Patna High Court - Orders
Dr,Arun Kumar Sinha & Ors vs The State Of Bihar & Ors on 12 September, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9167 of 2012
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1. Dr. Arun Kumar Sinha, Son of Shri Bhola Nath Sinha, Residing at
Mansa, 3A/16, West Mahesh Nagar, Patna
2. Dr. Sachidanand Singh, Son of Shri Bisambhar Singh, Achavyapur
Colony, Azizghat Diara, Biharsharif, District-Nalanda
3. Dr. Vijay Shankar Rai, Son of Bhola Rai, Reader, Department Of Hindi,
SMSG College, Sherghati, District-Gaya
4. Vishundeo Rajak, Son of Late Jhari Rajak, Resident of Village-Porar Via
Bisudeopur Chandel, P.S.-Jandaha, District-Vaishali
5. Dr. Arjun Sharma, Son Of Late Basudeo Sharma, C/O Shyama Charan
Sinha, 10, West Anandpuri, Near SBI, Anandpuri, Patna
.... .... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government Of Bihar,
Old Secretariat, Patna
2. The Principal Secretary, Human Resource Development Department,
Government of Bihar, Old Secretariat, Patna
3. The Magadh University through the Registrar Magadh University, Bodh
Gaya
4. The Vice-Chancellor, Magadh University, Bodh Gaya
5. The Registrar, Magadh University, Bodh Gaya ...... Respondents Ist Set.
6. The Selection Committee, Magadh University through Chairman-Cum-
Vice Chancellor, Magadh University
7. Dr. Arun Kumar, Acting Vice-Chancellor Magadh University, Bodh
Gaya
8. Dr. Sheo Jatan Thakur, Ex-Member Selection Committee, Magadh
University, Bodh Gaya Presently Posted as Professor, Department Of
English, Patna University, Patna
9. Dr. Raj Mukul, Member Selection Committee, Magadh University, Bodh
Gaya, Presently Posted as Regional Deputy Director Of Education, Magadh
Division, Gaya
10. Dr. R. Pandey, Member Selection Committee Magadh University Bodh
Gaya, Presently Posted as Pro-Vice-Chancellor Nilamber Pitambar
University Daltonganj (Palamu) Jharkhand
11. Prof. Surendra Kumar Brahmachari, Ex-Vice Chancellor, K.S.D.S.
University Darbhanga, Member Selection Committee, Magadh University,
Bodh Gaya, at Present Residing at 75, Patliputra Colony, Patna-13
12. Dr. Shree Kant Sharma, Member, Selection Committee, Magadh
University, Bodh Gaya, at Present Posted as Principal, Gaya College, Gaya
13. Prof. Dr. Victor Tigga, Ex-Vice-Chancellor SKM University, Dumka,
Jharkhand, Member Selection Committee, Magadh University PANSY-
Apartment, 2/C S-Uryoday Nagar, Ashok Path, Kankey Road, Ranchi-
834008
14. Professor Baleshwar Paswan, Son of Not Known Chancellor Nominee
Selection Committee, Magadh University, Bodh Gaya, H.O.D. P.G.
Department Of Commerce, V.K.S. University, Ara .....Respondents 2nd Set
15. Dr. Shailej Kumar Shrivastava, Son of Not Known Presently Posted as
Principal ANS College, Nabinagar, Auranagabad (Bihar)
16. Dr. Kumar Rajeev Ranjan Son of Not Known Presently Posted as
Patna High Court CWJC No.9167 of 2012 (12)
2
Principal G.J. College, Rambag, Bihta, District-Patna
17. Dr. Anand Kumar Singh, Son of Not Known Presently Posted as
Principal, D.N. Sinha College, Jehanabad, District-Jehanabad
18. Dr. Rajesh Shukla, Son of Not Known Presently Posted as Principal
JLN College, Khagaul, Patna
19. Dr. Pushpendra Kumar Verma, Son of Not Known Presently Posted as
Principal RLSY College, Bhakhtiyarpur, Patna
20. Dr. Jawahar Prasad Singh, Son of Not Known Presently Posted as
Principal, S. U. College, Hilsa, District-Nalanda
21. Dr. Raj Kumar Majumdar, Son of Not Known Presently Posted as
Principal, SPM College, Udantpuri, District-Nalanda
22. Dr. Ganesh Mahto, Son of Not Known Presently Posted as Principal
Daudnagar College, Daudnagar, District-Aurangabad
23. Dr. Phulo Paswan, Son of Not Known Presently Posted as Principal,
RLSY College, Aurangabad (Bihar)
24. Dr. (Smt.) Sushila Das, Wife of Not Known Presently Posted as
Principal RPM College, Patna City, Patna
25. Dr. Tapan Kumar Sandilya, Son of Not Known Presently Appointed as
Principal, Head Quarter, Magadh University, Bodh Gaya, Presently Posted
as Pro-Vice-Chancellor T.M.B. University, Bhagalpur, Bhagalpur (Bihar)
26. Dr. Om Prakash Singh, Son of Not Known Presently Posted as
Principal, S. Sinha College, Aurangabad (Bihar)
27. Dr. Satish Singh Chandra, Son of Not Known Presently Posted as
Principal, M.M. College Bikram, Patna, Bihar
28. Dr. Dilip Kumar, Son of Not Known Presently Posted as Principal M.D.
College, Naubatpur, Patna (Bihar)
29. Dr. Satyendra Prajapati, Son Of Not Known Presently Posted as
Principal S.N. Sinha College, Tekari, Gaya, Bihar
30. Dr. Md. Shamsul Hasan, Son of Not Known Presently Posted as
Principal, S.M.S.G. College, Sherghati, Gaya, Bihar
31. Sr. Sunil Suman, Son of Not Known Presently Posted as Principal, T.S.
College Hisua, Naudah, Bihar
32. Dr. (Mrs.) Meera Kumar, Wife of Not Known Presently Posted as
Principal, G.B.M. College, Gaya, Bihar
33. Dr. Vijay Razak, Son of Not Known Presently Posted as Principal S.D.
College, Kaler, Arwal, Bihar
34. Dr. Jitendra Rajak, Son of Not Known Presently Posted as Principal,
R.P.S. College, Mokamah, Patna
35. Dr. Vinod Kumar, Son of Not Known Presently Posted as Principal
Jawaharlal Nehru Memorial College-Ghorasahan, East Champaran
Respondents 4th Set.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.15854 of 2012
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Dr. Praveen Kumar, S/O Late L.N. Karn, R/O Mohalla- Flat No.- C/2,
Onkar Appartment, Shekhpura Bagicha, P.S.- Shastri-Nagar, District- Patna
.... .... Petitioner/s
Versus
1. The Magadh University through it's Registrar, Magadh University, Bodh
Patna High Court CWJC No.9167 of 2012 (12)
3
Gaya
2. The Vice-Chancellor Cum Chairman, Selection Committee, Magadh
University, Bodh Gaya
3. The University Selection Committee, Magadh University through it's
Chairman Cum Vice Chancellor, Magadh University, Bodh Gaya
4. Dr. Lalan Kumar, S/O Not Known Presently Posted as Reader in
Chemistry, B.S. College, Danapur
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.17027 of 2012
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Dr. Lalan Kumar, S/O Shri Sahajanand Prasad, R/O Amba Vihar, Dr.
Ambedkar Path, Bailey Road, Rupaspur, P.O.-Bihar Veterinary College
Campus, Distt-Patna
.... .... Petitioner/s
Versus
1. Magadh University , Bodh Gaya through its Registrar
2. The Vice Chancellor , Magadh University, Bodh Gaya
3. The Registrar, Magadh University, Bodh Gaya
4. Dr. Tapan Kumar Shandilya, Presently Working and Posted as Pro-Vice
Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.13698 of 2012
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Dr.Pramila Sharma, D/O Shree Ram Uday Singh, and W/O Shree Mahesh
Prasad Singh, Resident Of A/76, Housing Colony, Lohiyanagar, Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar, through the Chief Secretary, Government Of Bihar,
Old Secretariat, Patna.
2. The Principal Secretary, Human Resources Development Department,
Government Of Bihar, New Secretariat, Patna.
3. The Magadh University through the Registrar Magadh University, Bodh
Gaya.
4. The Vice Chancellor, Magadh University, Bodh Gaya.
5. The Registrar, Magadh University, Bodh Gaya. ....Respondent Ist set.
6. The Selection Committee, Magadh University Chainnan-Cum-Vice
Chancellor, Magadh University.
7. The Arun Kumar, Acting Vice-Chancellor Magadh University, Bodh
Gaya.
8. Dr. Sheo Jatan Thakur, Ex- Member Selection Commitee, Magadh
University, Bodh Gaya Presently Posted as Professor, Department Of
English, Patna University, Patna.
9. Dr. Raj Mukul, Member Selection Committee, Magadh University,
Bodh Gaya, Presently Posted as Regional Deputy Director Of Education,
Patna High Court CWJC No.9167 of 2012 (12)
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Magadh Division, Gaya.
10. Dr. R. Pandey, Member Selection Committee Magadh University Bodh
Gaya, Presently Posted as Pro-Vice Chancellor, Nilamber Pitambar
University Daltonganj, (Palamu) Jharkhand.
11. Prof. Surendra Kumar Brahmachari, Ex- Vice Chancellor K.S.D.S.
University Darbhanga Member Selection Committee, Magadh University,
Bodh Gaya.
12. Dr. Shree Kant Shatma, Member Selection Committee, Magadh
University, Bodh Gaya, at Present Posted as Principal, Gaya College, Gaya.
13. Prof. Dr. Victor Tigga, Ex- Vice Chancellor, SKM University, Dumka
Jharkhand, Member Selection Committee, Magadh University PANSY-
Apartment, 2/C Suryoday Nagar, Asaok Path, Kankey Road, Rancm-
834008
14. Professor Baleshwar Paswan S/O not known, Chancellor Nominee
Selection Committee, Magadh University, Bodh Gaya, H.O.D.P.G.
Department Of Commerce, V.K.S. University, Ara....Respondent 2nd set
15. Dr. Shailej Kumar Shrivastava S/O not known Presently Posted as
Principal ANS College, Nabinagar, Aurangabad (Bihar)
16. Dr.Kumar Rajeev Ranjan, S/O not known presently Posted as Principal
G.J. College, Rambag, Bihta, District- Patna.
17. Dr. Anand Kumar Singh, S/O not known Presently Posted as Principal,
S.N. College, Iehanabad, District- Jehanabad.
18. Dr. Rajesh Shukla, S/O not known Presently Posted as Principal JLN
College, Khagaul, Patna.
19. Dr. Pushpendra Kumar, Verma S/O not known Presently Posted as
Principal RLSY, College, Bhakhtiyarpur, Patna.
20. Dr. Jawahar Prasad Singh, S/O not known Presently Posted as Principal,
S.U. College, Hilsa, District- Nalanda.
21. Dr. Raj Kumar Majumdar, S/O not known Presently Posted as Principal
SPM College, Udantpuri, District- Nalanda.
22. Dr. Ganesh Mahto, S/O not known Presently Posted as Principal
Daudnagar, College, Daudnagar, District- Aurangabad.
23. Dr. Phulo Paswan, S/O not known Presently Posted as Principal, RLSY
College, Aurangabad (Bihar)
24. Dr. (Smt.) Sushila Das, W/O not known Presently Posted As Principal
RPM College, Patna City, Patna.
25. Dr. Tapan Kumar Sandilya, S/O not known Presently University, Bodh
Gaya, Presently Posted as Pro-Vice Chancellor, T.B.M. University,
Bhagalpur, (Bihar)
26. Dr. Om Prakash Singh, S/O not known presently Posted as Principal, S.
Sinha College, Aurangabad, (Bihar)
27. Dr. Satish Singh Chandra, S/O not known Presently Posted as Principal,
M.M. College, Bikram, Patna, Bihar.
28. Dr. Dilip Kumar S/O not known Presently Posted as Principal M.D.
College, Naubatpur, Patna (Bihar)
29. Dr. Satyendra Prajapati, S/O not known Presently Posted as Principal
S.N. Sinha College, Tekari Gaya, Bihar.
30. Dr. Md. Shamsul Hasan, S/O not known Presently Posted as Principal
S.M.S.G. College, Sherghati, Gaya, Bihar.
31. Dr. Sunil Suman S/O not known Presently Posted as Principal, T.S.
College, Hisua, Naudah, Bihar.
32. Dr. (Mrs.) Meera Kumari, W/O not known Presently Posted as
Patna High Court CWJC No.9167 of 2012 (12)
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Principal, G.B.M. College, Gaya, Bihar.
33. Dr. Vijay Razak, S/O not known Presently Posted as Principal S.D.
College, Kaler, Arwal, Bihar.
34. Dr. Jitendra Rajak S/O not known Presently Posted as Principal, R.R.S.
College, Mokamah, Patna.
35. Dr. Vinod Kumar S/O not known Presently Posted as Principal
Jawaharlal Nehru Memorial College, Ghorasahan, East Champaran.
.... .... Respondent/s
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Appearance :
(In CWJC No.9167 of 2012)
For the Petitioner/s : Dr. K.N. Singh, Sr. Advocate.
Mr. Sunil Kumar Singh, Advocate.
For Intervener Petitioners : Mr. Abhay Kuamr Singh, Sr. Advocate.
Mr. Diwakar Prasad Karn, Advocate.
Mr. Chandra Shekhar Anand, Advocate
For the State :Mr. Prashant Pratap GP6
For Magadh University :Mr. Binod Kanth, Sr. Advocate.
Mr. Anil Kumar Sinha,
Mr. Hans Raj, Advocates.
For Respondent no.7 : Mrs. Nutan Sahay, Advocate.
For Respondent No.8 : Mr. Shiv Jatan Thakur (in person)
For Resp. Nos. 9,10, & 13 : Mr. R.K. Shukla, Advocate.
For Resp. Nos.16,17 & 20 : Mr. Rabi Bhushan Prasad, Advocate.
For Resp.Nos. 15 and 23 : Mr. Navin Prasad Singh,
Mr. Narayan Singh, Advocates.
For Respondent No.18 : Mr. Rupak Kumar, Advocate.
For Resp.Nos.19,26, 27 : Mr. Abhinav Shrivastava, Advocate
and 31
For Respondent No.21 Mr. Manoj Kumar Singh,
Mr. Ram Bilash Thakur,
Mr. Chandan Kumar Verma, Advocates.
For Respondent No.22 Mr. Ram Bilash Thakur,
Mr. Manoj Kumar Singh, Advocates.
For Respondent. No.24 Mr. Rama Nand Poddar, Advocate.
For Respondent No. 28 :Mr. Ajit Kumar,
Mr. Avinash Kumar, Advocates.
For Resp. Nos.29,32,33,34 : Mr. Ajeet Kumar,
Mr. Avinash Kumar, Advocates.
For Respondent No.35 : Mr. Shiv Shankar Kumar, Advocate.
(In CWJC No.15854 of 2012)
For the Petitioner/s : Mr. Abhay Kumar Singh, Sr. Advocate.
Mr. Diwakar Prasad Karn, Advocate.
Mr. Chandra Shekhar Anand, Advocate.
For Magadh University : Mr. Hans Raj, Advocate.
For Respondent No.4 : Mr. Abhay Kumar Singh-I,
Mr. Sunil Kumar Karn, Advocates.
(In CWJC No.17027 of 2012)
For the Petitioner/s : Mr. Abhinav Srivastava, Advocate.
Patna High Court CWJC No.9167 of 2012 (12)
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For respondent (intervenor): Mr. Abhay Kr. Singh, Sr. Advocate.
Mr. Diwakar Prasad Karn, Advocate.
For Magadh University : Mr. Hans Raj, Advocate.
(In CWJC No.13698 of 2012)
For the Petitioner/s : Mr. Mritunjay Kumar, Advocate
For the State :
For Magadh University : Mr. Hans Raj, Advocate.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
12 12.09.2014Heard learned counsel for the petitioners, State, University as well as private respondents.
C.W.J.C. No. 9167 of 2012
2. In the present writ petition the petitioners have made a prayer for quashing the entire selection and panel prepared by respondent 2nd set, namely, Selection Committee and its members in connection with advertisement issued by Magadh University, Bodh Gaya dated 25.10.2008 (Annexure-1) in Dainik Jagran regarding recruitment of 22 posts of Principals in the Constituent Colleges of Magadh University. Further a prayer has been made for quashing the notification of appointment of Principals in Magadh University service issued by the Vice-Chancellor under the Signature of Registrar, Magadh University, as contained in Memo No.I Gen(I)548/11/99/GIA/12 dated 2.3.2012 (Annexure-13) by which 21 candidates of different categories from Selection Panel have been appointed and also challenged the Patna High Court CWJC No.9167 of 2012 (12) 7 notification vide Memo No.I Gen(1)/548/11/100/GIA/12 dated 2.3.2012 (Annexure-14) by which ten persons were confirmed from initial date and posted at different Collegesand Memo No.I Gen(I)548/11/128/GIA/12 dated 23.3.2-12 (Annexure-14/A) by which ten teachers have been posted at different Colleges. Further prayer has been made for fresh selection after constituting fresh Selection Committee properly.
3. In nutshell learned counsel for the petitioners has taken ground that (i)Selection Committee was not constituted as per the Bihar State University Act, 1976 (hereinafter referred to as „the Act‟) or Statute framed therein. (ii) Selection process was proceeded without necessary Coram
(iii) Experts who have purportedly signed the select list either have denied signature or withdrew the signature from select list to have signed that list, persons having given marks of interview have not signed the select list (iv) While holding the selection, the Selection Committee did not follow the law of reservation and did not apply uniform standard while granting marks in research paper in contra different standard was adopted while granting marks to different persons. Further plea has been taken in S.L.P. No. 25973 of 2011 before the Patna High Court CWJC No.9167 of 2012 (12) 8 Hon‟ble Supreme Court apprising the Court that select list was ready awaiting the approval of the competent authority very shortly but the fact was otherwise as the meeting of the Selection Committee was still to be convened for finalization of selected list and accordingly vide order dated 21.11.2011 (Annexure-11) S.L.P. No.25973 of 2011 was disposed of as having become infructuous, thereafter an interlocutory petition vide I.A.87-89 of 2012 and I.A. No.4-6 of 2012 in S.L.P. No.(C) 11529-11531 of 2011, on the statement at Bar that requisite number of members of Selection Committee have already signed the proceeding, basing on that statement, the Hon‟ble Supreme Court vide order dated 2.3.2012 if that be so there should not have been any hesitation in declaring result.
4. Facts of the case :
Magadh University, Bodh Gaya issued an advertisement dated 25.10.2008 (Annexure-1) calling upon the eligible candidates for the appointment against 22 vacancies of the Principals in the constituent Colleges of Magadh University.
Selection Committee conducted the interview, panel was finalized and selection was made which was challenged before this Court vide C.W.J.C. No.17804 of 2009 (Dr. Bimal Patna High Court CWJC No.9167 of 2012 (12) 9 Prasad Sinha Vs. The State) reported in 2011(1) PLJR 1134.
The Court heard the writ petition and quashed the appointment of the Principals and directed to embark upon fresh selection after issuing fresh advertisement within six months and till then the appointed Principals were allowed to continue without independent financial power subject to control of respondent University. Out of 22 appointees, 18 Principals challenged the order of the learned Single Judge vide L.P.A. No.358 of 2011 which was dismissed vide order dated 5.4.2011.
