Patna High Court
Bimal Kumar Jain vs Dr. Ramautar Shukla And Ors. on 16 April, 1981
Equivalent citations: 1981(29)BLJR680
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1.The question which has been raised in this writ application is as to whether respondent No. 1, who was earlier the Chairman of the Bihar Public Service Commission, could have been appointed as the Vice-Chancellor of the Patna University (hereinafter to be referred, to as 'the University') in view of Article 319 (b) of the Constitute on of India.
2. Respondent No, 1, was the Chairman of the Bihar Public Service Commission (hereinafter to be referred to as the Commission') and after ex pert of his term as the Chairman of the commission, he was appointed the Vice-Chancellor of the said University which post he joined on 22-4-1980, Article 319 (b) of the Constitution of India is as follows;
319. On ceasing to hold office-
(a) * * *
(b) the Chairman of a State Public Service Commission shall be eligible for appointmen! as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a state.
The framers of the Constitution have prescribed a prohibition under Article 319 of the Constitution on the Members and Chairman of the Public Service Commission from being 'employed by the Stale Government or the Central Government. In the case of Hargovind Pant v. Dr. Raghukul and Ors. a question had arisen as to whether the office of a Governor of a State is an employment under the Government of India so as to attract the bar of Article 3l9(d)of the Constitution. 1 he respondent in that case prior to his appointment as a Governor was a Member of the Public Service Commission. While holding that the appointment of a Governor shall not be deemed to be an employment under the Central Government, it was pointed out that the prohibition contained under Article 319 was in public interest "with a view to ensuring that no allurement is held out to the Chairman or members of the Union Public Service Commission or a State Public Service Commission which would deflect them from the path of rectitude and duty". If it is held as asserted on behalf of the petitioner that after the appointment as the Vice-Chancellor of the University respondent No. 1 shall be deemed to be under employment of the State Government, then there should not be any difficulty in holding that the said appointment is void, hit by Article 319 (b) of the Consititution.
3. Cause has been shown on behalf of the respondents including the University and the State of Bihar. On their behalf it has been asserted that the Vice-Chancellor of the University is appointed by the Chancellor in consultation with the State Government but it cannot be urged that in such a situation the Vice-Chancellor is under the employment of the State Government so as to attract the constitutional bar. Even the allegation regarding over-all control of the University by the State Government has been repudiated.
4. Mr. Chandra Mauli Kumar Prasad, appearing on behalf of the petitioner, urged that from the different provisions of the Patna University Act, 1976 (hereinafter to be referred to as 'the Act') under which the said University has been established, it will be apparent that the University is under over-all control of the State Government, as such it is an instrumentality or agency of the Government. I may point out that this argument has been advanced on the basis of some recent pronouncements of the Supreme Court in the cases of Sukhdev v. Bhagatram ., Ramana Dayaiam Shetty v. The International Airport Authority of India and Ors. . The Managing Director U.P., Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee , Son Prakash Rekhi v. Union of India and Ors. and Ajay Hasia v. Khalid Mujib , where it has been pointed out that a corporation constituted by an act of the Legislature or a Government company registered under the Companies Act may have their own legal entity but none the less in many cases they are nothing but "instrumentalities or agencies of the Government". In the case of Ramana Dayaram Shetty (supra) it was observed by Bhagwati, J.:
The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of law, they would be distinct and independent legal entities.
5. Courts have laid down some tests on which it can be ascertained that an. Authority which apparently has its own legal existence is nothing but an instrumentality or agency of the Government. Some of such tests are (i) whether extensive; and unusual financial assistance is given to such authority for carrying out its day to day business, (ii) whether there was considerable; amount of State Control over day to day affairs of such an authority, (iii) whether the operation and business carried out by such an authority or corporation is an important public function which in ordinary course had to be carried by the State itself and which are in nature of a governmental function, and (iv) whether such authority of corporation enjoys state protected monopoly status. If the aforesaid tests or some similar thereto are. fulfilled, there should not be any hesitation in holding that such authority is an instrumentality or an agency of the state.
