Patna High Court
Dr. Ram Niranjan Tripathy vs Chancellor, Patna University And Ors. ... on 2 April, 1969
Equivalent citations: 1969(17)BLJR694
JUDGMENT Shambhu Prasad Singh, J.
1. In December 1962, the Patna University, hereinafter to be referred to as "the University", got advertised through the Bihar Public Service Commission, hereinafter to be referred to as "the Commission", the Post of University Professor of Economics. After the applications were received on the 2nd of May, 1963, the Commission interviewed the candidates. On that date only one of the experts was present. The candidates were directed to appear at another interview on the 2nd of December, 1963. No interview could be held even on that date as both the experts were not present. On the 10th of July, 1964, the Commission finally interviewed the candidates including Dr. R.N. Tripathy (petitioner in C. W. J. C. No. 360 of 1967), Dr.. K.N. Prasad (petitioner in C. W. J. C. No, 484 of 1967) and professor Dibakar Jha (respondent No. 4 to . both the writ applications). The Commission recommended two names, namely, those of Dr. K.N. Prasad arid professor Dibakar Jha in accordance with the merit. On the 29th of August, 1964, the Syndicate of the University appointed Professor Dibakar Jha to the. Post though he was the second nominee of the Commission, Dr. K.N. Prasad, the first nominee, was appointed to another post of floating University Professor of Economics. Three posts of floating University Professors were created by the resolution of the Senate dated the 23rd of March, 1956. By the. resolution of the Academic Council dated the 28th of February, 1962, one of these posts was assigned to Economics. This post of floating University Professor of Economics was never advertised. As against the order of the Syndicate, both Dr. K. N. Prasad and Dr. R.N. Tripathy filed representations to the Chancellor, who by his order dated the 5th of May, 1967 (Annexure 'I' to the petition in C. W. J. C. No. 360 of 1967 and Annexure 'R' to the petition in C. W. J. C. No. 484 of 1967) rejected the representations. Thereafter Dr. R.N. Tripathy has filed his writ application before this Court for quashing the order of the Chancellor (Annexure I), the resolution of the Syndicate appointing Professor Dibakar Jha and Dr. K. N. Prasad (Annexure 7) and another resolution of the Syndicate dated the 14th of September, 1964, confirming the previous resolution appointing Professor Dibakar Jha and Dr. K.N. Prasad with slight modifications (Annexure 6), He has also prayed that the recommendation of the Commission be declared void. Dr. K. N. Prasad in his writ application has prayed for quashing the said order of the Chancellor and the resolution of the Syndicate appointing. Professor Jha as the University Professor of Economics and allowing him to continue as Head of the University Department of Economics.
2. As the questions raised in the two writ applications are interrelated, they have been heard together and are being disposed of by this judgment.
3. In the application in C. W. J.C. No. 360 of 1967 and in the counter/affidavits filed by Professor Jha and Dr. Prasad allegations and counter-allegations have been made as to their respective merits for the posts but Mr. Basudev Prasad appearing for Dr. Tripathy has frankly conceded that this Court in exercise of its extraordinary writ jurisdiction cannot go into the question. In support of the application he had advanced the following two contentions, namely, (i) the appointment of Professor Jha was ultra vires of Section 26(2)(iii) of the Patna University Act, 1961, hereinafter to be referred to as "the Act", inasmuch as the Commission changed the experts who were originally invited to assist it; and (ii) the appointment of Dr. K. N. Prasad was ultra vires of Section 26 of the Act read with statutes framed under Section 30(f) of the Act because the post was never advertised.
4. Mr. J. C. Sinha, appearing for Dr. K. N. Prasad in C. W. J. C. No. 484 of 1967, has challenged the resolution of the Syndicate appointing Professor Jha on the ground that according to the statute of the University the Syndicate if differed from the recommendations of the Commission and appointed the second nominee in preference to the first nominee, it was bound to state reasons and in absence of reasons the order of appointment was ultra vires. He has further submitted that the order of the Syndicate allowing Professor Jha to continue as Head of the Department of Economics in the University was bad inasmuch as according to a resolution of the Syndicate if two persons recommended by the Commission are appointed simultaneously, the seniority is to be determined in order of preference indicated by the Commission.
