A.K. Kraipak v. Union of India :
The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but an equipment to act justly and fairly and not arbitrarily or capriciously.... In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.
In the above case of Kralpak, assuming that the power exercised by the selection board was an administrative power, the Supreme Court interfered and set aside the selections made by the previous Chancellor on 26-6-1979 quashing the proceedings of the Syndicate. That order is contained in Annexure 10 and was evidently passed in exercise of the power conferred upon the Chancellor under Section 9(4) of the Act. That order gave a right to the petitioner to be interviewed once again by the Public Service Commission and be considered for the appointment. Before recalling that order the petitioner had a right to be heard since she was likely to be affected by any subsequent order. The aim of the oft, quoted maxim audi aiteram partem is to secure justice. As stated by Hegde, J, in the case of Kraipak(supra);
These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years.... Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the Rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries, inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as wall as administrative enquiries. An unjust decision in administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.
In such a situation, even if the power exercised by the Chancellor is taken to be an administrative one (which it is not), it was obligatory on the Chancellor to give an opportunity to the petitioner to be heard before passing the order contained in Annexure 15. It is universally known that even God gave an opportunity to Adam and Eve to explain their conduct before condemning them for eating the forbidden apple. As observed by V. R. Krishna Iyer J., in the case of Nawab Khan Abbaskhan v. State of Gujarat A.I.R. 1974 S.C. 1971, natural justice doss not exist as an absolute jural value in Indian Constitutional law but is humanistically read by Courts into those great rights considered in Part III as quintessence of reasonableness. In absence of any such hearing, the impugned order (Annexure 16) must be treated to be void and ineffectual as the same has affected the petitioner. Such an order does not really exist and its formal obsequies has to be performed by the issuance of a writ of certiorari.
2. The order contained in Annexure 15 also suffers from another vice. The Act does not clothe the Chancellor with the power to review his own orders. The orders contained in Aunexure 10 was passed under Section 9(4) of the Act and it is well established that unless the statute gives the authority a power to review its own order the same cannot be reviewed. The Chancellor by reviewing the order contained in Annexure 10 has really tried to inject a new life into the recommendation by the Service Commission. The recommendation by the Service Commission was made on 11-4-1979 and was valid only for one year according to Section 58(3) of the Act. The recommendation, therefore, died its natural death on 10-4-1980 and no amount of nectar could inject a new life into it. The Chancellor only performed a post-mortem over its dead body on 5-7-1980 and by doing so he could not bring any life into the dead body. His order dated 5-7-1980 (Annexure 15) is, on that score also, a nullity and must be quashed.
3. With these words, I agree with judgment and order of my learned brother.