6. It was argued on behalf of the petitioner that in respect of the University in question, most of the tests referred to above, are fulfilled. It was pointed out that the Patna University Act, 1951, which was enacted after coming into force of the constitution, purported to restore the autonomy of the University in many respects. Prior to that under the Patna University Act, 1917 the Central Government and the stats Government were ecxercising power of supervision and control including the power to appoint the Vice" Chancellor. However, Sub-section (2) of Section 10 of 1961 Act provided that the Vice Chancellor shall be appointed by the Chancellor from amongst the persons qualified to hold the office of the Vice-chancellor under Sub-section (1) of that section in accordance with such procedure as may be prescribed by the statutes. The State Government had hardly any say in the matter. It was urged that so far the present Act is concened, the over-all control of the University, including the appointment of the Vice Chancellor, has been vested in the State Government. Reference in this connection was made to different sections of the Act. Sub-sections (2) and (3) of Section 4 vest power in the State Government to transfer or withdraw any teaching or educational institution to and from the jurisdiction of the University. Section 10 A says that the Governor of Bihar shall be the Chancellor and shall by virtue of office be the Head of the University and the president of the Senate. Sub-section (2) of Section 11 of the Act, which is the provision regarding the appointment of the Vice-Chancellor of the said University, is as follows:
The Vice-Chancellor shall be appointed by Chancellor, in consultation with the stats Government from amongst persons having qualifications as mentioned in Sub-section (1)".
Under Section 12 a Vice-Chancellor can be removed by the Chancellor only after consultation with the State Government. Under Section 14-A, which has been later introduced by an Ordinance, the State Government has to appoint a Financial Adviser to the University and any advice by such a Financial Adviser is binding. Section 30 is the provision regarding holding of examinations. It says that the examination of the University shall be held from such date as the State Government may by notification in the official Gazette appoint. The State Government can revise such dates of examination as well. Section 35 incorporates the provision regarding appointments to different posts in the colleges and the University. Sub-section (2) of Section 35 prescribes a bar on the power of any college which is under such University, while apppointing "any person to any post without the prior sanction of the State Government;" The proviso to this Sub-section, however, enables such colleges to make appoint- merit against any sanctioned post of a teacher for a period not exceeding six months without the sanction of the State Government. Section 48 (4) vests power in the State Government to issue direction to the University in respect of preparation of the annual estimate of income and expenditure of the University for the next ensuing financial year. Section 49 which has been amended by a later ordinance authorises the state Government to approve the budget of the university. Under Section 53, the State Government has power to direct any officer of the University to reimburse the amount which he has spent in excess of as provided in the budget or in violation of the provisions of the Act or Regulation, and to realise the same as public demand if the payment was irregular. In view of Section 59, a commission can, be appointed by the State Government to enquire into the working and the financial condition of the University and for certain other connected matters. Sub-section (3) of that section says that after receipt of recommendations from such a commission, the State Government may pass such orders as it may consider fit and after its due publication the University has to comply with such order within the time as specified by the State Government. On behalf of the petitioner it was also pointed out that 80% of the financial resources of the University are met by the State Government. The budget of the University for the year 1980-81 was produced to show that out of estimate 4 crores 33 lacs of rupees, the state has to contribute rupees 3 crores 36 lacs. On basis of aforesaid provision it was urged on behalf of the petitioner that the over-all control of the University is with the State Government and the University has been reduced into a non-entity for all practical purposes.
7. Learned Advocate-General, who appeared for the Chancellor and the State of Bihar, however, submitted that under the changed circumstances and in order to hold examinations in time and to curb the students' indiscipline so that the University may properly function, the Act in question has vested some powers in the State Government, but that does not mean that autonomy of the University has been affected in any manner. It was pointed out that under the existing provisions of the Act the Chancellor is the highest authority of the University who has to supervise and guide the University. The day to day business of the University is carried by the Vice-Chancellor of the University along with the senate, Syndicate and other bodies of the University. In this connection, our attention was drawn to Section 3 of the Act which provides for the establishment and incorporation of the University, reference was made to the different Sub-sections of Section 11 to show that although the Vice-Chancellor is appointed by the Chancellor in consultation with the State Government, still he is not under administrative control of the State Government in the day to day functioning of the University, rather, he has to act in accordance with the statutes and Regulations framed by the senate and Syndicate and other bodies of the University The senate and Syndicate have to perform the statutory functions and they hold, administer and control the fund of the University and the academic standard of the University. It was further urged that as substantial financial requirement of the University is met by the State Government, provisions referred to above have been made so that the funds allotted to the University are properly utilised. But once the funds are allotted, it merges into the fund of the University, under Section 46 of the Act.