5. I propose to take up first for consideration the arguments of Mr. Prasad in C. W. J. C. No. 360 of 1967. Section 26 of the Act deals with the appointment to posts of teachers and officers of the University. Sub-section (i) of this section provides that subject to the provisions of the Act and the Statutes made thereunder, the Commission shall, in relation to appointments to posts of teachers and officers of the University other than the Vice/Chancellor, the Treasurer and the Dean, discharge, so far as may be, the same functions as have been assigned to it by Article 320 of the Constitution in relation to the services of the State. According to Sub-section 2(i) of this section, the Commission in making recommendations for appointment to every post of teacher shall have the assistance of two experts in the subject for which an appointment is to be made. One of these experts should ordinarily be a teacher of the University to be nominated by the Syndicate and the other should be a person other than a teacher to be nominated by the Academic council. According to Sub-section 2(iii) of this section, the expert or experts shall be associated with the Commission whose duty it shall be to give expert advice to the Commission but who shall have no right to vote. Sub-section (3) lays down that the Commission shall, wherever feasible, recommend to the Syndicate, for appointment to every post of teacher or officer of the University, names of two persons arranged in order of preference, and considered by the Commission to be the best qualified therefore, according to Mr. Prasad, it is not open to the Commission to make any change in the experts and it must have assistance only from those experts who were originally selected for the purpose. If they make changes in the experts as they have done in the instant case, they have acted against the provisions of Sub-section (2)(i) of Section 26. There appears no substance in this contention as there is nothing in Sub-section (2)(i) of Section 26 to show that in no case the Commission can have assistance from experts other than those who are originally selected or invited for the purpose. It is true that ordinarily there should be no change in the experts who are originally invited but in cases where either of the experts or both of them are not available or in other unavoidable circumstances, they may have to be changed and new experts invited to assist the Commission.
6. In what circumstances the Commission had to invite experts other than those who were originally invited to assists it is explained in paragraphs 9 and 10 of the counter-affidavit on behalf of respondent No. 2 (The Vice Chancellor, Patna University, Patna), respondent No. 3 (The Syndicate, Patna University, Patna, through the Vice-Chancellor, Patna) and respondent No. 6 (the Patna University through the Registrar, Patna). The experts, who were originally invited by the Commission in accordance with the nominations of the Syndicate and the Academic Council, were Dr. Baljit Singh and Dr. K.N. Raj. On the 2nd of May, 1963 only Dr. Baljit Singh was present. Dr. K. N. Raj expressed his inability to attend. After the candidates were interviewed all the papers and their works were sent to Dr. Raj for obtaining his view; but. for want of time he returned all those papers without giving any view. Then those papers were sent to one Dr. B.N. Ganguly, whose name was also on the penal of experts. He too declined to assist the Commission. Then those papers were sent to Dr. R. Balkrishna and he did send some opinion to the Commission. It appears, however, that the Commission was of the view that Dr. Balkrishna had expressed his opinion without looking into all the relevant documents, and, therefore, its Secretary enquired from the University whether the latter in the circumstances would like to nominate experts afresh. In response to this letter, the University nominated new names of experts to the Commission including that of Dr. R. Balkrishna Neither of the experts invited to assist the Commission could present himself on the 2nd of December, 1963, and it was for this reason that the condidates were not interviewed. Dr. R. Balkrishna was again requested by the Commission to assist it as one of the experts at the interview to be held on the 10th of July, 1964, but he declined. It was in those circumstances that Sri I.G. Patel and Dr. S.K. Basu were invited by the Commission to assist it in interviewing the candidates on the aforesaid date. They assisted the Commission on that date and it sent its recommendations after considering their advice. It has been alleged in the petition that Dr. R. Balkrishna advised the Commission to give first preference to Dr. R.N. Tripathy. In the counter affidavit of respondent Nos. 2, 3 and 6 it is stated that they have got no knowledge of it. It is not necessary for us to investigate whether Dr. R. Balkrishna did advise the Commission to give first preference to Dr. R.N. Tripathy inasmuch as advice or opinion of any expert is not binding on the Commission which was of the opinion that Dr. R. Balkrishna had advised the Commission without looking into all the relevant documents. But on the arguments advanced by. Mr. Prasad the Commission would have acted illegally if it would have taken into account the advice of Dr. R. Balkrishna because he was also not one of the experts who were originally invited.
