Patna High Court
Shri Abhay Nath Jha vs Vice Chancellor, Kameshwar Singh ... on 31 March, 2004
Equivalent citations: 2004(2)BLJR964
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. Heard learned counsel for the parties.
2. The petitioner has come to this Court inter alia submitting that on 16.10.2002 the College Service Commission selected Dr. Abhay Nath Jha at Sl. No. 1 and Dr. Vidya Nath Jha at Sl. No. 2 for their selection and appointment by Devshankar Haldhar Choudhary Sanskrit Mahavidyalaya, Chanpura, Madhubani. According to the petitioner the Registrar of the University on 2.11.2002 issued directions to the Colleges that particular action should be taken in accordance with the said directions. The direction No. 5 is that without the permission of the University the teachers should not be appointed. The item no. 5 does not say that a particular teacher shall not be appointed as a Principal but it simply refers to appointment of a Teacher. But for the present I will assume though I will not hold, that a teacher includes a Principal. In view of the said recommendations the Governing Body of the said College made a request on 29.4.2003 to the Registrar of the University to give permission for appointment of the Principal. In the said letter the details of the recommendees were also given. As nothing has been done in the matter for last more than 10 months the petitioner has come to this Court on 13.10.2003. Despite filing of this writ application and service of the copy on the counsel for the University on 29.9.2003 till date nothing has been done. When the matter came up before this Court on 17.3.2004 this Court directed for personal appearance of respondents No. 1 and 2. They are present in person.
3. The respondents in their counters have submitted that the matter has been referred to the Chancellor because the Chancellor has issued certain directions and has required the Vigilance Section to make an enquiry into the recommendations made by the College Service Commission.
4. Learned counsel for the University submits that as the Chancellor is the seniormost patron/parent of the University his guidance was thought necessary in the matter and for that reason only the respondent University has not passed any orders in the matter.
5. I required the learned counsel for the University to tell me that how an interference can be made by the Chancellor into the acts of the College Service Commission. The learned counsel for the University submitted that the Chancellor has no powers under the Bihar College Service Commission Act, 1976. According to him as 35 bad recommendations were made by the College Service Commission and a complaint was made by then Vice Chancellor of the University to the Chancellor the matter has been referred to the Vigilance Section.
6. Learned counsel further places his reliance upon Section 9 of the Bihar State Universities Act, 1976. Referring to Sub-section (2) and Sub-section (7) of Section 9, it was submitted that the Chancellor has absolute powers and as Section 9 is repository of the powers, the Chancellor could interfere in the matter and refer the matter to the Vigilance for making enquiry.
Sub-section (2) of Section 9 reads as under :--
"Section 9(2).--The Chancellor shall have the powers to inspect the University, its buildings, laboratories, workshops and equipment, any College or hostel, the teaching or examinations conducted, or any act done by the University, and to get such inspection done by such person or persons who may be directed by him and to inquire or to cause an inquiry made, in like manner, in respect of any matter connected with the University [and it shall be the duty of the officers of the concerned University and College to render necessary assistance in such inspection :] Provided that the Chancellor shall, in every case, inform the Vice-Chancellor, of his intention to inspect or inquire or to get the inspection or is inquiry conducted and the University shall be entitled to representation therein."
Sub-section (7) of Section 9 which has also been referred to by the counsel reads as under:--
Section 9(7)(i).--The Chancellor shall have power to transfer the officers and teachers of the Universities from one University to another or in the same University on the same post or on any other equivalent post; the transferees shall retain their respective seniority.
(ii) The Chancellor shall have the power to issue direction to the Universities in the administrative or academic interest of the Universities which he considers to be necessary. The direction issued by the Chancellor shall be implemented by the Vice-Chancellor, Syndicate, Senates and other bodies of the Universities as the case may be.
(iii) Any person aggrieved by such order of the Chancellor may file representation to the Chancellor, who on consideration of the representation shall have the power to affirm, modify or rescind his earlier order and pass such other order or orders which he may deem fit and proper.
7. From a perusal of Sub-section (2) of Section 9 of the Bihar State Universities Act, 1976, it does not appear that the Chancellor by a general order can forestall the appointments. The power conferred upon the Chancellor under Sub-section (2) of Section 9 is to inspect the University, its buildings etc., the teaching or examinations conducted or any act done by the University etc. It has nothing to do with the appointment of a teacher or the Principal of a College.