8. No doubt, from the provisions of the Act which have been referred to by the petitioner it can be said that autonomy of the University has been denuded to an extent, but in my opinion, it is difficult to hold that the status of the University under the Act has been reduced to that of an agent of the state. In the case of Surya Kant Roy v. Inamul Hai Khan , where a question bad arisen whether the Chairman of the Mines Board of Health appointed by the State Government under the relevant Act will be deemed to be a person holding office under the Government, it was observed:
The control exercised by the Government over the Board in this case does not make the Board an organ of the Government nor does it make the respondent a person holding an office under the Government.
In ray view, under the circumstances mentioned above it is difficult to hold that the University is an agent of the State Government, as such when respondent No. 1 was appointed as the Vice-Chancellor of the University he will be deemed to be under the employment of the State Government. Apart from that, I have not been able to appreciate as to how an employee of an agent which has its own legal entity, can be held to be under employment of the principal For the proposition that an employee of a corporation winch is the agent of the state, will be deemed to be under employment of the state reliance was placed on the following observation in the case of the Managing Director, U.P. Warehousing Corporation and Ors. v. Vijay narayan vajpayee(supra), at paragraph 22:
I find it very hard indeed to discover any distinction on principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a corporation, set up under a statute or incorporated but wholly owned by the Government.
In my view, the aforesaid observations need not bi read to mean that an employee of such corporation or a statutory authority is in service or under employment of the State. Government to whom different articles of the Constitution applicable to persons under employment of the State Government are applicable. The aforesaid observations were made in context of the rights conferred by put III of the constitution. In other words, in the said judgment it was held that in respect of the rights conferred by part III of the Constitution employees of such Corporation and employees who are under direct employment of the State Government have to be treated alike. It cannot be denied that the University is a statutory authority having its own legal existence. Even if it were to be held as an agent or an instrumentality of the State Government, still it shall not become a Department of a State Government so that its employees can be held to be under employment of the State Government, In the case of State of Punjab and Ors. v. Raja Ram and Ors. ., it was observed:
Even the conclusion, however, that the corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the corporation is a Government Department. The reason is that the F. C. Act has given the corporation an individuality apart from that of the Government.
9. It was then urged on behalf of the petitioner that in any case the University has to be held to be a state within the meaning of Article 12 of the constitution; as such, when Article 319(1)(b) of constitution prescribes a bar on the re employment of a person, who has held the office of the Chairman of the public service commission under the Stats Government, it will mean even in respect of authorities which are 'State' within the meaning of Article 12 of the constitution. It was urged that the expression 'State' mentioned in different Articles of the constitution should be given the same meaning. In my opinion, it is difficult to accept this contention. Article 12 opens with the explession. "In this part unless the context otherwise requres the state includes" on a plain reading an enlarged meaning has been given to the expression 'State' for part III. of the Constitution. The University will be deemed to be a 'Stats' under Article 12 because it is a statutory authority and has been vested with the power to make statutes and Regulations In the Full Bench decision of this Court in the case of Umesh Chandra Sinha v. V.N. Singh and Ors. A.I.R. 1968 Pat. 3., this aspect has been examined. But, it cannot be held that because a Corporation or an Authority constituted under any Act is a 'State' within the meaning of Article 12 of the constitution for purpose of part III there of, the other provisions contained in other parts of the constitution also become applicable. In the aforesaid case of Sukhdev Singh (supra), itself it was observed:
The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. By way of abundant caution we state that these employees are not servants of the union or the state. These statutory bodies are 'authorities' within the meaning of Article 12 of the Constitution.
Again, in the case of the Managing Director, U. P. Warehousing Corporation and Ors. (supra), at paragraph 13 it was reiterated that although such statutory bodies were 'authorities' within the meaning of Article 12 of the Constitution, their employees were not servants of the Union or of the state but of a statutory status. In the case of Som Piakash Rekhi (supra), while holding the corporation in question as a limb of the Government, it was observed:
It is a limb of Government, an agency of the state, a vicarious creature of statute working on the wheels of the Acquisition Act. We do not mean to say that for purposes of Article 309 or otherwise this Government Company is state but limit our holding to Article 12 and part III.