7. Mr. Prasad has also urged that the two experts who finally assisted the Commission were nominated only for the session 1963-64 and they could not have legally assisted the Commission on the 10th July 1964. Learned Counsel for respondent Nos. 2, 3 and 6 has, however, drawn our attention to Annexures 'H' and 'I' to the counter-affidavit filed on behalf of these respondents to show that the same experts were nominated for the session 1964-65 as well. It may further be stated in this connection that Dr. R.N. Tripathy did appear at the interview on the 10th of July 1964, and on that date or before it he did not protest to the Commission that it had acted illegally in inviting new experts to assist it. After having appeared at an interview and not having protested to the participation of new experts, he cannot be allowed to challenge the recommendations of the Commission on the ground aforesaid when the Commission did not find him fit for the post and recommended the names of other two persons. Mr. Prasad has not been able to point out any other provisions of the Act, the Statutes made by the University under the Act or any other law to show that the procedure adopted by the Commission was illegal. In my opinion, therefore, there is no substance in the first contention of Mr. Prasad. This contention of Mr. Prasad must, therefore, be rejected.
8. Mr. Basudev Prasad has challenged the appointment by the Syndicate of Dr. K. N. Prasad on the ground that the post of the floating University Professor of Economics was never advertised. According to Section 30 of the Act, which corresponds to Section 28 of Bihar Act XXV of 1951, Statutes may be made providing for all or any of the matters enumerated therein. The matter mentioned in Clause (f) of the section is "the classification, made of appointment and recognition of teachers of the University." Clause (2) of the Statutes relating to mode of appointment of teachers of the University, as it stands after the amendment and asserrt of the Chancellor dated the 30th of November, 1962, runs as follows:
The posts of University Professor shall not be filled up by promotion of teachers in the University, but only by open advertisement through the Bihar Public Service Commission, save where in exceptional cases, the Vice-Chancellor decides with the approval of the Chancellor that the post of filled up by negotiation.
The very language of Clause (2) shows that advertisement of the post is not imperative because it also empowers the Vice Chancellor with the approval of the Chancellor to fill up some of the posts by negotiation, of Bourse in exceptional cases, Propriety no doubt demands that the University ought to advertise the posts of University Professors when they are to be filled up. But it cannot be held that because the post was not advertised the appointment is illegal. Even if it be assumed in favour of the petitioner that the requirement of advertising the post of University Professor, as mentioned in Clause (2) of the Statute, is imperative, in my opinion, petitioner Dr. R.N. Tripathy is not entitled to issuance of a writ declaring the appointment of Dr. K. N. .Prasad ultra vires inasmuch as his rights in no way have been prejudiced. He was a candidate for the post of University Professor of Economics and after considering his case the Commission did not recommend his name. It does not appear likely that if the post of floating University Professor of Economics would have also been advertised along with the post of University Professor, the Commission would have recommended his name above Dr. K. N. Prasad. In the instant case the Syndicate has not appointed any one whose name was not recommended by the Commission and what Sub-section (4) of Section 26 of the Act ordinarily requires is that the Syndicate shall make its selection out of the names recommended by the Commission. In my opinion, therefore, there is no substance in this contention of Mr. Prasad either.
9. I now advert to the argument of Mr. J. C. Sinha in C.W.J.C. No, 484 of 1967 that because the Syndicate has not recorded its reasons for appointing Professor Dibakar Jha to the post of University Professor of Economics in preference to Dr. K. N. Prasad, whose name was recommended first by the Commission, the appointment is illegal. In support of this contention he has placed strong reliance on Clause (7) of the Statute which runs as follows:
Whenever the Syndicate does not appoint the first no mine of the Bihar Public. Service Commission to any particular post, it shall record its reasons for doing so and the same shall be forwarded to Chancellor for his information.