8. Sub-section (7) of Section 9 simply says that the Chancellor shall have power to transfer the officers and teachers of the Universities from one University to another or in the same University. Sub-clause (ii) of Sub-section (7) says that the Chancellor shall have the powers to issue directions to the Universities in the administrative or academic interest of the University which he considers necessary. It further says that the direction issued by the Chancellor shall be implemented by the Vice-Chancellor, Syndicate, Senate and other bodies of the Universities as the case may be. A fair reading and understanding of Sub-section (7) of Section 9 does not show that in case of appointment of a particular person or in case of grant of permission, in case of appointment or approval to some appointments the Chancellor has any powers. The Chancellor has powers to issue directions to the University in the administrative or academic interest of the University.
9. It is not the say of the University that the Chancellor has issued any direction to the University that in no case any permission or approval is to be granted for appointment of a teacher or a Principal. The Chancellor may be the patron or the seniormost parent of the University but he does not exercise absolute and unfettered powers. When an authority is created under an Act then the authority has to act under the statutes. It can not exercise powers beyond the Act. The Chancellor might have made a complaint into the appointments to the vigilance but that does not mean that he can forestall all the appointments and that too simply because the matter has been referred by him to the Vigilance Section. Nobody knows that as to what is going on in the Vigilance Section. If the matter is to be enquired into by some high police authorities, C.B.I, or Vigilance then that is likely to take years together and for the time ad-infinitum the appointments can not be refused.
10. The unfortunate part is that the Vice-Chancellor simply refers the matter to the Chancellor, the Chancellor does not pass any orders and Vice-Chancellor says that unless the Chancellor issues the directions or guidelines he is unable to do anything.
11. In the. opinion of this Court the letter contained in Annexure 4 has not been issued under the directions of the Chancellor. The Registrar of the University has issued the directions to the Principals and the Secretaries of the Governing Bodies of the Colleges that particular points should be taken into consideration before making the appointment of a teacher.
12. In the present case the Governing Body of the College has sought permission. It is not for the Chancellor to intervene in the matter at this stage nor it was necessary for the Vice- Chancellor or the University to seek permission or obtain guidelines from the Chancellor. The powers of the Vice-Chancellor under Sub-section (4) of Section 9 are that he by order in writing, annul any proceeding or order of the University which is not in conformity with the Act, the Statutes, the Ordinance or the Regulation or for which adequate reason is lacking. Sub-section (4) further provides that before making any such order or direction the Chancellor shall call upon the University to show cause within the time specified why such order or direction should not be annulled, and if any cause is shown within the said time limit, he shall consider the same. The powers conferred upon the Chancellor under Sub-section (4) of Section 9 are to annul any proceeding or the order of the University which is not in conformity with the Act. The order has to be in writing and it has to be passed after giving a notice to show cause to the concerned University and after considering the show cause submitted by the University. The power is a plenary, supervisory but is not prohibitory. Sub-section (4) of Section 9 or any sub- section on of Section 9 does not vest any power into the Chancellor to issue an injunction or a prohibitory order. If an order or proceeding is recorded by the University then the same may be cancelled or annulled by the Chancellor if he holds that the said order is not in conformity with the Act, the Statutes, the Ordinance or the Regulation or for which adequate reason is lacking. Undisputedly till by this time the University has not passed any order nor has recorded any proceedings; in fact it has not moved an inch. If no action is taken by the University, no orders are passed by it, no proceedings are recorded by it then nothing can be cancelled or annulled by the Chancellor. The University has to be allowed to exercise its powers and if the Chancellor after hearing the University records a finding that the order is bad or is not in conformity with the Act, the statutes, the ordinance or the Regulation or the adequate reasons are lacking only then it can annual the order.
13. In the present matter it is not the say of the Vice-Chancellor or the University that the Chancellor has issued any prohibitory order. Simply because the Chancellor has referred the matter to the Vigilance Section the University authorities should not stop exercising the powers which vest in them. They are obliged to pass an order on the recommendations made by the Governing Body of the College. If the Governing Body seeks permission in accordance with the letter contained in Annexure 4 then the University has to pass an order. It can not say that it would not pass an order on the said recommendations simply because the matter has been referred to the Vigilance Committee/Vigilance Section by the Chancellor.
14. The respondent University through its Vice-Chancellor and Registrar are hereby directed to take up the matter immediately and pass necessary orders in the matter.
15. It is, however made clear that this Court is not making any observations on the merits of the matter.
16. The respondent University is further directed to take up the matter immediately and pass an order within four weeks from today. If they grant permission then that would be end of the matter but if they refuse the permission then they would be obliged to pass speaking order.