5. Against the order passed in the aforesaid Letters Patent Appeal, 18 Principals who were parties to the Letters Patent Appeal moved to Hon‟ble Supreme Court vide S.L.P. NO.11529-11531 of 2011. The Hon‟ble Supreme Court vide order dated 6.5.2011 (Annexure-4) dismissed the S.L.P. but with certain directions that the University shall make fresh selection from amongst those who had applied pursuant to the advertisement issued on 25.10.2008 (Annexure-1) strictly in accordance with the relevant statutes, rules and regulations and without being influenced by the directions given by the learned Single Judge in the last portion of the order passed by him. Further it has been directed that the University shall Patna High Court CWJC No.9167 of 2012 (12) 10 complete the process of selection within a period of four months. Till then, the person so selected would continue in their respective position. However, it is made clear that the order would not create any equity in favour of the petitioners.
6. One Vijay Shanker Rai (petitioner no.3) who was also party in L.P.A. 610 of 2011 arising from order dated 28.1.2011 passed in C.W.J.C. No.17804 of 2009 preferred S.L.P. No.26405 of 2011 which was dismissed vide order dated 30.9.2011 (Annexure-5) in terms of the order dated 6.5.2011 passed in S.L.P. No.11529-11531 of 2011. The appointment of Dr. Arvind Kumar on the post of Vice- Chancellor of Magadh University was challenged before this Court in C.W.J.C. No.8141 of 2010 and the same was allowed, and his appointment was quashed. He preferred L.P.A. No. 824 of 2011, the same was admitted for hearing but no stay was granted. He preferred S.L.P. No. 15785 of 2011 (with S.L.P.No.15820 of 2011). The Hon‟ble Supreme Court did not give the relief but directed this Court to hear the case on merit and decide the case in accordance with law (Annexure-7).
7. In view of the order of Hon‟ble Supreme Court aforesaid and in consideration of the urgent need to put an Patna High Court CWJC No.9167 of 2012 (12) 11 end to the impasse caused in running the affairs of the University administration of the Magadh University, Bodh Gaya the Hon‟ble Chancellor of Universities of Bihar, in exercise of the plentitude of his powers and authority conferred upon him under the Act, appointed Dr. Arun Kumar, Acting Vice-Chancellor , B.N. Mandal University, Madhepura as Acting Vice-Chancellor, Magadh University directed to assume and hold charge temporarily of the office of the Vice-Chancellor, Magadh University, Bodh Gaya and perform all its duties in addition to his own existing duties with immediate effect until 12th August, 2011 or the date of disposal of the Letters Patent Appeal whichever is earlier but the same was extended from time to time and lastly vide memo no.BSU-13/2011-2354/GS(I) dated 13.9.2011 (Annexure-16) he was allowed to function as in-charge Vice- Chancellor of the Magadh University, Godh Gaya until further orders.
8. It appears that Dr. Arun Kumar, In-charge Vice- Chancellor in exercise of power under Sections 57(B) of the University Act, Clause 7(i) of the amended Statute vide letter no.BSU-23/2007-2187 GS (1) dated 30.6.2008 constituted a Selection Committee vide Memo No.IGen(1) 130/GIA dated Patna High Court CWJC No.9167 of 2012 (12) 12 19.7.2011 (Annexure-6) in which Vice-Chancellor of Magadh University, Bodh Gaya was the Chariman, Professor Shiv Jatan Thakur alias Sheo Jatan Thakur, English Department, Patna University, Patna was a Governors‟s nominee, R.D.D.E., Magadh Division, Gaya was Member, Governments‟ nominee, Prof. R. Pandey (Prof. R.K. Pandey), Pro Vice-Chancellor, Nilamber Pitamber University, Daltonganj, Palamau was the member, Prof. Victor Tigga, Ex. Vice Chancellor, S.K. University, Dumka was the member, Prof. Surendra Kumar Brahamchari, Ex Vice-Chancellor, K.S.D.S. University, Darbhanga was the member and Dr. Srikant Sharma, Principal, Gaya College, Gaya was the member.
9. Before the interview could have started one Pramod Kumar Sharma, Advocate, filed a Public Interest Litigation vide C.W.J.C. No. 12535 of 2011 challenging ensuing selection process and this Court vide order dated 3.8.2011 (Annexure-9) stayed the interview for the selection of 22 Principals of Magadh University, Bodh Gaya.
10. Against the stay order one Praveen Kumar filed S.L.P. No.14775 of 2011 and Hon‟ble Supreme Court vide order dated 7.9.2011 (Annexure-10) vacated the stay order Patna High Court CWJC No.9167 of 2012 (12) 13 passed by this Court. When the order of stay was vacated the Selection Committee conducted the interview from 11.10.2011 to 16.10.2011 where 200 and odd candidates were interviewed but panel of merit list was not prepared. The Selection Committee held its meeting on 11.11.2011 and decided to give marks at research paper published in reputed Journal with ISSN Code. This statement is corroborated from letter of the Registrar, Magadh University, Bodh Gaya vide Memo No. I Gen(i)/No.270/GIA dated 27.9.2011 (Annexure-
15) addressed to Dr. Vijay Shanker Rai, one of candidate mentioned that he should bring relevant papers in original as well as attested photocopies of all certificates, degrees, marks sheets, N.O.C. from the employer, experience certificate and research papers showing ISSN No. etc. in support of entries made in the application form.
11. It has been mentioned in paragraph 5 of the counter affidavit of Shiv Jatan Thakur (Respondent no.8) that Selection Committee has formally resolved criteria to assess the research papers published in the prestigious national journals with ISSN Code and the same is further corroborated from the counter affidavit filed by Raj Mukul (respondent no.9) . In paragraph 10 it has been specifically stated that Patna High Court CWJC No.9167 of 2012 (12) 14 Selection Committee has formally resolved criteria to assess the research papers published in prestigious national journals with ISSN Code.
12. S.L.P. Nos. 25973 of 2011 and 27380 of 2011 challenging the interim order dated 3.8.2011 passed by the Division Bench of this Court in C.W.J.C. No.12535 of 2011 was taken up by Hon‟ble Supreme Court and where statement was made by counsel for the parties that interview for the posts of Principals have been completed. Counsel for the respondent University made statement that merit list prepared by the Selection Committee has been forwarded to the competent authority and the same is likely to be approved very shortly. In this view of the matter, Special Leave Petitions vide S.L.P.No(s) 25973 of 2011 along with S.L.P.No. 27380 of 2011 vide order dated 21.11.2011(Annexure-11) were disposed of as infructuous and all the interlocutory applications were also disposed of as infructuous.
13. It has been stated in paragraph 33 of the writ petition that on 6.1.2012, Acting Vice-Chancellor, Magadh University, Bodh Gaya (respondent no.7) prepared a tentative merit list, obtained signature of Dr. Shree Kant Sharma, Dr. Patna High Court CWJC No.9167 of 2012 (12) 15 Raj Mukul, State Government nominee and Dr. Shiv Jatan Thakur, Governor‟s nominee. It was not signed by expert members of the Selection Committee, namely, Prof. R. Pandey, Pro Vice-Chancellor, Nilamber Pitamber University, Daltanganj, Palamu, Prof Victor Tigga Ex. Vice-Chancellor S.K. University, Dumka and Prof. Surendra Kumar Brahamchari, Ex-Vice-Chancellor of K.S.D.S. University, Darbhanga.
14. Dr. Shiv Jatan Thakur nominee of Hon‟ble Chancellor wrote a letter dated 9th January, 2012 (Annexure-18) whereby he had lodged a strong protest against the manner his signature was obtained in the combined merit list of the Principals of the Magadh University. In the said letter some harsh words have been used by Dr. Thakur making an allegation of criminal breach of trust and manipulation of combined merit list of Principals of the Magadh University through clever maneuvering over which he was made to sign under the willful concealment of fact by preying upon his total blindness. He has further stated that he was deeply shocked to discover the stark manipulation through fraudulent means when the content of the merit list was read out to him subsequently. He has further said that his signature over the Patna High Court CWJC No.9167 of 2012 (12) 16 manipulated merit list stood withdrawn on account of the clinching evidence of manipulation enumerated below in the said letter and he has given the manner and mode of manipulation of preparation of the merit list. As serious allegation has been made against the Vice-Chancellor it will be appropriate to quote certain portion of letter dated 9.1.2012 (Annexure-18):
"1. In defiance of the consensus among the members to prepare the merit list strictly in order of merit having the highest academic achievements academic career and research paper taken together to which the marks of the interview shall be added to the etent of twice the number of vacancies the manipulated merit list contains the names of (i) Dr. Rajesh Kumar, application no.204, academic performance-60, (ii) Sri Jawahar Prasad Singh, application no.106, academic performance-58,
(iii) Dr. Om Prakash Singh, application no.206, academic performance-58. They were awarded full 9 marks in their research papers without letting us to pore over their research paper published in the referred journal with ISSN code. They were fraudulently accommodate in the merit list with poor academic marks shown above at the expense of those who are credited with 70 marks and above in academic achievements.
Above all, when objected to the name of Rajesh Shukla, the sur name "Shukla" was fraudulently replaced with "Kumar" in the merit list of obfuscate the fraud.
2. You have categorically served us to exclude Sri Parween Kumar, application no.128 and Pushpendra Kumar Verma, application no.68, by reason of their being found prima-
facie guilty of criminal misappropriation of the Patna High Court CWJC No.9167 of 2012 (12) 17 public fund of their respective Colleges. To out dismay, they figure in the manipulated merit list on the basis of aggregate marks 84 awarded to each of them on the strength of the inflated marks in the research paper and interview together. They have been awarded full 9 marks in their research papers whereas they have secured far less marks well within the criteria recorded in the resolution of the selection committee dated Nov.11, 2011 to underscore the referred journal with ISSN Code. 3. It is grossly unethical of justice to enhance the aggregate marks of the chosen few for extraneous consideration by awarding the highest marks to them in interview 17 at the expense of meritorious ones with lowest marks in the interview 7 and 8. 4. I went on record to avow that the candidates with highest academic marks shall be selected in order of merit for the post of the Principal of Magadh University to which I am still committed to ensure fairness of selection purely on merit alone. 5. You therefore requested kindly to cancel the manipulated consolidated merit list immediately and hold meeting of the Selection Committee at once to prepare the merit list afresh. I make it clear that publication of result despite this demarche will eventually compel me to recommend to the Government for vigilance probe into the palpable fraud designed to favour the chosen few at the cost of meritorious ones credited with higher academic achievements. I may consider to intervene in the SLP No.26815 of the Supreme Court to pout the facts on record."
15. Similarly Dr. Raj Mukul, Regional Deputy Director, Education, Magadh Division, Gaya, nominee of the State Government vide Memo No.11 dated 10.1.2012 (Annexure-
19) also withdrew his signature from the merit list prepared Patna High Court CWJC No.9167 of 2012 (12) 18 for the appointment on the post of Principals and he has declared that the signature appended by him over the said list be treated as invalid and further said that the signature appended over the said merit list should not be treated as valid and no further action may kindly be taken on the basis of the said merit list.
16. So much so in his counter affidavit in paragraph no. 10 he pointedly mentioned the reason for withdrawal of the signature from the merit list as Selection Committee had formally resolved criteria to assess the research papers published in prestigious national journals with ISSN Code and he has made statement that the Selection Committee in its meeting dated 11th November, 2011 had resolved that author of the joint articles of the referred Journal would be awarded half marks of full point.
17. The Registrar, Magadh University, Bodh Gaya vide letter dated 17.1.2012 (Annexure-E to the counter affidavit of respondent no.10) informed to all the members of the Selection Committee that a meeting of Selection Committee for the appointment of Principals of constituent Colleges under Magadh University, Bodh Gaya will be held on 20.1.2012 at 11.00 A.M. at Magadh University Guest House Patna High Court CWJC No.9167 of 2012 (12) 19 at Patna and request was made to attend the meeting. When the State Government received the knowledge of manipulation of records and Principals were going to be appointed by illegal, improper and fraudulent manner the State Government constituted a Committee on 18.1.2012/19.1.2012 headed by I.C. Kumar, Retired I.A.S. and Ex. Vice Chancellor to enquire and report but the University Authority did not supply any document to him and later on the Government of Bihar vide letter no. 1512 dated 26.7.2012 (Annexure-B to the counter affidavit of respondent no.2) substituted the incumbent Commissioner in place of Sri I.C. Kumar to conduct the enquiry and submit the report. In view of the serious allegation, the Government vide its letter dated 12.7.2013 (Annexure-C to the counter affidavit of respondent no.2) decided to get the matter enquired into by the Vigilance Department and accordingly subject matter was referred to the Vigilance for its enquiry. This action of the Government was challenged by some of the newly appointed Principals before Hon‟ble Supreme Court by way of filing the contempt application vide Contempt Petition © 415-418 of 2013 and ultimately Hon‟ble Supreme Court dismissed the contempt application vide order dated 28.4.2014. Patna High Court CWJC No.9167 of 2012 (12) 20
18. The Registrar, Magadh University, Bodh Gaya vide its letter dated 23.1.2012 (Annexure-20) addressed to the Members of Selection Committee regarding submission of merit list prepared for approval of the Syndicate Magadh University in compliance of order dated 9.7.2011 by Hon‟ble Supreme Court passed in S.L.P. No. 11529-11531 of 2011. In the said letter it has been mentioned that the Hon‟ble Supreme court in its order dated 9.7.2011 was pleased to direct the Magadh University to complete the process of selection of Principals of the constituent Colleges within six weeks. It has been mentioned that despite repeated request through various means learned Members of the Selection Committee has not yet submitted the merit list prepared by them after conducting the interview for the reason best known to them due to which the Registrar, Magadh University was not in a position to comply the order dated 9.7.2011 and undertaking given by the University dated 21.11.2011 before Honble Supreme Court. The said letter shows that the University took cognizance of letter dated 9.1.2012 (Annexure-18) of Dr. Shiv Jatan Thakur, Governor nominee raising certain objection and had withdrawn the signature put on the merit list prepared by him. However, it was requested to Dr. Thakur to submit his merit Patna High Court CWJC No.9167 of 2012 (12) 21 list prepared by him to enable the University to comply the order of the Hon‟ble Supreme Court without prejudice to his right of withdrawal of his signature and contention and he would be free to take any course with regard to allegation made by him
19. The Registrar, Magadh University on the direction of the Vice-Chancellor vide its letter no. 32/GIA dated 24.1.2012 (Annexure-H to the counter affidavit of respondent no.10) communicated to the Members of the Selection Committee that meeting of Selection Committee for the appointment of Principals of the constituent Colleges under Magadh University, Bodh Gaya would be held on 4.2.2012 at Magadh University Guest House at Patna to consider the objections raised by Dr. Shiv Jatan Thakur, the Member of the Selection Committee in his letter dated 9.1.2012.
20. Before Members of Selection Committee would attend the meeting fixed by the University to discuss the objection raised by Dr. Shiv Jatan Thakur, the Additional Secretary to the Governor vide its letter no. BSU-22/2007-128 GS(I) dated 27.1.2012 (Annexure-R3/B) informed that Hon‟ble Chanceller after due consideration was pleased to relieve Professor Shiv Jatan Thakur, Department of English, Patna Patna High Court CWJC No.9167 of 2012 (12) 22 University from the duty as Chancellor nominee on the Selection Committee/Board of Magadh University and thereafter Dr. Shiv Jatan Tahkur vide its letter dated 28.1.2012 (Annexure-21) wrote letter to the Registrar Magadh University to supply him the manipulated merit list dated 6.1.2012. In the said letter allegation has been made committing perjury by University Officer before Hon‟ble Supreme Court in S.L.P. No.27380 of 2011.
21. I.A. No.4-6 of 2012 (Annexure-26)was filed in S.L.P. No. 11529-11531 of 2011, the said interlocutory application was prepared, affidavit was sworn and same was filed on 30.1.2012. In paragraph 13 of the interlocutory application a statement has been made by the University that upon completion of the interviews five Members of the seven Members of Selection Committee duly awarded marks during the interview but two of the Members did not provide the marks awarded by them. Since five members had provided the marks awarded by them in the interview, on the basis thereof a tentative combined merit list was prepared. Sri Victor Tigga and Shri Ramesh Pandey, two Members who had provided the marks awarded by them unfortunately did not append their signatures to the combined merit list. The aforesaid facts Patna High Court CWJC No.9167 of 2012 (12) 23 shows that two persons did not put their signature and two persons, namely, Dr. Shiv Jatan Thakur and Raj Mukul withdrew their signature from the combined tentative merit list. From paragraph 14 of the said interlocutory application it appears that the statement was made by the University before the Hon‟ble Supreme Court that the Chancellor nominee and nominee of the State Government had informed the Vice Chancellor of withdrawal of their signatures from the proposed recommendation of the Selection Committee and further stated that both of them had not provided the marks awarded by them during the interview but nonetheless signed the combined merit list. In this way it also appears that two of them put their signature but did not supply the marks to the candidates appeared in the interview.
22. Dr. V. Tigga, Member , Selection Committee wrote a letter dated 2.2.2012 (Annexure-23) to the Registrar, Magadh University informing his inability to attend the meeting scheduled to be held on 4.2.2012 on the ground that he could know from the reliable sources that an enquiry committee has been constituted by the Government of Bihar to enquire into the procedure adopted in the selection of Principals appointment under Magadh University and committee has Patna High Court CWJC No.9167 of 2012 (12) 24 started its enquiry. Further he has pointed out other complications as he has shown doubt about putting signature by Dr. Shiv Jatan Thakur or Dr. Baleshwar Paswan on the combined merit list.
23. The writ petitioners in paragraph nos. 43 and 44 pointedly stated that Members of the Selection Committee attended the meeting on 4.2.2012 in which the objection raised by Dr. Shiv Jattan Thakur was considered. In the said meeting two experts, namely, Dr. R. Pandey and Dr. Victor Tigga did not participate and letter no.32 dated 3.2.2012 of the State Government was also placed before the Selection Committee and Selection Committee formally resolved that tentative merit list would stand cancelled and accordingly the merit list prepared by the Vice Chancellor which was signed by Dr. Shiv Jatan Thakur , Raj Mukul and Dr. Shri Kant Sharma stood cancelled vide resolution of the Selection Committee on 4.2.2012 and it was decided to prepare the fresh merit list of the candidates prepared by the Selection Committee.
24. Dr. Raj Mukul, nominee of the State Government vide its letter no.142 dated 28.2.2012 (Annexure-25) has replied to the letter of the Registrar, Magadh University about Patna High Court CWJC No.9167 of 2012 (12) 25 submission of marks of interview for the post of Principals. In the said letter it has been mentioned that Dr. Shiv Jatan Thakur strongly objected to the merit list, describing it as the manipulated merit list and fraud has been perpetrated demanding its immediate cancellation through letter dated 9th January, 2012 (Annexure-18) and he has further said that the Selection Committee in its meeting held on 4.2.2012 has formally resolved that the tentative merit list shall stand cancelled and informed. It has further been stated that letter no.320 dated 3.2.2012 of the State Government was placed before the Selection Committee on 4.2.2012 whereby the Government has requested to provide the tentative merit list signed by four members of the committee and further said that the University to desist from such move as combined merit list has been prepared, based on fabrication of document and situation has been manipulated to their advantage.