In a recent case Ajay Hasia v. Khalid Mujib (supra), the same view has been reiterated:
It is also neceseary to add that merely because a juristic entity may be an ' uthority' and therefore, 'State' within the meaning of Article 12, it may not be elevated to the position of 'State' for the purpose of Arts, 309. 310 and 311 which find a place in part XIV. The definition of 'State' in Article 12 which includes an 'authority' within the territory of India or under the control of the Government of India is limited in its application only to part III and by virtue of Article 36, to part IV, it does not extend to the other provisions, of the constitution and hence a juristic entity which may be 'State' for the purpose of parts III and IV would not be so for the purpose of part XIV or any other provision of the constitution.
In the "aforesaid case it has been specifically, pointed out that such authority will not be deemed to be 'State' for the purpose of part XIV of the constitution. Article 319 (b) with which we are concerned in this case is in part XIV of the constitution.
10. Learned Counsel for the petitioner then submitted that whatever may be said in respect of other employees of the University, so far as the Vice-Chancellor of the University is concerned, as he is appointed by the Governor on the said and advice of the council of Ministers it will be deemed that he has been appointed by the state and is under the employment of the State Government. This argument has been advanced in view of Sub-section (2) of Section 1 of the Act, referred to above. According to the learned Counsel when the Governor has to appoint in consultation with the State Government, the Governor is subject to limitation prescribed by Article 163 of the constitution. It is true that the Governor is the ex-officio Chancellor of the University who has to make the appointment of the Vice-chancellor in consultation with the State Government. But the Governor, as chancellor while making appointment, is exercising a statutory power under the Act and not exercising any function under the Constitution. Article 163 (1) of the Constitution which speaks about the counsel of Ministers with the Chief Minister as the head to aid and advise the Governor, clearly says "in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion". From the aforesaid expressions it is clear that the Governor has to act on the aid and advice by the council of Ministers only in respect of his functions as the Governor, under the constitution, i.e., in respect of governmental functions. The limitation on the powers of the Governor of a state, as pointed out in the case of Shamsher Singh v. State of Punjab , and other judgments of the Supreme Court, shall not apply to the exercise of power under some statute unless there is specific provision in that statute in that respect. Apart from that, so far as the present Act s concerned, the appointment of the Vice-Chancllor is to be made by the Chancellor and not by the Governor. It is not of much consequence that the Governor is the ex-officio Chancellor of the University.
11. According to learned Counsel of the petitioner, when Sub-section (2) of Section 11 says that the Chancellor shall make the appointment in "Consultation with the State Government", in substance it means "as advised by the State Government". Learned Advocate General on behalf of the state and Mr. Prabha Shanker Mishra appearing for respondent No. 1 urged that under Sub-section (2) of Section 11 the Chancellor has to take the decision regarding appointment of a Vice-chancellor in consultation with the State Government, but that does not mean that any advice given by the State Government is binding on the Chancellor, as in the case of the Governor under the constitution. In my view, this submission is well founded The Chancellor has to cousuit the State Government while making appointment to the post of Vice-Chancellor of any University, but he is not bound by such advice. What is required is only a deliteration between the Chancellor and the State Government. The final decision rests with the Chancellor of the University. Reference in this connection may be made to the case of Chan tramouleshwar Prasad v. The Patna High Court and Ors. , where the Supreme Court had to construe the scope of Article 233 of the constitution where similar expressions occur. Article 233 is a provision regarding appointment of the District Judges. The Governor has to make the appointments in consultation with the High Court, it was pointed out as follows:
The underlying idea of the Article is that the Governor should make up his mind after there has been a deliberation with the High Court.... This does not mean that the Governor must accept whatever advice is given by the High Court.
Again, the Supreme Court in the case of Union of India v. Sankalachand and Himatlal sheth and Anr. , while considering the expressions "after the consultation with the Chief Justice of India" occurring in Article 222 of the constitution regarding transfer of a Judge from one High Court to another observed:
What the Constitution requires is consultation with Chief Justice, not his concurrence with the proposed transfer.
In my view, it is futile to urge that when the Act vests power in the Chanceller to make the appointment in consultation with the State Government, the appointing authority is the State Government, the person so appointed will be deemed to be under the employment of the state. In my opinion, the appointment of responent No. 1 as the Vice-Chancellor of the University is not hit by Article, 319 (b) of the constitution, and, as such writ application of the petitioner must fail. It is, accordingly, dismissed but in the circumstances of the case, there shall be no order as to costs.
12. Before I part with the judgment, I must observe that Mr. Chandra mauli Kumar Prasad has very ably assisted the Court and presented the different issues involved in this case.
B.S. Sinha, J.
13. I agree