According to Mr. Sinha this clause is mandatory. On the other hand, Mr. Chatterji appearing for respondent Nos. 2, 3 and 6 and Mr. Padmanand Jha appearing for respondent No. 4 have contended that this clause is merely directory and reasons, if any, to be recorded are only for the information of the Chancellor. Mr, Sinha in support of his contention has relied on the following decisions in Collector of Monghyr and Ors. v. Keshav Prasad Goenka and Ors. A.I.R. 1962 S.C. 1894; Associated Electrical Industries (India) Private Ltd. Calcutta v. Its Workmen ; Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Anr. A.I.R. 1968 S.C. 1430; Sudhansu Kanta Acharyya v. State of Bihar and Ors. A.I.R. 1954 Pat, 299 and Nand Nandan Sarup v. District Magistrate, Patiala and Ors. F.B. Mr. Chatterji, on the other hand, has relied on the decision in K. Venkataramiah v. A. Seetharama Reddy and Ors. , where it was held that the provisions of Order 41, Rule 27(2) of the Code of Civil Procedure that the appellate court shall record reasons for admitting additional evidence are not mandatory. It is now well-set-tied that mere use or non-use of the expression "shall" is not conclusive for determining whether the provisions of any Act or Rule are mandatory or directory. For finding out whether the provisions are mandatory or directory, the purpose for which they are enacted has to be looked into. Where a particular section of any Act or a Rule lays down that reasons should be recorded and the non-recording of the reasons will defeat the very purpose behind the enactment of the Act or the Rule, in such cases the direction for recording reasons has to be held as mandatory, Mr. Sinha has contended that the purpose behind the provisions for recording reasons in Clause (7) of the Statute is to exercise a check on the arbitrary exercise of powers by the Syndicate and it is not for mere information of the Chancellor. In my opinion, it is not really necessary to decide this controversy in the instant case though the interpretation put on Clause (7) by learned Counsel for the respondents appear to be plausible. However, there cannot be two opinions about it that when the Syndicate does not appoint the first nominee of the Commission, it ought to follow the requirement of this clause of the Statute, even if not mandatory, because that will save it from the criticism that it has acted arbitrarily.
10. In the instant case, from the materials on record it is possible to ascertain what weighed with the Syndicate in preferring the second nominee of the Commission over the first nominee. Respondent No. 2 has placed on the record along with the counter-affidavit filed on his behalf as Annexure 'I' his letter dated the 18th of September, 1964, addressed to the Secretary of the Chancellor. This letter was written only four days after the Minutes of the, Syndicate dated the 29th of August, 1964, were confirmed and thus it is a contemporaneous document. It states:
...I would like to report to the Chancellor that the main consideration which weighed with the majority of members who voted for the appointment of Professor Dibakar Jha as University Professor of Economics was his seniority and also the fact that he has been the Head of the Department of Economics for a number of years.
It would thus appear that one of the reasons which weighed with the Syndicate in preferring Professor Jha to the petitioner was his experience as Head of the Department of Economics for a number of years. From the notes of discent of three of the members of the Syndicate in Annexure 'B' to the petition it also appears that in the beginning the members of the Syndicate were in favour of appointing the petitioner to the post of University Professor of Economics but when they came to know that such a decision would make the petitioner senior to Professor Dibakar Jha, who was already Head of the Department of Economics, they changed their view in his favour. In cases where the Court, from the materials on the record, comes to know of the reasons behind an order, though they are not stated in writing, it would not ordinarily exercise its extraordinary writ jurisdiction on the mere ground that reasons are not recorded unless mala-fide and arbitrariness are alleged and proved. In my opinion, for the foregoing reasons, the petitioner of this case is not entitled to the writ prayed for on the ground that reasons have not been recorded by the Syndicate as required by Clause (7) of the Statute.
11. In support of his contention that the order of the Syndicate in allowing Professor Jha to continue as Head of the Department of Economics was bad, Mr. Sinha has placed reliance on resolution No. 73 adopted by the Syndicate at its meeting dated the 30th of October, 1967. The relevant portion of the resolution is as follows:
(1) That ordinarily date of joining a post should determine the seniority of teachers except in cases where two or more persons are appointed on the recommendation of the Public Service Commission made at one and the same interview when seniority will be determined by the order of preference given by the Public Service Commission irrespective Of the date of joining....
This resolution has not got the force of a statute. This was a resolution of the Syndicate and the Syndicate could rescind or modify it by? another resolution. In the instant case, as stated earlier, Professor Jha was preferred over the petitioner because in spite of the fact that he was holding the post of Head of the Department of Economics for some years if the petitioner would have been appointed University Professor of Economics, he would have got that post. Obviously, therefore, the Syndicate intended that Professor Jha should be senior to the petitioner in spite of its previous resolution quoted above and now the petitioner cannot be allowed to contend that he should be made senior to Professor Jha because of that resolution. Thus there is no merit in this contention of Mr. Sinha as well.
12. In the result, both the applications fail and they are dismissed but in the circumstances of the case without costs.
S.N.P. Singh, J.
13. I agree.