25. This document shows that no panel of merit list of the Principals was prepared in between 4.2.2012 to 28.2.2012. A statement was made by the senior lawyer of the University in I.A. Nos.4-6 of S.L.P. No.11529-11531 of 2011 that the requisite number of the members of the Selection Committee have already signed the proceedings whereupon the Court Patna High Court CWJC No.9167 of 2012 (12) 26 vide order dated 2.3.2012 (Annexure-12) directed that if that be so there should be no hesitation in declaring the result of the selection and accordingly on the same day the University vide Memo No. I Gen(1)548/11/99/GIA/12 dated 2.3.2012 (Annexure-13) appointed 21 Principals of different constituent Colleges of Magadh University where it has been provided that they will undergo the period of probation for two years but on the same day another notification vide Memo No.I Gen(1)548/11/100/GIA/12 dated 2.3.2012 (Annexure-14) was issued and ten persons who were appointed as Principals of different ten Colleges were confirmed from the initial date of their appointment itself. On the same day all the persons on the day of issuance of aforesaid notification i.e. 2.3.2012 gave their joining in the University though the University in paragraph 18 of his counter has stated that the notification of appointment was published on the notice board of the University individual letters of appointment with detailed address were also sent to the appointees through post which were received by the candidates and this statement was denied by the petitioners in its rejoinder to the counter of the writ petitioners in paragraph 9 where it has been stated that result of selection was published on the notice board of the Patna High Court CWJC No.9167 of 2012 (12) 27 University and individual letters of appointment with detailed address were sent to the appointees has been said to be a wrong statement as no copy of individual letters of appointment has been sent to the newly recruited Principals and stated that all the persons selected gave their joining on 2.3.2012 itself in the University.
26. The University has filed its counter affidavit in which it has annexed the combined merit list (Annexure R3-A) of the candidates appeared in the interview. At the top of the first page in the corner of the combined merit list there is noting of the Vice-Chancellor giving the date 28.2. without disclosing the year. Learned counsel for the petitioners has pointed out that at the end there is statement that the panel shall remain valid for the period of one year from the date of approval signed by the University Selection Committee. As per the vacancy appointment shall be made from the panel within one year, subject to the approval of Syndicate. It appears that the Governor nominee Dr. Shiv Jatan Thakur and Government nominee Sri Mukul Raj, Prof. (Dr) S. K. Brhamchari, Ex. Vice Chancellor, K.S.D. Sanskrit University, Darbhanga, Prof (Dr.) Srikant Sharma, Principal, Gaya College, Gaya and Chairman, Selection Committee-cum-Vice-Chancellor, Patna High Court CWJC No.9167 of 2012 (12) 28 Magadh University, Bodh Gaya have put their signature but without any date whereas Prof.(Dr.) Victor Tigga, Ex-Vice Chancellor, S.K.M. University, Dumka, Jharkhand and Prof.(Dr.) Ramesh Pandey, Pro Vice Chancellor, N.P. University, Palamu, Jharkahnd did not sign on the combined merit list. It has been submitted that this merit list was prepared in order to comply the order of Hon‟ble Supreme Court in the contempt case which was to be listed on 2.3.2012 where statement was made by the counsel for the University that requisite number of members of Selection Committee have already signed the proceedings whereupon Hon‟ble Supreme Court directed if that be so there should be no hesitation in declaring the result of selection. He has further submitted that the aforesaid facts shows that Dr. Shiv Jatan Thakur, nominee of the Vice Chancellor vide letter dated 9.1.2012 (Annexure-18) withdrew his signature and similarly Sri Raj Mukul also withdrew his signature vide his letter dated 10.1.2012 (Annexure-19) whereas he has further submitted that both of them did not supply the marks to the University, the marks given by them in interview as well as research paper so much so Dr. Victor Tigga and R. Pandey both experts members did not put his signature and as such the Patna High Court CWJC No.9167 of 2012 (12) 29 combined merit list on the basis of which the appointment was made is completely vitiated and also stated that letter of Sri Raj Mukul dated 28.2.2012(Annexure-25) where it has been mentioned that the Selection Committee in its meeting dated 4.2.2012 had formally resolved that the tentative merit list stood cancelled.
27. In this view of the matter, no merit list was prepared in between 4.2.2012 to 28.2.2012, in what situation, in what circumstances and in what manner the appointments were made vide letters dated 2.3.2012 (Annexures-13 and 14) when panel itself was not in existence in view of the statement made by the Members of the Selection Committee.
28. Learned counsel for the petitioners has relied on Section 57 of Act and clauses, 3, 4 and 7. As per learned counsel for the petitioners the Academic Council never approved any panel of ten experts as provided under clause 7(i)(a) of the Statute which the writ petitioners in paragraph 29(ii) has stated that Prof. R. Pandey, Pro Vice-Chancellor, Nilamber Pitamber University, Daltanganj, Palamu, Prof. Victor Tigga Ex Vice-Chancellor, S.K. University, Dumka and Prof. Surendra Kumar Brahmachari, Ex. Vice Chancellor, K.S.D.S. University, Darbhanga does not figure in the Patna High Court CWJC No.9167 of 2012 (12) 30 approved list of panel of experts approved by Academic Council of the Magadh University. He has drawn the attention of this Court to paragraph 19 of the counter affidavit of University where the University gave its evasive reply to the pointed question raised in paragraph 29(ii) of the writ petition and only stated that technicalities are not sustainable specially in the light of Hon‟ble Supreme Court orders dated 7.9.2011 (Annexure-10) and order dated 21.11.2011 (Annexure-11). In paragraph 20 it has been stated that Selection Committee was constituted in accordance with the provisions of the Act and that too after approval of Academic Council of its meeting dated 5.7.2011. The petitioner has brought proceeding of meeting of Academic Council dated 5.7.2011 (Annexure-29) through supplementary reply affidavit to the counter affidavit filed by respondent nos. 3 to 5 where item no.5 states, the agenda was to approve the panel of experts for the Selection Committee but it was resolved unanimously to authorize Vice Chancellor for preparation of panel of experts for the Selection Committee for appointment of Principals/Teachers and for promotion of teachers. In this way he states that the Academic Council was required to approve ten experts and from there the Vice-Chancellor was to select the experts for Patna High Court CWJC No.9167 of 2012 (12) 31 the Selection Committee but in the present case, in the matter of appointment of Principals Academic Council delegated its power to the Vice-Chancellor to select experts and submitted that Clause 7 of the Statute does not empower the Academic Council to delegate its power of preparing the panel of ten experts to the Vice -Chancellor. He has further submitted that when the statute does not empower to delegate its power to third person in absence of the same the delegation of power by Academic Council to the Vice-Chancellor to prepare and approve the panel of expert the selection of the experts by the Vice-Chancellor of its own wisdom is violation of the statute as aforesaid. He has further submitted that in absence of power of delegation, the body which has been authorized to act, fails to perform that act but delegate the power to third party is an act, on the basis of which action taken is nonest in law. He has further submitted that when a thing has been to be done in a particular manner that thing has been done in that manner alone. In support of his contention he has relied on the judgments in the case of State of Gujrat Vs. Shanti Lal Mangal Das A.I.R. 1969 SC 634, Dr. Rai Murari Vs. Patna University and others, reported in 2011 (3) PLJR 92, paragraph nos. 8, 31 to 34, Navin Kumar Vs. The State of Patna High Court CWJC No.9167 of 2012 (12) 32 Biahr and others, reported in 2011(4) PLJR 170, paragraph nos. 9 and 10 where this Court has decided that there is no power of delegation to the Vice Chancellor to select the expert of its own wisdom and judgment reported in the case of Navin Kumar (supra) was tested in L.P.A. No.1438 of 2011 approved the judgment of the Single Judge. He has further submitted that the constitution of Selection Committee was/is bad in law, as it provides that as per the Statute senior most Principal or senior most Head of the department was to be nominated as a member of the Selection Committee but in its place junior most Principal was made member of the Selection Committee which is apparent from memo no. 489/G-I dated 8.4.1988 (Annexure-17) list of persons appointed as Principal on 8.4.1988 in which the name of Srikant Sharma does not figure whereas Sri Kant Sharma has been appointed as Principal of the constituent College in the year 1994 and specific statement has been made by the writ petitioners in paragraph 29(iii) of the writ petition. He further submits that it is in violation of clause 7(i)(b) of the Statute. He has further submitted that the University in paragraph 19 of its counter affidavit does not give answer to the pointed question raised by the petitioners but evasive answer has been Patna High Court CWJC No.9167 of 2012 (12) 33 given.
29. He further submits that Dr. Arun Kumar was holding the substantive post of Professor and discharging the duty of Acting Vice -Chancellor of B.N.Mandal university and later on he was asked to hold the post of Vice Chancellor, Magadh University as Acting Vice-Chancellor and in terms of Sections 10 read with Section 13 of the University Act. The In-charge Vice Chancellor cannot be allowed to discharged all the functions of permanent Vice Chancellor but he could have discharge only routine matter. In support of his contention he has relied on the judgment of the Hon‟ble Supreme Court in the case of Ajaib Singh V. Gurubachan Singh and others, reported in A.I.R. 1965 SC 1619, paragraph no.11 and judgment of Madhya Pradesh High Court in the case of Girja Shanker Shukla V. Sub Divisional Officer, Harda, reported in A.I.R. 1973 M.P. 104.
30. With regard to granting the marks he has submitted that the marks were to be given to the candidates in three separate heads, 71 marks was provided for career, 9 marks for research paper published in the prestigious national journal with ISNN Code and 20 marks for interview.
31. Prof. R. Pandey, respondent no. 10 and Prof. Dr. Patna High Court CWJC No.9167 of 2012 (12) 34 Victor Tigga, respondent no.13 had given the marks in interview but did not put their signature at final combined merit list whereas Dr. Shiv Jatan Thakur, respondent nos. 8 and Dr. Raj Mukul, respondent no. 9 did not give any marks in the interview, in research paper marks were not given by respondent nos. Dr. Shiv Jatan Thakur (respondent no.8), Dr. Raj Mukul (respondent no. 9), and Prof. Dr. Victor Tigga (respondent no.13). Dr. R.K. Pandey, respondent no.10 in paragraph 18 of this counter affidavit has stated that he did not give the marks in research paper he had participated in the interview of the candidates for the period 11.10.2011 to 16.10.2011 but had not gone through the records of the individual candidates with regard to their academic performance achievement and paper publication which the replying respondent has mentioned in his remarks.
32. Prof.(Dr) Victor Tigga, (respondent no.13) in paragraph 16 of his counter affidavit has stated that he has conducted interview but he had not gone through the records of the individual candidates with regard to their academic achievement and paper publication which the replying respondent has mentioned in his remarks.
33. In this view of the matter counsel for the petitioners Patna High Court CWJC No.9167 of 2012 (12) 35 submits the purported merit list is completely manipulated and fraud document, as final merit list was never prepared and any appointment made on the basis of joint merit list as Annexure R/3A is completely a fraud in law as well as would pollute the academic atmosphere of the College/University. He has further submitted that Sri Shiv Jatan Thakur vehemently opposed the manner the marks were given and threatened for initiation of criminal case against the Vice-Chancellor and later on he has withdrawn his signature. So much so the Hon‟ble Chancellor before the Selection Committee could have finally approved the select list Sri Thakur was removed as nominee of the Vice-Chancellor.
34. Dr. Shiv Jatan Thakur, respondent no8, nominee of the Hon‟ble Chancellor in Selection Committee appeared in person and placed his case by and large supported the case of the petitioners made in the writ petition. He has submitted that purported combined merit list of candidates for Principals does not bear any date below the signature of any members of the Selection Committee. He has further submitted that in terms of clause 3 and 4 of the Statute the life of the panel is for one year. In absence of the date mentioned in the combined merit list the whole selection list is vitiated on Patna High Court CWJC No.9167 of 2012 (12) 36 account of the fact that from which date one year is to be counted is completely uncertain as the purported combined merit list violates Clause 3 of the Statute. In this view of the matter, the said merit list has no legal status to be acted upon. He has further submitted that his signature appearing in the combined merit list is his forged and fabricated signature, so much so that panel violates Clause 4 of the Statute in view of non-completion of the quorum. As per Dr. Thakur‟s submission, approval of the panel by Syndicate is a condition precedent not condition subsequent, meaning thereby, after approval of panel by Syndicate only then appointment is to be affected. He has also relied on letter of the Registrar, Magadh University dated 23.1.2012 (Annexure-20) which shows that the merit list was required to be approved by the Syndicate of Magadh University and only then the appointment of Principals could have been acted upon. From the order dated 21.11.2011 (Annexure-11) passed in S.L.P. No.25973 of 2011 it appears that the statement made at Bar before Hon‟ble Supreme Court on behalf of respondent University that merit list prepared by the Selection Committee has been forwarded to the competent authority and the same is likely to be approved very shortly. In nutshell the submission is, all the Patna High Court CWJC No.9167 of 2012 (12) 37 attending facts mentioned hereinabove that approval is condition precedent for the appointment of Principals and admittedly the panel was not approved by the Syndicate which could not have been a valid piece of combined merit list which could not have been acted upon. He has also drawn the attention of this Court to Annexure R/3A the combined merit list and at top page in the corner some entries has been made in the hand writing of the Hon‟ble Chancellor and the date has been given as 28.2. without any year which runs as follows:
"Under direction of Hon‟ble Apex Court it may be noticed after obtaining direction from Hon‟ble Supreme Court narrating the circumstances."
35. The note shows that as contempt case was to be taken up, in hurry direction was given to the Registrar to act in terms of note so that order of Hon‟ble Supreme Court be complied with and the contempt petition may be rendered infructuous. He has relied on the order dated 2.3.2012 (Anneuxre-12) passed in Contempt petition No. 87-89 of 2012 where the Hon‟ble Supreme Court has passed the order on the basis of statement of lawyer for the University that requisite number of members of the Selection Committee have already Patna High Court CWJC No.9167 of 2012 (12) 38 signed the proceedings. If that be so, there should be no hesitation in declaring the result of selection. According to this respondent the statement is completely misleading, accordingly the University obtained favourable observation. He has claimed that the signature of Dr. Shiv Jatan Thakur and Mukul Raj on the combined merit list are forged and fabricated and has submitted that he has specifically stated in paragraph 3 of the supplementary counter affidavit of respondent no.8 that Registrar of Magadh University committed forgery on oath that the combined merit list was signed by Shiv Jatan Thakur with the full knowledge that his signature in Annexure R/3A is criminally forged is corroborated by distinct variation in signature appended from one page to another. He has further submitted that his specific allegation made in different paragraphs of the supplementary counter affidavit which has been served upon counsel for the University but no rejoinder disputing the claim of respondent no.8 has been made by the University. So much so Dr. Thakur wrote a letter dated 21.9.2013 (AnnexureR/8-B) to the Vice- Chancellor where he has stated that purported signature appearing in the combined merit list varies from page to page and that was perpetrated by the then Vice Chancellor in Patna High Court CWJC No.9167 of 2012 (12) 39 collusion with the Registrar. He has relied on the letter dated 9.1.2012 (Annexure-18) of the writ petition where he had lodged a strong protest against the criminal breach of trust and manipulation of the merit list of the Principals of Magadh University through clever maneuvering over which he was made to sign under the willful concealment of fact by taking advantage of total blindness and pointed out the stark manipulation through fraudulent means.
36. He has relied on letter dated 28.1.2012 (Annexure-
21). In that letter allegation of fraud has been alleged and asked to supply the manipulated merit list dated 6th January, 2012 which carries his signature along with Arun Kumar, the then Vice-Chancellor, Shrikant Sharma and Raj Mukul. According to Dr. Thakur the combined merit list was prepared on 6.1.2012 as would be apparent from letter dated 10.11.2013(Annexure-R/8-C to the supplementary counter affidavit of respondent no.8) as item no.I where Vigilance has directed for production of combined merit list dated 6.1.2012 on the complaint made by Dr. Thakur where it is stated that merit list bears the signature of Dr. Thakur, Raj Mukul, Srikant Sharma and Arun Kumar, the then Acting Vice- Chancellor whereupon the reply was given in the file of the Patna High Court CWJC No.9167 of 2012 (12) 40 University no such merit list dated 6.1.2012 was available in the record of the University. It is further submitted that a meeting was called by the Vice-Chancellor on 15.1.2012 of the Member of the Selection Committee but proceeding of the said meeting has not been brought with a view to suppressing the material fact from this Court. He has drawn the attention of this Court to question no.12 which deals with the manner the marks were given during the interview as Dr. Jawahar Singh, Dr. Om Prakash Singh and Rajesh Kumar were wrongly given the marks in the interview which was objected by Dr. Thakur. He has further submitted that he has withdrawn his signature on the ground that those persons having a poor performance in academic career were granted higher marks in the interview whereas those who were excelled in the academic career were granted poor marks with a view to accommodate candidates selected. He has given example the manner manipulated has been affected in the merit list contains the name of Dr. Rajesh Kumar, application no.204, academic performance 60, Sri Jawahar Prasad Singh, application no.106, academic performance 58, Dr. Om Prakash Singh, application no.206, academic performance 58. They were awarded full 9 marks in their research papers Patna High Court CWJC No.9167 of 2012 (12) 41 without letting the members of the Selection Committee know whether their research paper have been published in the prestigious national journals with ISSN Code and they were fraudulently accommodated in the merit list with poor academic career. So much so favouritism was perpetrated as accommodate all the three persons were awarded 16, 17 and 17 marks out of 20 marks respectively in the interview. The basic idea was to accommodate them by maneuvering as like Dr. Maheshwar Prasad Trivedi, application no.88, sl.no.14 has 67 marks in academic was granted 7 marks in the interview with a sole motive to keep him away from the combined merit list of selected candidate. He has further submitted that in case of Parween Kumar and Pushpendra Kumar Verma they were given full marks in the research papers wrongly as both have joint paper publication, and as such they would be entitled to ½ of full marks in terms of principle decided in granting marks. It has further been submitted they were granted 9 marks in research paper wrongly as they would have secured lower marks. Dr. Thakur in paragraph 5 of his counter affidavit has stated that it was further resolved that author of the joint articles of the referred journal would be awarded ½ marks of the full marks as per resolution was adopted in the Patna High Court CWJC No.9167 of 2012 (12) 42 meeting of the Selection Committee on 11.11.2011 and respondent in his letter dated 7.1.2012 (Annexure-12) strongly protested against manipulation of record and this letter was forwarded to the Hon‟ble Chancellor of the University as well as to Hon‟ble Minister of Education Department, Government of Bihar simultaneously. The Government of Bihar took cognizance and appointed an enquiry committee headed by Sri I.C. Kumar and first date for the enquiry was fixed on 28.1.2012. He has further submitted that the Registrar with an ulterior motive to show that respondent no.8 made a wrong statement about the submission of merit list, as all the merit list used to be prepared at the end of the interview on each date and wrongly vide letter dated 23.1.2012 (Annexure-20) the Registrar asked respondent no.8 to supply the merit list otherwise he would have to face the consequences before Hon‟ble Supreme Court in contempt matter. He has also drawn the attention of this Court to letter dated 24.1.2012 (Annexure-22) letter of the Registrar addressed to all the members of the Selection Committee whereby it was informed that a meeting of Selection Committee would held on 4.2.20012 but Dr. Thakur was removed from the panel of Selection Committee Patna High Court CWJC No.9167 of 2012 (12) 43 by Hon‟ble Chancellor vide letter dated 27.1.2012 (Annexure R3/B to the counter affidavit of respondent nos. 3 to 5) with the only motive that respondent no.8 may not resist merit list vigorously and to obviate the situation this action was taken from the side of the Hon‟ble Chancellor. He has further submitted that after withdrawal of the signature from the consolidated merit list the University cannot use his signature and produce the combined merit list either before Hon‟ble Supreme Court or before this Court for testing their action. He has further submitted that from the averment made in the interlocutory application before Hon‟ble Supreme Court in paragraph 22 shows that tentative combined merit list was prepared not final merit list and as such after withdrawal of his signature, the combined merit list lost its efficacy and has rendered infructuous. He has further submitted that the meaning of tentative as per Kurzweil Dictionary "not fully worked out, concluded or agreed on provisional tentative plant." This means the said merit list never became a final on withdrawal of the signature. The purported merit list claiming to be the final has completely vitiated as it was never made final as all through remained tentative.
37. Respondent no.9 Dr. Raj Mukul has adopted the Patna High Court CWJC No.9167 of 2012 (12) 44 argument of Dr. Thakur and has not made any additional submission in support of statement what he has made in his counter affidavit.
38. An argument has been made on behalf of one Dr Praveen Kumar who is petitioner of C.W.J.C. No.15854 of 2012 has submitted that the judgments relied upon by the learned counsel for the petitioner i.e judgments: (i) Girija Shankar Shukla (supra), Dr. Rai Murari (supra), paragraph nos. 8, 31 to 34, Navin Kumar (supra), paragraph nos. 9 and 10 and the order passed in the case fof Navin Kumar (supra) has been affirmed in L.P.A. No.1438 of 2011 decided on 4.4.2013 approved the order of the learned Single Judge are not applicable to the present case. Further submitted that the ground of challenge is that under the Statute in Clause 7 of the Statute (Annexure-3 to C.W.J.C.No.9167 of 2012) that the Vice-Chancellor would nominate three experts in the Selection Committee from the panel of not less than ten experts approved by the Academic Council. The basic point that has been raised with regard to power of delegation by the Academic Council to the Vice Chancellor not the constitution, the result of the Selection Committee can be saved on principle of de facto doctrine as has been held by the Hon‟ble Patna High Court CWJC No.9167 of 2012 (12) 45 Supreme Court in the case of Gokaraju Rangraju V. State of Andhra Pradesh, reported in 1981(3) SCC 132, paragraph nos. 4, 17 and 18 where one Ramganga was appointed as a Judge, later on it was held that his appointment was completely not sustainable. The question arose the status of his judgment. The Court in that case held that as the parties have not challenged the appointment of a Judge he cannot challenge the judgment delivered by him. Importing ground from that judgment, that learned counsel for Praveen Kumar submits that in this case there is no challenge of the constitution of the Selection Committee but challenge has been made of appointment of the Principals and as such the petitioner cannot challenge collaterally the constitution of the Selection Committee as they were required to challenge the constitution directly and as such action taken by the Selection Committee in appointing/recommending and its action cannot be challenged and it will be saved on the principle of de facto doctrine. He has given reply to the argument of petitioner that Arun Kumar was appointed as In-charge Vice-Chancellor he could not have discharged the regular function of Vice- Chancellor is not sustainable and judgment of Madhya Pradesh High Court relied upon in his favour Court will not Patna High Court CWJC No.9167 of 2012 (12) 46 come in its assistance. As in section 13 of the Act the word has been used that in case of vacancy of Vice Chancellor ......... Chancellor on the basis of information ..... any other source make such arrangement for the purpose of duties of the function of the regular Vice-Chancellor. It is submitted that such arrangement words found in the section itself suggest that he has every power to discharge the function of the Vice- Chancellor. It is wrong to say that only person who has been appointed on substantive basis would have jurisdiction to discharge all functions only rather the fact is he was completely authorized to perform all duties of regular Vice- Chancellor. It is submitted that in case of Girija Shanker Shukla (supra) the person was dismissed from service by the D.I.G., the Court has held that he did not have a jurisdiction to pass such an order reason that was shown to have held the post of D.I.G. was not holding the post of I.G. But learned counsel did not give reply that in the present case also Arun Kumar was substantially appointed teacher but was asked to perform the duties of the office of the Vice-Chancellor on temporary basis. Mr. Abhay Kumar Singh, Sr. Advocate has supported the argument of the University relied on the judgment reported in the case of Graphite India Ltd. V. Patna High Court CWJC No.9167 of 2012 (12) 47 Durgapur Projects Ltd., reported in (1999)7 SCC 645 paragraph no.17 on the proposition that the Hon‟ble Supreme Court has distinguished the meaning of approval and permission, in the case of approval action is required subsequently by the party authorized, in that circumstances the action taken cannot be visited with any infirmity.
39. Learned counsel for the State has drawn the attention of this Court to the order dated 10.5.2012 whereby this Court in view of the statement made in paragraph 37 of the writ petition directed the State to file a counter affidavit to the petition in which they have specifically disclosed as to what progress has been done by the Committee in the enquiry.
40. In this case the State has filed two supplementary counter affidavits. In paragraph 8 of the counter affidavit it has been stated that the appointment for the post of Principals in Magadh University was also raised and discussed in the floor of the Legislative Assembly. Considering the feeling members of the Assembly the Hon‟ble Minister, Education Department vide order dated 29.3.2012 decided to enquire the matter by the Commissioner, Magadh Division and directed for preparing the term of reference for enquiry. Accordingly a reference was prepared by the department vide memo no.1512 Patna High Court CWJC No.9167 of 2012 (12) 48 dated 26.7.2012 (Annexure-B to the counter affidavit) the Divisional Commissioner, Gaya Division was requested to conduct the enquiry and submit a report. But before that it appears that three man Committee was constituted headed by Sri I.C. Kumar to examine the allegation made by Prof. Shiv Jatan Thakur. In the counter affidavit, it has been mentioned that looking to the seriousness of the allegation in the appointment on the post of Principals the Education Department decided to get the matter enquiry into and investigated by the Vigilance Department and in furtherance thereof Education Department vide letter no.1288 dated 12.7.2013 (Annexure-C to the counter affidavit of Respondent no.2) requested the Vigilance to conduct investigation and submit the report.
41. In the second supplementary counter affidavit in paragraph 13 it has been stated that in fresh selection process too there was large scale of manipulation in preparation of merit list and was afflicted by corruption in a big way. In subsequent paragraph it has been stated that a Committee was constituted under the Chairmanship of Sri I.C. Kumar, retired IAS. In paragraph 16 it has been mentioned that on 23.1.2012, the Registrar of the concerned University sent letters to all Patna High Court CWJC No.9167 of 2012 (12) 49 members of Selection Committee to send the merit list prepared by them so that final merit list may be prepared. In paragraph no.18 it has been stated that on 24.1.2012 the Registrar on the order of the Acting Vice- Chancellor called upon all the members of the Selection Committee for meeting on 4.2.2012 which would examine the objection raised by Prof. Thakur whereupon Prof. Victor Tigga informed the Registrar that the matter is being enquired by the Enquiry Committee constituted by the State Government and during enquiry it is not proper to finalize the merit list and Prof. Shiv Jatan Thakur kept on writing letters highlighting manipulating in the selection and highlighted the malpractice of Prof. Arun Kumar in the preparation of merit list. He has submitted that some of the persons challenged the enquiry of Vigilance by way of filing contempt application vide Contempt Petition © No.415-418 of 2013 before Hon‟ble Supreme Court and Hon‟ble Supreme Court disposed of the contempt petition vide order dated 28.4.2014 refused to interfere with the enquiry being conducted by the Vigilance. He has further submitted that the matter is before the Vigilance and he can not give exact status of the investigation which can only be given by Vigilance Department. Patna High Court CWJC No.9167 of 2012 (12) 50
42. Mr. Abhinav Srivastava, learned counsel for respondent nos. 19, 26, 27 and 31 submits that the aforesaid private respondents have not chosen to file any counter affidavit but has argued on the basis of the material available on record. Firstly he has raised that writ petition is not maintainable as petitioners in the present form could not have made out what prejudice has been caused, as no where in the writ petition any prejudice has been shown to have been perpetrated on them. He has further submitted that statements made in paragraph nos. 47 and 48 of the writ petition in which allegation has been made of connivance and collusion that may not be looked into by this Court under judicial review as the matter is related to the Hon‟ble Supreme Court for that they ought to have moved before the Supreme Court bringing to the notice of the Hon‟ble Supreme Court that the University authorities have misled the Court and obtained the order for appointment of the Principals. Further he has raised that the Court has approved and allowed the result to be published vide its order dated 2.3.2012 passed in Contempt Petition No.87-89 of 2012 (Annexure-12) it should be treated that it has reached to its finality now it cannot be reopened. He has relied on the order of this Court dated 3.8.2011 passed in Patna High Court CWJC No.9167 of 2012 (12) 51 C.W.J.C. No. 12535 of 2011 (Annexure-9) in which by filing writ petition in Public Interest Litigation raised issue of functioning of Acting Vice-Chancellor as a regular Vice- Chancellor plea was taken that he being an Acting Vice- Chancellor cannot perform the duties and functions of regular Vice-Chancellor as provided under Section 10 of the Act, as Section 13 of the University Act does not prohibit the Acting Vice-Chancellor would not perform full-fledged body of the Vice-Chancellor. This Court has stayed the interview conducted under the order of Acting Vice-Chancellor for the selection of 22 Principals and the aforesaid order was challenged before Hon‟ble Supreme Court vide S.L.P. 14775 of 2011 (Annexure-10) where the Hon‟ble Supreme Court has held as follows:
"We are prima facie satisfied that the Division Bench of the High Court committed serious error in entertaining a writ petition filed by way of public interest litigation questioning the process of selection for appointment of the Principals of 22 constituent colleges of Magadh University and passed an unusual interim order stating the interviews being conducted ignoring that the selection was being held pursuant to the directions given by this Court in SLP © Nos. 11529-11531 of 2011 "Om Prakash Singh and others versus Bimal Prasad Singh and others."
Issue notice, returnable in eight weeks, on the special leave petition. Dasti, in addition is permitted. Issue notice on the prayer for interim relief as well. Dasti, in addition, is permitted. Patna High Court CWJC No.9167 of 2012 (12) 52
In the meanwhile, operation of order dated 3.8.2011 passed by the Division bench of the High Court in C.W.J.C. No.12535 of 2011 shall remain stayed.
This would necessarily mean that the process of selection which was initiated pursuant to the direction given by this Court in SLP © Nos. 11529-11531 of 2011 "Om Prakash Singh and others versus Bimal Prasad Singh and others"
shall continue. The selection must be completed within a period of six weeks from the date of receipt of copy of this order.
We further direct that till the finalization of selection, the petitioners in SLP© Nos. 11529- 11531 of 2011 shall be allowed to continue in their present position.
The Registry is directed to communicate this order to the Registrar, Madagh University, Bodh Gaya, Bihar by fax."
43. He has put emphasis that the Court has allowed the selection process to be proceeded in view of the order passed in the case of Om Prakash Singh and others Vs. Bimal Prasad Singh and others. As there is an approval from the Hon‟ble Supreme Court to proceed with the selection process it will be presumed that Hon‟ble Supreme Court allowed the Acting Vice-Chancellor to perform all duties of Vice-Chancellor without any exception. As the Selection Committee has been constituted at his behest neither the Selection Committee will vitiate nor the selection made by Selection Committee will be held to be bad. He has further submitted that Section 13 of the Act does not confer any rider which prohibits the Acting Patna High Court CWJC No.9167 of 2012 (12) 53 Vice-Chancellor to confine its functioning only on routine matter but has all right and duties to perform every function as has been conferred to the regular Vice-Chancellor. He has further submitted that the marks awarded by the member of the Selection Committee even it was tentative cannot be allowed to be altered and no member has jurisdiction to withdraw his/her signature or even withdrawal of signature will not any way effect the sanctity and validity of the marks given by the member of the Selection Committee. He has further submitted, the moment marks was given by the member of the Selection Committee, to the extent of granting marks he/she becomes functus officio and the marks given would be treated final. He has relied on definition of functus officio in page 682 in Black Dictionary and page 1947 from P. Ramanath Aiyar. Further he has submitted that allegation made against Satish Singh Chandra respondent no.27 and others are uncorroborated, vague and in contradistinction of actual state of affair as Satish Chandra (Respondent no.27) a candidate for E.B.C. category, has been awarded 9 marks out of 20 marks in interview. Allegation has been made that higher marks has been given to those person who have not done fair in academic career in order to accommodate them Patna High Court CWJC No.9167 of 2012 (12) 54 has granted higher marks in the interview which has been stated in paragraph 51 of the writ petition. The allegation of given higher marks in interview malafidely is based on no material, mere it is a vague assertion without any basis, further submitted, in the writ jurisdiction this Court will not examine the manner assessment was done and the manner the marks was given. The marks was given on the basis of performance before the Interview Board which cannot be the subject matter of judicial scrutiny and the ground that has been raised by the petitioner is not sustainable and the writ petition is liable to be dismissed.
44. On 8.5.2014 the University has filed certain documents which have been marked as Annexure S series. Mr. Kanth, learned counsel for the University submits that there is no provision in whole of the Act and Statute providing which agency will prepare the panel of expert. He further submits that earlier the Bihar Public Service Commission was authorized to select the Teachers/Principals of constituent Colleges and thereafter the Act was amended, the duty for selection and recommendation was conferred to Bihar State University Constituent Colleges Service Commission and subsequently by the amendment Act of 2007 legislative Patna High Court CWJC No.9167 of 2012 (12) 55 mandate has provided the body of expert would select the competent Teachers including the Principals in the manner provided under Section 57 of the Act. As per Section 57 of the Act appointment to the post of teachers and Principals of constituent Colleges shall be made by the University on the recommendations of the Selection Committee consisting of following members: (1) The Vice-Chancellor of the University concerned (2)one member to be nominated by the Chancellor (3) One member to be nominated by the Government (4) Three experts not connected with the University to be nominated by the Vice-Chancellor from a panel of not less than ten names approved by the Academic Council for each post, out of which at least one member should belong to scheduled caste/scheduled tribes and two shall be from outside the State. (5) The head of the department of the discipline concerned. He has put emphasis to sub- section 57(4) of the University Act where it has been provided that three expert not connected with the University to be nominated by the Vice Chancellor from the panel of not less than ten names be approved by the Academic Council for each post out of which at best one member should belong to scheduled caste/scheduled tribes and two shall be from Patna High Court CWJC No.9167 of 2012 (12) 56 outside the State. The power has been conferred to the Academic Council is of approval. He has put emphasis to sub- section(4) of Section 57 of the University Act where it has been provided that three expert not connected with the University to be nominated by the Vice-Chancellor from the panel of not less than ten names be approved by Academic Council for each post. The power has been conferred to Academic Council is of approval.
45. There is nothing in Section 57(4) of the University Act which provides that the Academic Council will prepare and approve but rather it has to be prepared by the third agency and the same has to be approved by the Academic Council. He has taken strength of this argument by placing reliance on Clause 7 of the Statute dated 30.6.2008 (Annexure-3) where the word has been used the three experts in the Selection Committee will be nominated by the Vice-Chancellor from a panel of not less than 10(ten) experts approved by the Academic Council. He has further submitted that on reading of those sections it is very much clear that preparation is not to be done by the Academic Council but he has agreed that the Vice-Chancellor would nominate the experts only after approval of the list of experts by the Academic Council not Patna High Court CWJC No.9167 of 2012 (12) 57 otherwise. He has placed reliance on Section 10(5) of the Act from where he has derived his argument that the Vice- Chancellor is the principal executive as well as chief academic officer of the University and he submitted that Vice- Chancellor to be treated as Chief Academician knowing every persons who will be the best suited to be nominated as experts and also placed reliance on Section 22 of the Act which deals with the syndicate and its members. He has further submitted that Vice-Chancellor is also a member of the syndicate which is the apex body of the University. Section 24 deals with Academic Council and section 25 of the Act provides the power and function of the Academic Council. He has relied on the proceeding of the Academic Council dated 5.7.2011 Annexure S/1 (supplementary counter affidavit of University)= Annexure 29 to the writ petition and placed reliance on agenda no.5 of which deals with the approval of panel of experts for the Selection Committee. Resolved unanimously to authorize the Vice-Chancellor for preparation of panel of experts for the Selection Committee for appointment of Principals/Teachers and for promotion of teachers. He has further submitted that authorization was given for preparation of panel not for approval of panel. He Patna High Court CWJC No.9167 of 2012 (12) 58 has further placed reliance on Annexure S/2 of supplementary counter affidavit of university submits that as he is the Chief Academician he knows every persons who will be best suited to the Selection Committee, prepared the panel of experts of 11 persons for Selection Committee for the appointment on same day simultaneously which bears the signature of Vice- Chancellor. He has drawn the attention of this Court to Annexure-S/4 which is proceeding of the Academic Council dated 13.11.2011, agenda no. I confirmed the proceeding of Academic Council dated 5.7.2011. He has also placed reliance on Annexure-S/5 to supplementary counter affidavit of University whereby Registrar, vide letter dated 18.7.2011 requested Vice-Chancellor to nominate three external and one internal expert, accordingly nominated experts. The letter shows that the list of expert prepared by the Vice-Chancellor was approved by the Academic Council in its meeting dated 5.7.2011. So the letter of Registrar dated 8.7.2011 shows the panel of expert was placed before the Academic Council for its approval. He has also placed reliance on Annexure-S/3 to the supplementary counter affidavit of the University which is proceeding of the Syndicate dated 7.7.2011 shows the Syndicate apex body of the University approved the Patna High Court CWJC No.9167 of 2012 (12) 59 proceeding of the Academic Council dated 5.7.2011. He has submitted that preparation of panel of expert, its approval by Academic Council and nomination of experts by the Vice- Chancellor were done in one transaction, the allegation of abdication or delegation of power by Academic Council to Vice-Chancellor does not arise. As per the Statute Vice- Chancellor has prepared, Academic Council has approved and then Vice-Chancellor nominated three experts out of approved panel of the Academic Council. In this view of the matter, it will be presumed that the list prepared by the Vice-Chancellor was placed before the Academic Council and approved by the Academic Council. If any official act has been done it will be presumed under section 114© of the evidence Act that has been done properly and legally and that too in a situation the highest academic body of the University has approved the proceeding of Academic Counsel dated 5.7.2011.
46. Learned counsel for the University submits that the person who is appointed as a Principal has to discharge twin duty, one as a teacher and second as an administrator as like the Vice-Chancellor, who is highest executive person of the University as well as Chief Academician. He has further submitted that the constitution of selection body cannot be Patna High Court CWJC No.9167 of 2012 (12) 60 questioned as the constitution of the academic body was under
judicial review before this Court in Public Interest Litigation which was filed by one Pramod Kumar Sharma a practicing Advocate of this Court vide C.W.J.C. No.12535 of 2011 (Annexure-9), the ground of challenge was Shri Arun Kumar, Acting Vice-Chancellor has no jurisdiction and authority to preside over the Selection Committee. Claim has been made that Dr. Arun Kumar is persona non grata and this Court vide order dated 3.8.2011 stayed the interview was being conducted under the order and Chairmanship of Dr. Arun Kumar, Acting Vice-Chancellor of Magadh University for selection of the Principals of 22 Colleges of Magadh University which was scheduled to commence from 3.8.2011 at 9 A.M. till further orders of this Court. Against the order of stay one Praveen Kumar filed S.L.P. No.14775 of 2011 (Praveen Kumar Vs. Pramod Kumar Sharma and others) the Hon‟ble Supreme Court had an occasion to examine the constitution of Selection Committee and after going through the record passed the order that the Court was satisfied that Division Bench of the High Court committed serious error in entertaining a writ petition filed by way of Public Interest Litigation questioning the process of selection for Patna High Court CWJC No.9167 of 2012 (12) 61 appointment of the Principals of 22 constituent Colleges of Magadh University and the Court further directed that the process of selection which was initiated pursuant to the direction given by this Court in S.L.P. No. 11529-11531 of 2011 (Om Prakash Singh & others Vs. Bimal Prasad Singh and others) would continue, selection process must be completed within a period of six weeks from the date of receipt of a copy of this order. Before Hon‟ble Supreme Court, one of the subject matter was conducting the interview by the Selection Committee headed by Dr. Arun Kumar, Acting Vice-Chancellor and the Hon‟ble Supreme Court after application of mind allowed the interview to continue by the Selection Committee. In this back ground the petitioners cannot be allowed to raise the issue of wrong constitution of Selection Committee. The order of Hon‟ble Supreme Court finally settled and sealed the issue of constitution of selection Committee which will be deemed to have been approved and in view of approval by the Hon‟ble Supreme Court this Court should not entertain and examine the correctness of the constitution of the Selection Committee. The lawyer of the University has submitted that after the direction of the Hon‟ble Supreme Court the interview was conducted on and Patna High Court CWJC No.9167 of 2012 (12) 62 from 11.10.2011 till 16.10.2011, on each day. He has further relied on Annexure S/8 of the University supplementary counter affidavit, shows the reason for the appointment of Srikant Sharma as one of the expert of Selection Committee.
The aforesaid noted sheet shows why the Registrar had given proposal for the appointment of Srikant Sharma as one of the expert which was accepted by the Vice-Chancellor, the reason has been shown, Dr. S.N. Singh, is the senior most Principal but charges from Raj Bhawan were pending against him. Prof. Asha Singh has taken leave to go outside. Dr. Haridwar Singh had shown his inability to participate in the Selection Committee meeting due to his pre-occupied engagement in NAAC team and next senior Principal was Dr. Shri Kant Sharma who gave his consent for being expert member of the Selection Committee. The contention of the petitioners that the senior most Principal were over looked and Shri Kant Sharma was purposely appointed is not correct requires out right rejection. After that vide Annexure S/6 final notification dated 19.7.2011 was published for constitution of Selection Committee which was challenged in Public Interest Litigation as has been explained, the Hon‟ble Supreme Court has directed to proceed with the interview. He has relied on Patna High Court CWJC No.9167 of 2012 (12) 63 proceeding/minutes of Selection Committee (Annexure-S/9 series) with respect to appointment of the Principal. He has further submitted that first interview was conducted on 11.10.2011 on that date Dr. Shiv Jatan Thakur, Chancellor nominee and Raj Mukul, Government nominee and all others were present. All the members of Selection Committee were present on 11.10.2001 to 14.10.2011, on 15.10.201 Dr. Thakur was absent but rest experts were present. On 16.10.2011 Dr. Thakur and Dr. Raj Mukul were absent and rests were present. It has further been submitted whole proceeding of interview was video graphed eliminate the possibility of wrong doing. Magadh University very scrupulously followed the order of the Hon‟ble Supreme Court, process of selection was completed, only formality was left to publish the result of selected candidates. As the experts were not co-operating, the University was feeling helpless, at the same time the selection was to be completed within the prescribed period as was directed by Hon‟ble Supreme Court.
The contempt petition which was filed by Om Prakash Singh and others Vs. Bimal Pasad Singh and others in S.L.P. No.11529-11531 of 2011, in I.A. No.4-6 of 2012 (Annexure-
26) was filed by the University in paragraph 14 explained the Patna High Court CWJC No.9167 of 2012 (12) 64 manner the interview was conducted and also informed that although five members had participated in the interview, but two did not provide marks of interview nonetheless signed the merit list and two members provided marks but not sign. In paragraph no.16 of the said I.A, University has said, though five members signed the combined merit list but two of them out of five has withdrawn their signature from the combined merit list, has not been notified so far. Considering the urgency of the matter selection was to be completed to comply the direction of Hon‟ble Supreme Court the Vice- Chancellor and Registrar of the University have repeatedly requested the members of the Selection Committee to do needful so that the combine merit list was notified by the University for completion of the selection process, not orally but even by writing request letter to the members. The Government nominee sent a letter seeking withdrawal of the signature from recommendation, the Government had directed to enquire into the matter although the Government has no jurisdiction to hold the enquiry under the Statute and enquiry was conducted in which University fully cooperated, eventually in enquiry it was found nothing. Thereafter the Governor Secretariat vide letter dated 27.1.2012 (Annexure Patna High Court CWJC No.9167 of 2012 (12) 65 R3-B) on the direction of the Hon‟ble Chancellor withdrew Dr. Shiv Jatan Thakur as nominee of the Chancellor from the Selection Committee and replaced by Prof. Baleshwar Paswan. It has been stated in paragraph 22 that a tentative combined merit list has been prepared but it has not been notified on account of the fact mentioned hereinabove which are beyond the control of the University and sought permission to declare and notify the merit list or the Hon‟ble Court may consider directing the fresh selection exercise to be undertaken by the Selection Committee within a fixed time frame. Learned counsel for the University has further submitted that statement made in interlocutory application (Annexure-26) was considered by passed the order for declaration of the result of selected candidates. Accordingly the University has notified the names of selected Principals as aforesaid. In this back ground the submission has been made, the University on the direction of the Hon‟ble Supreme Court has acted, now it cannot be the subject matter of the judicial review, reopening and making a roving enquiry into the matter of the constitution of Selection Committee and the manner the selection was conducted. He has further submitted, the marks was granted on educational achievement Patna High Court CWJC No.9167 of 2012 (12) 66 on the principle already decided, so far marks which was to be granted on research paper, published, in the prestigious national journal with ISSN Code was the basis of granting the marks. There can only be disputed with regard to granting the marks in the interview. In this view of the matter, this Court may refuse to allow the prayer of these petitioners to reopen the process of selection.
47. Learned counsel for the University has submitted that in view of the order dated 2.3.2012 (Annexure-12) passed by the Hon‟ble Supreme Court whereby the Hon‟ble Supreme Court has given direction to go a head for declaration of result. It will be presumed that juridical scrutiny was conducted and action of the University was approved and gave a final seal and as such no Court should again enter into that area and find out error in the manner of selection was done. He has further submitted that the proceeding of the Academic Council i.e. dated 5.7.2011 vide agenda no.5 authorized the Vice Chancellor to prepare the list of expert and on the same day in the same transaction panel of 11 experts were prepared for Selection Committee and after two days the syndicate affirmed the proceeding of the Academic Council vide agenda no.2 and on that basis the Registrar vide Patna High Court CWJC No.9167 of 2012 (12) 67 its letter dated 18.7.2011 (Annexure S/5) requested the Vice- Chancellor to nominate three experts from the panel prepared by him whereupon the Vice-Chancellor nominated experts from the said list and the Academic Council in its meeting dated 13.11.2011 (Annexure S/4) approved and confirmed the proceeding of the Academic Council dated 5.7.2011 in agenda no.1. He has further submitted that there is no provision in the University Act and Statute for prior approval of list of experts and in this situation if the agenda of the Academic Council is approved, later on the issue of infirmity can not be raised in the matter of nominating or electing the expert in terms of Section 57 of the Act and Clause 7 of the Statute . Learned counsel for the University has submitted that judgment reported in the case of Dr. Sheela Rani Sinha Vs. The Hon'ble Chancellor and others, reported in 2011 (4) PLJR 178 is not applicable to the facts as that was decided in its peculiar facts and circumstance where the Court arrived to the finding that the names which were called from the department was never placed before the Academic Council for its approval and in the present case, the facts are quite different and not applicable and also submitted that other judgments cited by the petitioners are not applicable to the Patna High Court CWJC No.9167 of 2012 (12) 68 facts of this case. He has further submitted that there is no infirmity in the manner of selection of experts as provided in the Act or Statute framed therein and it is further submitted that the Court should be loath in giving undue liberty to generate unnecessary litigation that too on certain epsi dixit ground without any substance.
48. Learned counsel for respondent nos. 21 and 22 has submitted that the statements made in paragraph 51 of the writ petition with respect to Raj Kumar Majumdar (respondent no.
21) and Dr. Ganesh Mahto (respondent no.22) have been appointed under the extremely backward category, their names stands at sl.no.6 and 7 respectively whereas petitioner no.5, Dr. Arjun Sharma candidate of extremely backward category, challenging marks obtained by them. Raj Kumar Majumdar has better academic performance as he has secured 57 marks whereas Dr. Ganesh Mahto has obtained 58 marks, in research paper both of them have equal marks of 9 whereas in the interview Raj Kumar Majumdar has obtained 13 marks whereas Dr. Ganesh Mahto has obtained 12 marks and he pointed out that Dr. Arjun Sharma has secured 55 academic performance in research paper 6 and interview he has obtained 13 in total marks 74. He has submitted that the Patna High Court CWJC No.9167 of 2012 (12) 69 statements made in paragraph 51 where it has been stated that petitioner no.5 has obtained 57 marks which is against to the record, submitted the selection of these two respondents, namely, Raj Kumar Majumdar (respondent no.21) and Ganesh Mahto (respondent no.22) cannot be faulted.
49. Learned counsel for respondent nos.21 and 22 further argued that the marks that has been given in the interview cannot be said to arbitrary is always dependent on performance in the interview, the assessment is based upon academic knowledge as well as administrative skill, as the selection to the post of the Principal requires that person must have academic knowledge as well as administrative capacity to run the College. He has further submitted that in research paper marks have been given on the basis of publication of research paper in the reputed journal with ISSN Code and that cannot be said that Selection Committee has given wrong marks. He has further submitted that one Shiv Jatan Thakur, member of the Selection Committee once he has signed the combined merit list it will be presumed that in full knowledge and in conscious state of mind has signed combined merit list. It will be presumed that every thing was done legally and properly and as there is no provision for withdrawal of Patna High Court CWJC No.9167 of 2012 (12) 70 signature under the Act and as such his action of withdrawal of signature is not sustainable. He has further submitted that the plea that has been taken that signature was obtained in fraudulent manner is belied from paragraph 24 of the counter affidavit filed by respondent nos. 3 to 5 from where it appears that he was given one assistant of his own choice. In letter dated 9.1.2012 (Annexure 18) the ground for withdrawal has been shown that Rajesh Sukla has been substituted by Rajesh Kumar in the final merit list is completely incorrect statement as the name of Rajesh Sukla is standing in the sl.no.5 of the merit list. He has further submitted that petitioner in paragraph 47 has submitted that respondent has mislead the Hon‟ble Supreme Court obtained the order of result for publication cannot be looked into by this Court and in that circumstance they should approach the Hon‟ble Supreme Court, should have brought to the notice of the Hon‟ble Supreme Court the manner respondent University obtained the order of publication of the result. He has further submitted, on the facts and circumstance the writ petition is fit to be rejected.
50. Learned counsel for respondent nos. 16, 17 and 20 has submitted that there is no difference between the acting Vice- Patna High Court CWJC No.9167 of 2012 (12) 71 Chancellor and the full-fledged Vice-Chancellor. The Act does not define the Acting Vice-Chancellor though Section 13 of the Act provides certain exigency, the Acting Vice- Chancellor will be appointed and submitted that the acting Vice-Chancellor has all the power and would perform all duties which has been conferred to the regular Vice- Chancellor. It cannot be said that the Acting Vice-Chancellor has only right to perform the routine duty. Section 13 of the Act will operate in the same field and in same plenitude of Section 10 of the Act as the University Act does not provide Section 13 will operate in different field. Section 13 of the Act, as would apparent, does not place any rider showing the curtailment of the power of Acting Vice-Chancellor. The Hon‟ble Supreme Court after examining power and function Acting Vice-Chancellor under the provision of section 13 of the Act refused to interfere in the matter of selection of Principal, as the Hon‟ble Supreme Court was of the view that there is no curtailment of power of acting Vice-Chancellor in comparison to regular Vice-Chancellor Acting Vice- Chancellor was fully competent to preside over the meeting of the Academic Council, prepare the name of experts and nominate expert from the panel and being a Chairman of the Patna High Court CWJC No.9167 of 2012 (12) 72 selection Committee he has done his job which has been provided under the Act relied on the judgment in the case of Dr. Ram Tawakya Singh V. State of Bihar & others, reported in 2013 (3) PLJR 421. Another point that has been raised the selection process will not vitiate nor the person selected, as members of Selection Committee are not incompetent to participate and to conduct the interview including granting of marks to the candidates. There is no allegation that the members of Selection Committee do not possess requisite qualification in terms of Clause 7 of the Statute and in this view of the matter though there may be some technical error, in a situation when there is no allegation of malafide against the Vice-Chancellor and the member of the Selection Committee, merely on technical ground the selection process cannot be declared to be void in law. If there would have been an allegation that particular person is deficient in qualification were appointed as member of the Selection Committee, in that circumstance it would have been appropriate submission declaring selection of Principal to be bad in law. It has further been submitted that those who have signed the merit list and later on can not resile and withdraw their signature so much so withdrawal will not affect efficacy Patna High Court CWJC No.9167 of 2012 (12) 73 the joint merit list, it will always be treated to be valid merit list for the purpose of the appointment. If any person has signed document will be presumed that he has signed the document with full knowledge of the fact, further submitted that in view of the order of the Hon‟ble Supreme Court which has given the final shape to the selection of the Principals merely, due to some deviation will not dent to the correctness of the merit list, persons appointed as Principal is not required to be interfered with. He has relied from Annexure R3/A as Rajiv Ranjan (respondent no.16) having 67 marks in academic performance having been granted 17 marks in interview. Respondent no.17, Anand Kumar Singh was granted 64 marks in academic performance, 16 marks in interview. Respondent no.20, Jawahar Prasad Singh has been granted 58 marks in academic performance and 17 marks in interview. It has been submitted that all have been granted marks on the basis of performance in the interview, in order to show the transparency in the interview, the proceeding was video graphed unless there is allegation of favourtisim or malafide, the marks given during the interview will not vitiate.
51. Learned counsel for respondent no.18 has argued that writ petition is not maintainable on the ground of doctrine of Patna High Court CWJC No.9167 of 2012 (12) 74 waiver and estoppels. He has developed his submission that the candidates/persons participated in the selection process knowing very well the constitution of the Selection Committee, when he could not succeed cannot be allowed to turn round challenge the selection process. He has submitted that all the persons were knowing Dr. Arun Kumar was an acting Vice-Chancellor and it is he who has nominated the experts in the Selection Committee knowing full well without demur they participated in the interview now they cannot turn down and challenge the correctness, veracity and authencity of the selection and its result. In support of his contention he has relied on the judgment in the case of K.A. Nagamani V. Indian Air Lines and others, reported in (2009)5 SCC 515 Paragraph nos. 54 and 55. He has further submitted that the present writ petition is not maintainable on account of pendency of vigilance case. This submission is taken note for rejection and having no substance. Accordingly straightway rejected. He has further submitted that the petitioners in paragraph nos. 35 and 51 has made a false statement with regard to the marks granted to this respondent in research paper as he has submitted three research papers were published with ISNN Code whereas in paragraph nos. 35 and Patna High Court CWJC No.9167 of 2012 (12) 75 51 the name of the petitioner has specifically been mentioned where it has been stated that this respondent was wrongly awarded 9 marks having no research paper with ISNN Code to his credit. He has further submitted that all the research papers are individual not joint research paper. He has further submitted that his research paper was published by K.P. Jaisawal, Research Institute, Patna and Prajana Bharti which are reputed journals. He has further submitted that the falsity of the statement in the writ petition calls initiation of proceeding at criminal contempt and accordingly they are required to be proceeded. Reliance has been place in the case of Madan Lal and others V. State of Jammu and Kashmir and others, reported in A.I.R. 1995 SC 1088, paragraph no.40. He has further submitted that the selection has been made on the basis of totality of the marks obtained by candidate. If any candidate having not good academic performance but has done excellent in interview, he will certainly entitled to his mark, according to his performance. Academic performance cannot be a guideline or criteria to award the marks in the interview as it is a subjective satisfaction of the expert‟s member canot be subject matter of judicial review. He has further submitted that as like person Patna High Court CWJC No.9167 of 2012 (12) 76 Upendra Prasad Singh and Rajiv who were not selected have been granted full marks of 17, merely the persons having obtained 17 marks or above cannot be a basis to declare that they were granted marks wrongly with an ulterior motive. The court cannot sit at the place of expert to assess marks granted in interview nor in exercise of judicial review act an appellate court and as this Court should refuse to interfere in the matter.
52. Learned counsel for respondent nos. 15 and 23 submits that Sailej Kumar is one of the best candidate having 71 marks in academic performance and 17 marks in interview and similarly Phulo Paswan is one of the best candidate in schedule caste category both were selected, both of them were not selected earlier on different reason, but this time they have been declared to be successful. As there is no allegation against these two persons in the writ petition and as such their recommendation as Principal cannot be faulted. He has further developed his argument that when the petitioners have taken a calculated chance participated in the interview knowing full well that Dr. Arun Kumar was Acting Vice Chancellor and the persons have not been selected in that circumstances when they could not succeed, they cannot turn round and make a grievance with regard to the recommendation and selection of Patna High Court CWJC No.9167 of 2012 (12) 77 the candidate as Principal, unless there is personal bias in giving marks in the interview, which has to be proved, but utterly failed, mere suspicion can not take place proof in view of the fact that granting the marks lies within the domain of experts of Selection Committee. He has relied on the judgment in the case of Madan Lal (supra), paragraphs 8, 9 and 16. He has further submitted that there are certain persons who having done fair in academic performance may be non- communicative merely persons having a better marks in academic performance cannot be a ground to hold the marks granted suffers from illegality. He has reiterated the submission that Acting Vice-Chancellor has all power to perform all duties alike regular Vice-Chancellor. He has further submitted that he has filed counter affidavit and elaborately dealt with the issue involved in the present case.
53. Learned counsel for respondent no.26 has submitted that this present litigation is proxy litigation and has been filed at the behest of Dr. Shiv Jatan Thakur, in view of the fact that interview was held in between 11.10.2011 to 16.10.2011, consolidated merit list was prepared on 6.1.2012 and he has signed merit list, he has made a complaint for the first time on 9.1.2012 (Annexure 18). He has submitted, some thing Patna High Court CWJC No.9167 of 2012 (12) 78 happened in between 6.1.2012 to 9.1.2012 that had gone wrong which compelled Dr. Thakur to raise his grievance is best known to him should be divulged by him as it lies in the darker side, in view of the fact that, he has signed combined merit list with full knowledge and with full conscious about the person standing combined merit list. There is no material on record to show why Dr. Thakur and Raj Mukul absented themselves from the interview but both of them signed the combined merit list. If he was of the view that some thing wrong was committed and person has been granted marks wrongly he should not have put his signature. The Selection Committee has granted the marks but by writing a letter dated 9.1.2012 he created a boggy which is not sustainable in view of the fact that both candidates Dr. Thakur and Raj Mukul having knowingly signed the combined merit list. He has further submitted that constitution of the Committee was tested before Hon‟ble Supreme Court and it would be apparent from Annexures-4, 10 and 12 which are order passed by Hon‟ble Supreme Court in that circumstances the petitioners does not have a right to challenge the constitution of Selection Committee before this Court. So much so there is no specific averment give specific ground, as to why Patna High Court CWJC No.9167 of 2012 (12) 79 constitution of selection Committee is bad in law save and except paragraph nos. 29 and 30 of the writ petition. He has further submitted that when the members of the Selection Committee participated and granted marks he can not be allowed to create a boggy in the matter of the selection was made. Reliance has been placed in the case of Dr. Bijayananda Kar (supra) paragraph 81 and in the case of Madal Lal and others Vs. State of Jammu and Kashmir and others, reported in (1995)3 SCC 486, paragraph 9. He has further submitted that grant of marks by an expert lies within their domain and cannot be the subject matter of judicial review and this Court refused to embark upon judicial scrutiny in what manner the expert have granted marks to the candidates appeared before him. In support of his contention he has relied on Basa Vaiah (Dr.) V. Dr. H.L. Ramesh and others, reported in (2010)8 SCC 372. He has further submitted, as Dr. Shiv Jatan Thakur was creating impediment in finalization of the merit list the nomination of Dr. Shiv Jatan Thakur as nominee of the Chancellor was withdrawn vide letter dated 27.2.2012 Annexure R3/B. He has submitted that in the writ petition the petitioners have not sought for consequential relief in that view of the matter in absence of Patna High Court CWJC No.9167 of 2012 (12) 80 the same the writ petition is liable to be dismissed.
54. Learned counsel for respondent nos. 28, 29, 32, 33 and 34 has submitted that it is proxy litigation of Dr. Thakur as the cause of action has been on account of Annexure13 and Annexure- R3/B, the manner he was treated, is the cause for filing of the present writ petition. The purpose of Selection Committee was to conduct the interview and to grant marks thereafter only clerical work was left for the University, the moment the Selection Committee has been granted marks to each candidate the members of the Selection Committee was not required to act further. He has further submitted that there is no allegation against these respondents as they were earlier selected and this time also they have been selected, for their no fault, they have been dragged in the present litigation. He has further submitted that no wrong has been done except some irregularities in the process of the constitution will not unsettled thing which has already been settled by giving marks. He has relied on the judgment reported in Madal Lal (supra), paragraph 18 where the Hon‟ble Supreme Court has held that unless there is allegation of malafide the recommendation as it is, cannot be declared to be bad and this Court should not take very lightly and interfere in the Patna High Court CWJC No.9167 of 2012 (12) 81 selection of candidates. He has further submitted that they belonged to deprive class of society and they have been forced to face long drawn litigation. If this Court comes to a conclusion that constitution is wrong and declared the whole process of selection at least they should be given protection if they are again selected they should be treated to have been appointed from the initial date as has been done by this Court on the earlier occasion. He has further submitted that in this view of the matter this Court should not interfere in the matter and allow the respondents to hold the office of the Principal even though this Court come to the conclusion that there was some deviation in constitution of Selection Committee.
55. In reply, learned counsel for the petitioners submits that as per letter dated 22.6.2011 (Annexure 8) Dr. Arun Kumar was appointed as in-charge Vice-Chancellor having no power of regular Vice-Chancellor He has further submitted that he was Acting Vice-Chancellor of B. N. Mandal University and on account of causing of vacancy as per Section 13(2) he was appointed as acting Vice-Chancellor of Magadh University. He further submits that Section 13(2) of the Act has used the word "make such arrangement for purpose of duties of the office of Vice-Chancellor" The Patna High Court CWJC No.9167 of 2012 (12) 82 manner phrase has been arranged which completely shows that it was not the appointment but an arrangement was made to discharge the function of the office of the Vice Chancellor and submits that in terms of Section 13(2) of the Act he was only to discharge the routine duty and cannot said to have been empowered to discharge the function and duties of the regular Vice-Chancellor, has acted is incoherent to the provisions of Section 13(2) of the University Act. He has further submitted that with regard to the nomination of the expert he has submitted that the manner the experts have been nominated by the Vice-Chancellor is completely de hors to the provisions of Section 57 of the University Act read with Clause 7 of the Statute. He has further submitted that he ought to have called the list of ten persons from each of the Head of Department and name proposed by them ought to has been placed before the Academic Council for its approval. Scheme of the act does not provide that the Vice-Chancellor will act solo prepared the list, approved and nominate. The manner the Act and Statute have been arranged for keeping a balancing of power, the Academic Council was to approve the list. He has further submitted that who ever prepared the list but it was mandatory required the approval from the Academic Council. Patna High Court CWJC No.9167 of 2012 (12) 83 He has further submitted that Annexure S/1=Annexure 29 which is the minutes dated 5.7.2011 of Academic Council item no.5 has only authorized the Vice-Chancellor to prepare the panel and Annexure S/2 is the list of 11 persons in typed sheet scribed by the Vice-Chancellor the note sheet at the bottom shows that the Vice-Chancellor has already decided the name of persons would be figured in the panel of the expert as the Vice-Chancellor was not knowing the fact that Academic Council would authorize him to prepare the panel of expert. It shows that Vice-Chancellor was carrying the list of 11 persons with himself as an expert shows the manner the proceeding dated 5.7.2011 was conducted. He has further submitted that meeting dated 7.7.2011 of Syndicate (Annexure S/3) in its agenda no.2 approved the minutes of proceeding dated 5.7.2011 which shows that this recital does not show that list of expert was approved rather it shows that what was approved is authorizing the Vice-Chancellor to prepare the panel of expert. He has further submitted that the proceeding of meeting of Academic Council dated 13.11.2011 (Annexure S/4) shows that in Agenda No.2 confirmed the proceeding of Academic Council dated 5.7.2011. On that basis, submission has been made, never the list prepared by Patna High Court CWJC No.9167 of 2012 (12) 84 the Vice-Chancellor was placed before the Academic Council that every thing was done in one go (in one transaction) is not sustainable on fact as well as on law. He has further submitted that the University has filed an affidavit on 8.5.2014 i.e. after conclusion of the argument of the petitioner and they tried to potray a novel method was adopted in the matter of approval by the Academic Council and subsequently nomination of the expert from the panel.
56. Learned counsel for the petitioners has replied the argument advanced by the University that the proceeding of the Academic Council dated 13.11.2011 (Annexure S/4) confirmed the proceeding of the Academic Council dated 5.7.2011 (Annexure S/1) will be sufficient to safeguard the selection of the expert by the Vice-Chancellor has not brought any document to substantiate the submission, in fact there was/is no approval of name of expert by the Academic Council. He has further submitted that if the provision of Section 57 of the Act and clause 7 of the Statute if read together it will show that first step is to prepare the panel get approval from the Academic council and from that approved panel the Vice-Chancellor was required to nominate the experts so it cannot be said that any approval after selection Patna High Court CWJC No.9167 of 2012 (12) 85 will not cause any illegality is not sustainable. He has further submitted that letter of Registrar dated 18.7.2011 (Annexure S/5), for the first time, has seen the light of the day as after conclusion of the argument on 8.5.2014 supplementary counter affidavit was filed brought this letter of the Registrar to show the approval of the Academic Council but there is no material on record to substantiate the statement made in the said letter. He has further submitted that letter dated 18.7.2011 (Annexure-S/5) is not congruent to the proceeding dated 5.7.2011 Annexure S/1=Annexure 29. He has further submitted that letter dated 18.7.2011 (Annexure S/5) shows that the Registrar has requested for nomination of three external experts and one internal experts which has not been envisaged in Section 57 of the Act read with Clause 7 of the Statute and as such the manner the expert has been selected and nominated is de hors to the provisions of the Act. Nomination of Srikant Sharma as one of the member of Selection Committee has been challenged. As per the Statute, senior most Head of the department/Principals was to be appointed as per the provision of law but Shrikant Sharma was not the senior most Principal or Head of the Department as Dr. Madan Murari, Principal of A.N.S. College, Barh was Patna High Court CWJC No.9167 of 2012 (12) 86 appointed as Principal in the year 1988, Dr. Baban Singh, Principal of T.P.S.College, Patna and Dr. Bishundeo Prasad Vidyarthi were made Principals with effect from 21.4.1994 whereas Shrikant Sharma was made Principal with effect from 25.4.1994 which is apparent from Annexure-17 series. So much so it has been argued that in paragraph 29 (iii) of the writ petition it has specifically been mentioned six persons being senior, Srikant Sharma only the explanation vide Registrar letter dated 4.7.2011 (Annexure S/8) has come with regard to Dr. S.N. Singh, Dr. Asha Singh and Dr. Haridwar Singh. There is no explanation from the University or any of the private respondents with respect to Dr. Madan Murari, Dr. Baban Singh and Dr. Bishundeo Prasad Vidhyarthi were senior to Dr. Shrikant Sharma, as per the Statute only senior most i.e. Dr. Madan Murari, Principal of A.N.S. College, Barh appointee 1988 ought to have been appointed but illegally Shri Kant Sharma was nominated and appointed as an expert of the Selection Committee. He has further submitted, with regard to quorum learned counsel for the University has submitted that quorum was required during interview, but as per petitioner quorum was required to be followed not only during interview but quorum was required to be maintained Patna High Court CWJC No.9167 of 2012 (12) 87 up to preparation of final list as per Clause 3 and 4 of the Statute. He has further submitted that as per Clause 3 of the Statute, first, it was required to prepare the panel, double the vacancy and short list the panel to the extent the vacancy required to be filled in terms of seniority and recommend the name of the selected candidates but the panel and select list was not prepared in the manner which was required to be followed in terms of Clause 3, 4 and 7 of the Statute. He has further submitted that out of three experts at least two experts were required to be remained present right from the interview up to the final preparation of the selected list which is absent in the present matter. He has further submitted that no date has been given in the combined merit list (Annexure R3/A=Annexure S/13) and so much so as per the statement made in the interlocutory application before Hon‟ble Supreme Court the word has been used as "tentative merit list" which was never finalized. He has further submitted that letter of Raj Mukul dated 28.2.2012 (Annexure-25) shows that the Selection Committee met on 4.2.2012 and it was decided to cancel the merit list and thereafter no merit list was prepared. So much so that the letter written by Dr. Shiv Jatan Thakur (Annexures-18 and 21) shows that Dr. Shiv Jatan Thakur had Patna High Court CWJC No.9167 of 2012 (12) 88 put his signature on the merit list on 6.1.2012 and he withdrew the same and the list that has been brought is without date. One startling fact has been pointed out by Dr. Shiv Jatan Thakur, completely is blind person, through his assistant that his signature appearing on the combined merit list do not tally to each other. On perusal of both the signature of Dr. Shiv Jatan Thakur it is apparent from a naked eye, both are completely different to each other and it can safely be said that it was not signed by the same person specially at page 198 (Annexure-R3/A). This document creates a serious doubt. Original documents have been produced before this Court which shows that no experts has not granted any number in research paper to any of the candidate as column under the heading of research paper is complete blank. In this situation when three experts have not granted any marks to the candidate in research paper under what basis the candidate were granted the number in research paper is completely mystery which has not been explained by the University. He has further submitted that taking shelter of the order of the Hon‟ble Supreme Court all wrongs have been committed. The Hon‟ble Supreme Court in its order dated 6.5.2011 has approved the order of learned Single Judge with a rider that Patna High Court CWJC No.9167 of 2012 (12) 89 fresh selection would be conducted from amongst those who had applied pursuant to advertisement issued on 25.10.2008 strictly in accordance with the relevant statutes, rules and regulations and without being influenced by the directions given by the learned Single Judge and as such Hon‟ble Supreme Court has given a strict direction to follow the provisions of the Act and its Statute. Nowhere it has been directed to constitute the Selection Committee de horse to the provisions of the Act or Statute framed thereunder. He has further submitted that Hon‟ble Supreme Court has not approved any appointment or function of the Vice-Chancellor as C.W.J.C. No. 12535 of 2011 (Pramod Kumar Sharma, advocate Vs. The Chancellor, Magadh University, Patna and others) was filed as Public Interest Litigation, in which, interim stay was granted and the Hon‟ble Supreme Court in S.L.P. 14775 of 2011 (Annexure-10) has vacated the order of stay. The order does not show the Court has considered the issue involved in the present case and as such the University cannot take shelter of all its wrong doing has been approved and cannot claim protection as because Hon‟ble Supreme Court has vacated the order of say Vide order dated 7.9.2011 (Annexure-10). He has further submitted that the order passed Patna High Court CWJC No.9167 of 2012 (12) 90 by Hon‟ble Supreme Court in S.L.P. 25973 of 2011 and S.L.P. No.11529-11531 of 2011 (Annexures 11 and 12) by which the Court has passed the order, does not mean that such issue was raised and it was decided by the Supreme Court and as such the order that has been passed by the Supreme Court cannot be treated to be binding precedent as nowhere the fact in issue was discussed and decided.
57. Learned counsel for the petitioners has placed reliance on the judgment of the Hon‟ble Supreme Court in the case of Debendranath Nanda V. Chandra Shekhar Kumar, reported in A.I.R. 2013(1) SC 501, paragraph nos. 47 to 50 specially 52, Union of India Vs. Dr. Kushala Shetty and others, reported in A.I.R. 2011 SC 3210 with respect to parameter of exercise of judicial review. In reply to the waiver and estoppels he has submitted when there is inherent defect in the manner of constitution of Selection Committee the principle of waiver and estoppels will not apply, specially in a view that the petitioners outsider were not knowing as to what manner and what method was adopted in the constitution of Selection Committee as constitution of Selection Committee is a very secret issue which is not supposed to be known to these petitioners and as such the claim of waiver and estoppels Patna High Court CWJC No.9167 of 2012 (12) 91 will not be applicable to the present case. In support of his argument relied on the judgment in the case of the Union of India V. S.P. Tripathi and others, reported in 2014(1) PLJR 731, paragraph nos. 32 and 34.
58. Before deciding the case it will be appropriate to say that in the first round 22 Principals were appointed in different transaction vide Memo No.65/2009, 96-01/2009 and 99-02 of 2009 against the advertisement dated 25th October, 2008. Their appointment was challenged by Dr. Bimal Prasad Singh one of the applicant successfully (Dr. Bimal Prasad Singh V. The State of Bihar & others, reported in 2011(1) PLJR 1134. In that case plea was taken that the Selection Board granted marks in publication/research in interview illegally, mala fidely, arbitrary manner out of extraneous considerations. Charges were made that anomalies in large were perpetrated in preparation of panel for appointment of Principals. It was pointed out that those applicants who had secured higher marks in academic achievements, they were deliberately allotted very low marks in interview in order to keep them in lower position. Another point was taken those who have secured much lower marks in academic career but they were allotted much higher marks in interview with the Patna High Court CWJC No.9167 of 2012 (12) 92 sole object to accommodate them. The Court in paragraph 14 has taken the view that this Court cannot sit-over as an appellate court over the marks awarded by an expert body in interview to the individual candidates. The Court has said that marks awarded shows in clear pattern discernible, marks were granted in a planned manner to give undue advantage to some candidates and create disadvantage for others, this Court formed an opinion that the marks awarded by the expert body to individual candidates in interview under wrong consideration. The Court in the judgment has given examples under what manner the marks were given. In another aspect of the matter the Court has held that "the function of the Selection Committee to select the competent person is independent and not under the control of the University or any other authority under law. Therefore, the moment vacancies of the post of teachers and officers of the University are identified and notified, the same has to be treated by the Selection Committee as requisition and then it is required to initiate the process for filling up of those vacancies by getting advertisement published on all India basis inviting the applications from all eligible candidates for their consideration, inconformity with the spirit of Articles 14 and Patna High Court CWJC No.9167 of 2012 (12) 93 16 of the Constitution. The moment an advertisement is published and till the final merit list is prepared and final recommendation is made by the Selection Committee to the University, the University officials particulars the Vice- Chancellor of the University has not individual role to play in the process of selection, though he may be ex-officio Chairman of the Committee. All decisions, at all stages, in the process of such selection has to be of the Committee itself and any delegation of power by the Committee to the Vice- Chancellor, if all made, may only amount to abdicating its constitutional functions by the Committee. The petitioners have pointed out defects and errors committed by the Committee in the process of selection and preparation of the final panel in this case and apparent anomaly in award of marks in interview to the candidates. Therefore onus lay on the respondents to satisfy this Court that at each and every stage the Committee had taken steps for final recommendation of the names to the University for appointments strictly as required in law and no errors, mistakes or lapses were committed by it.
In paragraph 16 the Court has held as follows:
"In the present case, no merit list has been produced on record by the respondents and it is not Patna High Court CWJC No.9167 of 2012 (12) 94 known whether the Selection Committee had at all prepared a final combined merit list or not. This Court notices that Annexure-3, the list available on the record with the signature of members of the Committee, is not a merit list. This list is only a „chart‟ with details of marks allotted to all the 351 applicants under different heads in seriatim of their application numbers and in separate category they had applied. The „chart‟ also shows that no ranking was allotted to the individual candidates, as per their marks by it. Thus it is apparent that this exercise was only a ground work on the basis of which final combined merit list had to be prepared by the Selection Committee wherefrom only the final panel of candidates to be recommended for appointment had to be prepared. There is nothing on record to show that the Selection Committee did this. The vital link in the process, between the chart of the names of the candidates with details of marks, without their ranking, as contained in Annexure-3 and panel notified by the University, as contained in Annexure-4, namely, a combined final merit list is missing in the case. There is no pleading on record and no document available with the affidavits of any party to show that such a final combined merit list was prepared by the Selection Committee, on the basis of which the panel was prepared as notified by the University vide Annexure-4. From the note at the bottom of Annexure-4, it appears that up to three days prior, the Vice-Chancellor in the capacity of Chairman of Selection Committee, had passed orders and had issued directions. This clearly shows that final merit list and panel was not prepared by the Selection Committee and, if at all, it was left to the discretion of the Vice-Chancellor, in the capacity of Chairman of the Selection Committee, to select the names for inclusion in the panel and notify the same. This was clearly beyond the authority vested in him by the Statute, even though he was in the capacity of Chairman of the Selection Committee, and any delegation of powers to him by the Selection Committee, if at all there was, clearly amounted to abdication of its functions by the Patna High Court CWJC No.9167 of 2012 (12) 95 Committee not warranted in law. This clearly vitiates the entire selection process and goes to the root of the matter."
It will be appropriate to quote paragraph nos. 17 and 18 of the aforesaid judgment:
"17. Learned counsel for the petitioners has pointed out specific errors, anomalies and lack of objectivity by the members of the selection Committee. The factual aspects in respect of the same were placed before this Court in detail by producing different charts to make things clear, to which there has been no explanation by the respondents. The main plank of resistance of the respondents to the challenge of the petitioners has been that the petitioners were individually not aggrieved and, therefore, their writ application was not maintainable. The fact that the petitioners have challenged the entire selection process, the assessment of publication/research paper as per the yardstick laid down in the statute, the lack of objectivity in awarding of marks in interview, does make the writ application maintainable on their behalf. For instance the petitioners have pointed out that as many as 14 candidates had secured 76 marks, but how the names of 3 respondents were filtered out for appointment is not clear. They have shown, by producing a chart, that the three respondents, who had also secured 76 marks alongwith the other 11 candidates, had been awarded 18 marks out of 20 in interview, whereas they had as low as 49, 55 and 52 marks respectively for academic achievement and 9, 3 and 6 respectively for publication/research. The petitioners have shows that the majority of the respondents, who were appointed, had comparatively been awarded such high marks in the interview. They have also asserted that though many of the candidates had produced three or more publications of their research work in standard/recognized journals, they were not allotted full 9 marks by the Selection Committee. Patna High Court CWJC No.9167 of 2012 (12) 96 These uncontroverted facts clearly establish that the action of the Selection Committee in the process of selection was not fair, objective and flawless in respect of comparative weight and preference to be given between written test and interview in case of a tie, this Court finds the following observations of the Division Bench in the case of Pandey Venktesh Pd. Singh (supra) as useful guide:-
"8. It is not possible to lay down a rigid formula for resolving this for universal application to all kinds of appointments. Some appointments are made without holding any written examination at all; as for example, the direct appointment to a post of Additional District and Sessions Judge made by the High Court on the basis of the interview. But, generally appointments are made on the basis of a written examination followed by a viva voce test allocating higher marks at the written test and lower to the oral part. In my view, in all such cases, preference must be given to the candidates obtaining higher marks in the written examination. The observations made by the Supreme Court in Ashok Kumar Yadav‟s case (supra) although in the contest of the proportion to be allotted to the written examination and viva voce test, are helpful in the present case also as they refer to their „relative weight‟. The view of Glenn Stahl in his book on Public Personal Administration referred to in paragraph 25 of the Supreme Court judgment pointing out disadvantage in viva voce tests is illuminating. The difficulty of developing a valid and reliable oral test and the difficulty of securing a reviewable record thereof cannot be ignored judicial notice must be taken of the fact that the public in general is suspicious of corrupt, nepotistic and extraneous considerations weighing at such test. It is true that viva voce tests also have their own advantages, but do they out weight the factors in favour of the written examination? I do not think so and my view is reinforced by the circumstance that in all such selective process in which the choice is made on the basis of both written examination and viva Patna High Court CWJC No.9167 of 2012 (12) 97 voce test, the marks reserved at the interview are invariably lower than those for the written part."
(emphasis supplied)
18. It cannot be disputed that transparency and accountability are call of the day. Every public functionary must act responsibly, fairly, objectively and with maximum possible transparency, in consonance with the spirit of the constitution and statutory provisions. In the matter of public employment, to conform with the requirements of Articles 14 and 16, the selection process must be flawless, open and objective, giving equal opportunity and equality in the matters of consideration to all eligible candidates. In case fairness of a selection process is called in question in a court of law, it is the authority concerned which has to establish its actions as strictly satisfying the test of Articles 14 and 16. Any infraction in the same, leading to breach of the constitutional mandate, is bound to lead to invalidity of the entire selection process. It is not the question of consideration of the individual candidates and the comparative right between two individuals. It is the question of inspiring confidence of the people in the process adopted, by making it transparent to the maximum and flawless. In this case the respondents and particularly the Selection Committee constituted as per the substituted Section 57 of the Bihar State Universities Act, 1976 have failed to do so."
59. After due consideration the Court has held that there is no option but to quash the entire selection process held by the respondents pursuant to the advertisement, as contained in Annexure-1, and thereafter the Court has directed certain steps to be taken.
60. The matter traveled up to Hon‟ble Supreme Court in Patna High Court CWJC No.9167 of 2012 (12) 98 Special Leave to Appeal vide S.L.P. No. 11529-11531 of 2011 whereby the Hon‟ble Supreme Court has dismissed the Special Leave Petition in the following manner:
"The special leave petitions are accordingly dismissed with the direction that the University shall make fresh selection from amongst those who had applied pursuant to the advertisement issued on 25.10.2008 strictly in accordance with the relevant statutes, rules and regulations and without being influenced by the directions given by the learned Single Judge in the last portion of the order passed by him.
The University shall complete the process of selection within a period of four months. Till then, the petitioners shall be allowed to continue in their present position. However, it is made clear that this shall not create any equity in favour of the petitioners."
61. In view of the order of the Hon‟ble Supreme Court the University was required to make fresh selection from amongst those who had applied pursuant to the advertisement issued on 25.10.2008 by that time the appointment of Dr. Arvind Kumar, Vice-Chancellor of Magadh University was challenged before this Court vide C.W.J.C. No.8141 of 2010. The same was allowed, accordingly appointment of Dr. Arbind Kumar was declared illegal. Letters Patent Appeal was also preferred vide L.P.A. No.824 of 2011 and ultimately that was also dismissed. As there was no Vice-Chancellor in Magadh University, Dr. Arun Kumar who was the in-charge Patna High Court CWJC No.9167 of 2012 (12) 99 Vice-Chancellor of B.N. Mandal University, Madhepura was directed to take charge of Magadh University. On assumption of charge, he, in exercise of power under Sections 57(B) of the University Act read with Clause 7(i) of the amended Statute constituted a Selection Committee consisting of Vice- Chancellor of Magadh University as ex-officio Chairman, Professor Shiv Jatan Thakur, English Department, Patna University, Patna as a Governor‟s nominee, R.D.D.E., Magadh Division, Gaya member Governments‟ nominee, Prof. R. Pandey, Pro Vice-Chancellor, Nilamber Pitamber University, Daltonganj, Palamu, Prof. Victor Tigga, Ex. Vice- Chancellor, S.k. University, Dumka, Prof. Surendra Kumar Brahamchari, Ex. Vice-Chancellor, K.S.D.S. University, Darbhanga and Dr. Srikant Sharma, Principal, Gaya College, Gaya.
62. Before the interview could have started one Pramod Kumar Sharma Advocate filed a Public Interest Litigation vide C.W.J.C. No. 12535 of 2011 challenging ensuing selection process and prayed for stay of the interview. Accordingly this Court vide order dated 3.8.2011 passed the order in following terms:
" There shall be stay of the interview being conducted under orders of Dr. Arun Kumar, the Patna High Court CWJC No.9167 of 2012 (12) 100 Acting Vice-Chancellor of Magadh University, Bodh Gaya, for selection of the Principals of 22 colleges of the Magadh University scheduled to commence from 3.8.2011, at 9 A.M., until further orders of this Court."
63. It is relevant to mention that the writ petition was filed under Public Interest Litigation and the order of stay was challenged before Hon‟ble Supreme Court vide S.L.P. No. 14775 of 2011 where the Court has passed the order in following terms:
"We are prima facie satisfied that the Division Bench of the High Court committed serious error in entertaining a writ petition filed by way of public interest litigation questioning the process of selection for appointment of the Principals of 22 constituent colleges of Magadh University and passed an unusual interim order staying the interview being conducted ignoring that the selection was being held pursuant to the directions given by this Court in SLP © Nos. 11529-11531 of 2011 "Om Prakash Singh and others versus Bimal Prasad Singh and others....." This would necessarily mean that the process of selection which was initiated pursuant to the direction given by this Court in SLP© Nos. 11529-11531 of 2011 "Om Prakash Singh and others versus Bimal Prasad Singh and others" shall continue. The selection must be completed within a period of six weeks from the date of receipt of copy of this order."
64. Counsel for the private respondents have raised the issue that as the appointment and functioning of Dr. Arun Kumar and constitution of Selection Committee was under Patna High Court CWJC No.9167 of 2012 (12) 101
consideration before Hon‟ble Supreme Court and the Hon‟ble Supreme Court after due consideration vacated the stay order of this Court and directed to go ahead with the interview and finalize the same. In view of order passed by Hon‟ble Supreme Court plea has been taken that Hon‟ble Supreme Court has given final seal to go ahead with the selection process, the selection was made on the basis of the direction of the Hon‟ble Supreme court this Court should not embark upon microscopic examination of the selection done by the Committee constituted by Dr. Arun Kumar and this Court should keep their hand off. If the petitioners are aggrieved and feel cheated having the grievance about the manner of constitution of Selection Committee or any action taken by the Selection Committee they should approach to the Hon‟ble Supreme Court, there they can raise their grievance, not before this Court.
65. It will be duty of this Court to deal with the objection that has been raised by the respondents as to whether this Court is competent to examine the constitution of the Selection Committee, its recommendation and ultimately appointment of Principals of 22 colleges.
66. First of all this Court will have to examine the Patna High Court CWJC No.9167 of 2012 (12) 102 proceeding, judgment and order of Hon‟ble Supreme Court whether the Court has considered the nature of allegation made in this writ petition and whether the Hon‟ble Supreme Court has dealt with the case on merit and arrived to the finding on merit of case. As apparent from the order dated 7.9.2011 passed in S.L.P. No. 14775 of 2011 the Hon‟ble Court confined consideration to deal with the stay order passed by this Court in C.W.J.C. No. 12535 of 2011 with respect to commencement of interview.
67. Before the Hon‟ble Supreme Court consideration was not on merit but the Hon‟ble Supreme Court confined it consideration about entertainment of Public Interest Litigation in service matter and stay granted about holding of interview has held that this Court has committed an error of law in passing the stay order in service matter in a case filed under the Public Interest Litigation. The Hon‟ble Supreme Court was of the view that the issue of appointment of any person cannot be the subject matter of Public Interest Litigation. From this order it appears that it does not deal with the merit of the case. Other connecting order dated 21.11.2011 with respect to this case is the order passed in S.L.P. No. 25973 of 2011 (Annexure-11), directed against the order passed by the Patna High Court CWJC No.9167 of 2012 (12) 103 Division Bench of this Court in C.W.J.C. No. 12535 of 2011, there the Hon‟ble Court passed the order in the following terms:-.
"Learned counsel for the University gave out that merit list prepared by the Selection Committee has been forwarded to the competent authority and the same is likely to be approved very shortly. In view of above development, the Special Leave Petitions are disposed of as infructuous."
68. In this order also there is no consideration on merit rather the Court has accepted the statement of counsel for the University with regard to preparation of merit list of candidates to be appointed as Principals where impression was given that the merit list prepared by the Selection Committee was likely to be approved by competent authority. In this order also there is no consideration on merit.
69. In Contempt Petition © No.87-89 and I.A. No. 4-6 of 2012 (Annexure-12) the Court has held as follows:
"Shri Amrendra Sharan, learned senior counsel appearing for the applicant, states that the requisite number of members of the Selection Committee have already signed the proceedings. If that be so, there should be no hesitation in declaring the result of selection."
70. This order also does not disclose that Hon‟ble Court has gone into the merit of the case. The Court has not Patna High Court CWJC No.9167 of 2012 (12) 104 considered the constitution of Selection Committee, marks awarded in interview and ultimately selection of 22 Principals who are respondents in this case.
71. As no where Hon‟ble Supreme Court has dealt merit of the case and passed orders without touching the merit, but orders were passed on the basis of the statement made at Bar by learned counsel for the University and as such this Court holds, as there was no consideration on merit and issues that have been raised in the present writ petition, it cannot be said that this Court can not adjudicate the same. The orders passed by Hon‟ble Supreme Court will not act, either res-judicata or constructive res-judicata or any impediment in dealing with this case on merit. Accordingly the objection raised by the respondents that this Court should keep his hand off to make a scrutiny of the constitution of Selection Committee and subsequently the manner the Selection Committee has acted is not sustainable in fact as well as in law. Accordingly the same is rejected.
1. Selection Committee not properly constituted:-
72. The first point that has been raised by learned counsel for the petitioners that the Selection Committee for the appointment of 22 Principals was not constituted in terms of Patna High Court CWJC No.9167 of 2012 (12) 105 Section 57 of the university act read with Clause 7(i)(a) of the Statute. At the initial stage Bihar Public Service Commission was authorized to select the teachers/principals of the constituent Colleges. Thereafter an amendment was made to the University Act, duty of selection and recommendation was conferred to the Bihar State University Constituent College Service Commission and ultimately by Bihar University Amendment Act of 2007, the Selection Committee consisting expert constituted under Section 57 of the University Act would make selection of the competent teachers including Principals in the manner as provided under aforesaid Section of the University Act. As has been claimed by the petitioners, in terms of Section 57 of the University Act read with Clause 7(i)(a) of the Statute the Vice Chancellor would nominate three experts from the panel approved by the Academic Council of the Magadh University but in the present case Academic Council instead of performing the statutory function as provided under the Act in its meeting dated 5.7.2011(Annexure-29) vide item no.5 of the agenda unanimously authorized Vice-Chancellor for preparation of panel of experts for the Selection Committee for the appointment of principals/Teachers and for promotion of Patna High Court CWJC No.9167 of 2012 (12) 106 teachers. As the Academic Council was required to approve ten experts and from that list the Vice-Chancellor would make selection of three experts for the selection committee. It has further been submitted that Section 57 of the University Act and Clause 7 of the Statute does not contemplate empowering the Academic Council to delegate its power of preparing panel of experts to the Vice-Chancellor. It has further been said that when the Statute does not empower to delegate its power to the third person in absence of the same delegation of power by Academic Council to the Vice-Chancellor is completely de hors to the provisions of the Act makes the Selection Committee illegal.
73. While deciding the issue of power of delegation or sub-delegation this Court will not forget to quote well known principle on delegation of power in the following: "delegation non potest delegate" (The power to sub-delegate or impliedly authorized but the enabling Act) meaning thereby if any statute does not exposit for delegation or sub-delegation in that that circumstance, delegation or sub-delegation not permissible. It will be appropriate to examine the provision of the University Act as well as provisions of the Statute in the matter of constitution of Selection Committee. It will be Patna High Court CWJC No.9167 of 2012 (12) 107 relevant to quote Section 57 of the University Act:
"4. Substitution of section 57 of Bihar Act 23, 1976- In the said Act for section 57 the following shall be substituted, namely "57(1)- Subject to the provisions of this Act and the provisions of the statute made thereunder appointment to the post of teachers and officers (other than Vice Chancellor, Pro Vice Chancellor, Registrar and the Dean of Faculty) of the University shall be made by the University on the recommendations of the Selection Committee consisting of the following members:-
(1) The Vice-Chancellor of the University concerned;
(2) One member to be nominated by the Chancellor (3) One member to be nominated by the Government (4) Three experts not connected with the University to be nominated by the Vice-Chancellor from a panel of not less than seven names approved by the Academic Council for each post, out of which at least one member should belong to scheduled caste/scheduled tribes and two shall be from outside the State.
(5) The head of the department of the discipline concerned."
It will also be appropriate to quote Clause 7(i)(a) of the revised Statute:
"7.(i) Composition of the Selection Committee for the post of the Principal (Professor scale/Reader scale) for multiple subject faculty colleges:
(a) Subject to the provisions contained in the Patna University Act‟ 1976 (as amended up-to- date) and the Bihar State Universities Act‟1976 (as amended up-to-date) all the three experts shall be in Patna High Court CWJC No.9167 of 2012 (12) 108 the rank of University Professor and out of that at least one shall be the Vice-Chancellor/Former Vice-
Chancellor/Director/Principal of a constituent college.
The 3 (three) experts in the Selection Committee will be nominated by the Vice-
Chancellor from a panel of not less than 10 (ten) experts approved by the Academic Council subject to the following conditions:
(i) All the three experts shall be from outside the University.
(ii) At least one expert should belong to SC/ST community
(iii) At least two experts shall be from outside the State."
74. On scrutiny of provisions aforesaid which deals with constitution of the Selection Committee where it provides who would be the member of the Selection Committee. First Vice-Chancellor of the University concerned, one member to be nominated by the Chancellor of the University, one member to be nominated by the Government. There is no dispute with regard to nomination of members by the Government or the Chancellor as aforesaid but the dispute is with regard to selection of three experts by Vice-Chancellor in terms of Section 57(4) of the University Act. Three experts not connected with the University to be nominated by the Vice-Chancellor from a panel of not less than ten names approved by the Academic Council out of which at least one member belong to scheduled caste/schedule tribes and two Patna High Court CWJC No.9167 of 2012 (12) 109 shall be from outside the State. Clause 7(i) of the revised Statute also provides that three experts in the Selection Committee will be nominated by the Vice-Chancellor from a panel of not less than ten experts approved by the Academic Council subject to the following conditions. (i) All the three experts shall be from outside the University (ii)At least one expert should belong to SC/St community and (iii) At least two experts shall be from outside the State. Emphasis has been given by the petitioners that the Vice-Chancellor would nominate three experts from the panel of ten experts approved by the Academic Council.
75. As per the submission of learned counsel for the petitioners in the meeting of the Academic Council dated 5.7.2011 vide agenda no.5, the academic Council authorized the Vice-Chancellor for preparation of panel of expert and submitted that there is nothing on record to suggest that Academic Council ever approved the panel of ten experts from which Vice-Chancellor has nominated three experts in the constitution of the Selection Committee.
76. In reply, learned counsel for the University submits that in the University Act there is no provision to suggest how the panel of expert would be prepared but only rider has been Patna High Court CWJC No.9167 of 2012 (12) 110 given that prepared panel would be approved by the Academic Council. As per the counsel for the University, the Vice-Chancellor was not only the chief academician but also the Chief Executive of the University as everywhere either in the syndicate or in the academic council he always holds the top position even in the Selection Committee. He has knowledge about experts in the field of subject. After authorization for preparation of panel as per proceeding of the Academic Council dated 5.7.2011, he instantly prepared the panel then and there itself and vide Annexure S/2 the same was approved by the Academic Council on that day itself. The proceeding of Academic Council dated 5.7.2011 was placed before syndicate in its meeting dated 7.7.2011 (Annexure S/3) and vide agenda no.2 the proceeding of the Academic Council dated 5.7.2011 was resolved to approve. Agenda dated 5.7.2011 was approved by the Academic Council in its meeting dated 13.11.2011 (Annexure S/4). In this way counsel for the University suggests that there is no lacuna whatsoever and it will be presumed that constitution of the Selection Committee was constituted as per terms of Section 57 of the University Act and Clause 7(i) of the revised Statute.
77. It is necessary to make close examination of the Patna High Court CWJC No.9167 of 2012 (12) 111 material that has been brought by the parties it should be kept in mind the Vice-Chancellor while discharging his executive function has a supreme authority. The University Act has been arranged in such a manner the action of the Vice-Chancellor can be controlled through its different functionaries, such as Senate, Syndicate and Academic Council are bodies where the Vice-Chancellor is one of the members. The individual decision of the Vice-Chancellor cannot said to be the decision of the body. It is the body who has to take decision. The provisions of University Act has been arranged in such manner to keep check and balance of functioning of different authorities of University, as power has not envisaged to have concentrated only to Vice-Chancellor but has been distributed in the manner provided under the University Act.
78. In the present case on the analysis of different Annexures such as S/1, S/2, S/3 and S/4, even presuming that Academic Council in its meeting dated 5.7.2011 in its agenda no.5 only authorized the Vice-Chancellor to prepare the panel, even presuming that he has prepared the panel but there is no material to show that the panel prepared by the Vice- Chancellor was ever placed before the Academic Counsel and that was approved by the Academic Council and from there Patna High Court CWJC No.9167 of 2012 (12) 112 the Vice-Chancellor nominated three experts. The University has not brought any record to show that the panel was ever approved by the Academic Council and also does not appear from the record that panel which was prepared by the Vice- Chancellor was ever placed before Academic Council and same was approved. So this Court arrive to conclusion that Academic Council had never an occasion to examine the prepared list of the experts which had an occasion to make an approval and from there the Vice-Chancellor had nominated three experts. What will be the consequences of violation relates to non-approval of the experts by the Academic Council is no longer res integra as this issue came up for consideration before this Court in the case of Dr. Rai Murari (supra). This Court has considered procedural aspect in the matter of constitution of selection of Selection Committee. In paragraph 8 of the aforesaid judgment the issue was raised where it has been said that it was duty of the Academic Council to recommend names of not less than 10(ten) experts from which the Vice-Chancellor had authority to nominate three experts. In paragraph 31 of the aforesaid judgment the Court has held as follows:
"The question that an Expert Committee knows best is not disputed but the Expert Patna High Court CWJC No.9167 of 2012 (12) 113 Committee must have legal basis for taking a decision. If the Expert Committee has not been constituted in terms of the Statute or the Expert Committee has been packed with people who are alien since their names have not been recommended from any quarter for being included in the panel, then it was an illegal Expert Committee sans authorization of law and therefore, such a decision of the Expert Committee cannot be treated as legal opinion binding on a Court."
Identical issue was again raised in the case of Navin Kumar (supra) where also the selection was challenged. One of the grounds was taken for recommendation of the candidate by the Selection Committee not constituted under the provisions of the University Act cannot be the basis of selection of teachers. In will be relevant to quote paragraph nos. 10 and 11 of the aforesaid judgment:
"10. Counsel for the petitioner submits that under the revised statute, power to approve panel of 10 names of experts is vested in the academic Council. This power could have been exercised by the Academic Counsel only and in no case there should have been delegation of this power to the Vice-Chancellor of the University. This view has also been propounded in a decision reported in 2011 (1) P.L.J.R. 1134, that if statute vests any power/jurisdiction in a particular person/authority, it must be exercised by the authorized person only, as there cannot be re-delegation of delegated power.
11. In the present case, admittedly the Academic Council did not exercise the power and delegated it to the vice-Chancellor. Three experts were selected by the Vice-Chancellor as a result of which constitution of the Selection Committee was Patna High Court CWJC No.9167 of 2012 (12) 114 in violation of the statutory provisions. Any selection made by such illegally constituted, unauthorized Selection Committee cannot be held to be legal."
79. From both judgments it emerges, approval of name of panel of experts by the Academic Council is pre-requisite for exercise of power by the Vice-Chancellor to select the candidates from the panel. It also emerges from the aforesaid judgments that Vice-Chancellor of University would make a request to Head of the Departments to furnish the names of expert, and from that list, the academic Council would short list names and approve ten names of expert and from that, Vice-Chancellor would exercise wisdom and nominate three experts for Selection Committee. If the argument of the University is accepted it will infer, Vice-Chancellor is sole repository, of all power he will act without any rider which is not acceptable in the manner provisions of statute has been arranged. Concentration of entire power to our person under the University Act has never been subscribed. This Court can not forget the old proverb "power tends to corrup, absolute power corrupts absolutely".
80. In this case it is very peculiar that on 5.7.2011 the Vive-Chancellor was authorized to prepare the panel. How the Patna High Court CWJC No.9167 of 2012 (12) 115 Vice-Chancellor was knowing that he would be authorized to prepare the panel. Annexure S/2 shows the name of persons are well typed in white sheet and at the end Vice-Chancellor scribed some words and put his signature with dated. When on that day he was authorized, it does not make any sense that he then and there prepared and got names approved from the Academic Council as has been submitted by the counsel for the University. This Court is of the view that the so called panel of 10 names of expert was with him from earlier. Proceeding of Academic Council does not show approval of list. This Court can safely arrive to a conclusion that Academic Council never approved any panel or prepared panel was ever placed for its approval. When a thing has to be done in a particular manner that thing has to be done in that manner alone as has been held by the Hon‟ble Supreme Court in the case of Shantilal Mangaldas (supra). It has been decided by this Court that if constitution of the Selection Committee itself is not in terms of the University Act and Statute, the nomination of such experts constituting body of Selection Committee cannot be said to be legally constituted body for selection of Principals and this Court holds that as the Selection Committee was not properly constituted in terms of Patna High Court CWJC No.9167 of 2012 (12) 116 Section 57 of the University Act read with Section 7(i) of the revised Statute and this point goes in favour of the petitioners and against the University and respondents.
2. Whether Srikant Sharma was/is senior most Principal:
81. One of the point that has been taken by the petitioner constitution of Selection Committee is also bad on the ground that as per Section 57(1)(5) of the University Act one of the member should be head of department of the discipline concerned and Clause 7(i)(b) of the Statute provides that senior most head of the Department/senior most Principal of constituent college of concerned University in the rank of University Professor should be one of the member of the Selection Committee.
82. In the present case objection has been raised that Srikant Sharma who was nominated by the Vice-Chancellor as member of the Selection Committee was /is not the senior most Principal or the head of the department as there were/are large number of Principals who were/are senior to him but ignoring the seniority Srikant Sharma was nominated on account of his nearness with Dr Arun Kumar, Vcie-
Chancellor. As counsel for the petitioner submits that Dr. S.N. Singh, Dr. Asha Singh, Principal of Arvind Mahila College, Patna High Court CWJC No.9167 of 2012 (12) 117 Patna, Dr. Haridwar Singh, Principal of A.N. College, Patna, Dr. Madan Murari, Principal of A.N.S. College, Barh, Dr. Baban Singh, Principal of T.P.S. College, Patna and Dr. Vishundeo Vidyarthi are senior to Sri Kant Sharma but a very much junior person was nominated as member of the Selection Committee. The University has not disputed the seniority of Principal claimed by the petitioner but has furnished explanation for selection of Srikant Sharma by filing Annexure S/8 from which it appears that Registrar vide letter/note sheet dated 4.7.2011 has informed the Vice- Chancellor that Dr. S.N. Singh is the senior most Principal but charges from Raj Bhawan are pending against him. Mrs. Asha Singh has taken leave to go outside and Dr. Haridwar Singh showed his inability to participate in the Selection Committee due to his preoccupied engagement in NAAC team and that was the reason, as Sri Kant Sharma had given his consent, request was made to consider him to be nominated as one of the expert of Selection Committee but the said note sheet Annexure S/8 has conspicuously failed to explain why other persons, namely, Dr. Madan Murari, Principal of A.N.S. College, Barh, Dr. Baban Singh, Principal of T.P.S. College, Patna and Dr. Vishundeo Vidyarthi were not nominated Patna High Court CWJC No.9167 of 2012 (12) 118 though from record it is apparent, Dr. Madan Murari was appointed in the year 1988, Dr. Baban Singh and Vishundeo Vidyarthi were appointed on 21.4.1994 whereas Sri Kant Sharma was made Principal with effect from 25.4.1994 vide letter no.859/GIA dated 13.12.1997 (Annexure-17 ).
83. In view of preposition of law the Selection Committee was to be constituted in the manner prescribed in terms of statutory provisions and on that manner alone. There should not have been deviation from the manner prescribed under the University Act and Statute. There is no explanation from the side of the University or have not brought any material to suggest as to why names of other persons above him were ignored. This Court is of the view that Srikant Sharma being not senior most Principal was wrongly nominated as member of Selection Committee and this Court comes to a conclusion that instead of appointing Srikant Sharma any senior most person above him should have been nominated. On this ground alone constitution of Selection Committee is not in consonance with the provisions of the University Act and Statute framed therein.
3. Whether combined merit list was prepared:
84. Another question that has been raised that combined Patna High Court CWJC No.9167 of 2012 (12) 119 merit list Annexure S/13=Annexure R3/A is completely a manipulated document as final combined merit list was never prepared by the Selection Committee. In this case one of the members of the Selection Committee i.e. nominee of the Governor, namely Shiv Jatan Thakur who appeared in person filed an affidavit and submitted that so called combined merit list is nothing but a manipulated document as his signature has been tampered in the said combined merit list. For arriving to a conclusion as to whether really ever any final combined merit list was prepared for the purposes of appointment of Principal, if that be so, any appointment made in pursuance thereof, can be validated in the law.
85. It will be necessary for arriving to a rightful conclusion some important dates to be looked into. As it appears that Dr. Arun Kumar who was asked to discharge the function of Vice-Chancellor, constituted the Selection Committee on 19.7.2011 that was challenged by one Pramod Kumar Sharma in C.W.J.C. No.12535 of 2011. This Court vide order dated 3.8.2011 stayed the interview till further orders. Against the interim order one Praveen Kumar filed S.L.P. No. 14775 of 2011 before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court vide order dated 7.9.2011 vacated the stay Patna High Court CWJC No.9167 of 2012 (12) 120 order of this Court. The interview of 200 candidates and odd was conducted in between 11.10.2011 to 16.11.2011. It appears from the record that Selection Committee sat on 11.11.2011, decided in what manner the marks would be granted in research paper. This is apparent from the counter affidavit of Dr. Shiv Jatan Thakur (respondent no.8), counter affidavit of Raj Mukul (respondent no. 9). S.L.P. No. 25973 of 2011 and S.L.P. No.27380 of 2011 challenging the interim order of stay dated 3.8.2011 passed in C.W.J.C. No.12535 of 2011 was taken up on 21.11.2011 where counsel for the University made statement that merit list prepared by Selection Committee has been forwarded to the competent authority and the same is likely to be approved very shortly. It also appears from the record that the Acting Vice-Chancellor has obtained the signature of Dr. Shiv Jatan Thakur nominee of the Governor, Raj Mukul, nominee of the State Government and Srikant Sharma. But Dr. R. Pandey Pro-
Vice-Chancellor, Nilamber Pitamber University, Daltonganj, Prof. Victor Tigga, Ex. Vice-Chancellor, S.K. University did not put their signatures. Dr. Shiv Jatan Thakur wrote a letter on 9.1.2012 (Annexure-18) where he has stated that his signature has been obtained by manipulation and made Patna High Court CWJC No.9167 of 2012 (12) 121 allegation of criminal breach of trust and by that letter he has withdrawn his signature. Similarly Dr. Raj Mukul, Government nominee vide Memo No.11 dated 10.1.2012 withdrew his signature and informed that his signature appended in the list will be deemed to have been withdrawn. Here one thing is very important as per Dr. Shiv Jatan Thakur he has put his signature on 6.1.2012 but the combined merit list Annexure R3/A does not bear any date. So much so it is also a fact that two members of expert committee did not put their signatures. The Registrar of Magadh University vide letter dated 17.1.2012 (Annexure E to the counter affidavit of respondent no.10) informed all the members of the Selection Committee that member will sit on 20.1.2012 at Magadh University, Guest House at Patna. Request was made to attend the meeting but before the committee could sit and decide principle for awarding marks, the Government received an information that by adopting illegal practice candidates were going to be appointed as Principal illegally, improperly and fraudulently. At the first instance Mr. I.C. Kumar, retired I.A.S. was asked to hold the enquiry, when co-operation was not extended by the University vide letter dated 26.7.2012 he was substituted by the Commissioner of Division and Patna High Court CWJC No.9167 of 2012 (12) 122 ultimately the matter was referred to Vigilance vide letter dated 12.7.2013. Again on 23.1.2012 (Annexure-20 series) the Registrar of the Magadh University wrote a letter to all the members of the Selection Committee whereby it has been urged that submission of merit list prepared for approval of the Syndicate of Magadh University in compliance of the order dated 9.7.2011 passed in S.L.P. Nos. 11529-11531 of 2011 (Om Prakash Singh and others V. Bimal Prasad Singh and others) and by this letter all the members were asked to submit the final merit list prepared by them within three days from the day of issuance of letter failing which the erring person would liable to be prosecuted for contempt of court at his cost and consequences. Thereafter an interlocutory application (Annexure-26) was filed vide I.A. No.4-6 of 2012 in S.L.P.No.11529-11531 of 2011. In paragraph 13 it has been stated that Sri Victor Tigga and Sri R. Pandey, two of the members who had provided marks by them, unfortunately did not put their signatures on the combined merit list. In paragraph 14 it has been stated that Chancellor nominee wanted to withdraw their signatures from the proposed recommendation of the Selection Committee, two members had not provided marks awarded by them during the interview Patna High Court CWJC No.9167 of 2012 (12) 123 but had nonetheless signed on the combined merit list. It was also stated that the Governor Secretariat vide letter dated 27.1.2012 (Annexure-R/3-B) relieved Prof. Shiv Jatan Thakur as Chancellor‟s nominee in the Selection Committee. In paragraph 22 it has been stated that combined merit list stood prepared but it would not be notified only on the account of the fact mentioned hereinabove which were beyond the control of the University. The course of action which now remained open were that University might be permitted to declare and notify the combined merit list or the Hon‟ble Supreme Court might consider directing a fresh selection exercise to be undertaken by the Selection Committee within a fixed time frame. The interlocutory application was listed before Hon‟ble Supreme Court and Hon‟ble Supreme Court passed the following order:
" Sri Amrendra Sharan, learned senior counsel appearing for the applicant states that requisite number of members of the Selection Committee have already signed the proceedings. If that be so, there should be no hesitation in declaring the result of selection."
86. From this order it appears that Hon‟ble Supreme Court did not enter into merit, merely on the statement of the lawyer passed the order. In the interlocutory application the Patna High Court CWJC No.9167 of 2012 (12) 124 word has been used "tentative merit list", so much so two persons have withdrawn their signatures and two persons have not signed on the merit list. It is one of the important fact that Magadh University vide letter dated 24.1.2012 (Annexure-H to the counter affidavit for respondent no.10) which was communicated to all members of the Selection Committee whereby it was informed that a meeting will be held on 4.2.2012 where objection of Dr. Shiv Jatan Thakur was to be considered, but before that Dr. Shiv Jatan Thakur was relieved. Dr. Victor Tigga by his letter dated 2.2.2012 (Annexure-23) addressed to the Registrar informing him his inability to attend the meeting on 4.2.2012 on the ground that he could know that the enquiry committee has been constituted by the Government to enquire into the selection of the members.
87. In this case Dr. Shiv Jatan Thakur, Dr. Raj Mukul, Dr. R. Pandey, Dr. Victor Tigga filed their respective counter affidavits. Dr. Shiv Jatan Thakur (respondent no.8) in paragraph 7 it has been stated that proposed merit list was signed by four members including this respondent was cancelled by a resolution adopted University Selection Committee in its meeting held on 4th February, 2012 in Patna High Court CWJC No.9167 of 2012 (12) 125 response to strong objection by him (Dr. Shiv Jatan Thakur) vide letter dated 9th January, 2012 and further said that no combined merit list was prepared and approved by Selection Committee ever.
88. Mr. Raj Mukul (respondent no.9) has not made any substantial statement in his counter affidavit. Mr. R. Pandey (respondent no.10) has filed his counter affidavit, accepted, all participated in the interview and he has further submitted that time to time he was asked to participate in the meeting. As per decision dated 11.12.2011 it was decided that individual marks should be submitted to the Vice-Chancellor and he has remitted the individual marks on 19.12.2011 who faced the interview for the post of Principal in a sealed cover which was received on 20.12.2011. He was again called on 20.1.2012 to participate in the meeting which he refused on account of his personal reason. During argument his counsel submitted Mr. Pandey did not participate in the last meeting held on 4.2.2012 on account of his personal reason. Another letter dated 23.1.2012 (Annexure-20 series) was addressed to Sri R. Pandey informing with regard to affidavit of compliance of the order of the Hon‟ble Supreme Court. He was again sent a letter dated 24.1.2012 calling him to participate in the meeting Patna High Court CWJC No.9167 of 2012 (12) 126 on 4.2.2012. In the meantime he has received the notice of enquiry from I.C. Kumar on 24.1.2012. In paragraph 18 he has stated that he has not gone through the record of individual candidate with regard to their academic achievement and paper publication which replied by the respondent, mentioned in his remarks.
89. Similarly Dr. Victor Tigga (respondent no.13) has also filed a counter affidavit in which it has been stated that that he has sent the marks obtained by the candidate during interview which was received by the University authority on 20.12.2011. He has further stated that he has not signed on the so called tentative merit list on 6.1.2012 which was notified on 2.3.2012. So much so he had not seen the merit list till dated i.e. 5th July, 2012. He has further stated that he has received the notice from Mr. I.C. Kumar dated 24.1.2012 about the enquiry into the matter. In paragraph 16 he has specifically stated that though he has participated in the interview on and from 11.10.2011 to 16.10.2011 but he had not gone through the records of individual candidates with regard to their academic achievements and paper publication which replying respondent mentioned in his remarks. This Court can not ignore the letter written by Mr. Raj Mukul to Patna High Court CWJC No.9167 of 2012 (12) 127 the Registrar of the Magadh University dated 28.2.2012 (Annexure-25) which is related to submission of the mark sheet of the Selection Committee for the post of Principals which was conducted from 11.10.2011 to 16.10.2011. He has mentioned, the marks used to be submitted simultaneously at the end of the day. He has stated that tentative merit list carried signatures of four members of Selection Committee, namely, Srikant Sharma, Dr. Shiv Jatan Thakur, Vice- Chancellor-cum-Chairman, Dr. Raj Mukul. Dr. Shiv Jatan Thakur objected and withdrawn his signature claiming to be manipulated consolidated merit list. It is very much important to take note of fact from the aforesaid letters where it has been stated that above all, the Selection Committee in its meeting dated 4.2.2012 has formally resolved that tentative merit list stood cancelled. In this way it is very much clear that the last meeting was called on 4.2.2012. The letter of Raj Mukul dated 28.2.2012 where it was stated that in the meeting dated 4.2.2012 it was formally resolved that tentative merit list stood cancelled. The tentative merit list carries the marks of the interview and marks of the academic career and research paper.
90. From the aforesaid fact it is evidently clear that up to Patna High Court CWJC No.9167 of 2012 (12) 128 28.2.2012 no final merit list was prepared in two days. Though the interview marks was sent by Mr. R. Pandey and Mr. Victor Tigga but they have not sent any marks with regard to the achievement in academic career and research paper as both of them have stated that they had no occasion to examine the records of the candidates.
91. This Court has personally examined the original records produced by the University. Dr. R. K. Pandey (R. Pandey) who was member of the interview Board had specifically stated that "marks based on interview of 20 marks. Academic record and publication not checked by me. Vigilance clearance of candidate should be obtained." In the mark sheet submitted by him it has been stated that he does not give any marks in research paper.
92. Dr. Vcitor Tigga has also not given any marks to any of the candidate in the research paper and academic achievement. Srikant Sharma though he has also not granted any marks on research paper and also it appears that no marks was granted by the Chairman in research paper.
93. Prof. S.K. Brhamchari though he has granted marks in academic performance but in research paper he has also not granted any marks.
Patna High Court CWJC No.9167 of 2012 (12)129
94. On the aforesaid facts, spectrum is very clear that at least two persons Dr. Victor Tigga and Mr. R. Pandey did not grant any marks in academic qualification and research paper where as Mr. Brhamchari and Mr. Srikant Sharma have granted marks in academic qualification but in research paper no marks has been given which will be evident from the marks sheet submitted by respective persons. Dr. Shiv Jatan Thakur and Dr. Raj Mukul did not furnish marks awarded by them.
95. From the narration of facts as stated hereinabove there was no authorization of any final combined merit list up to 28.2.2012 apparently clear from the letter of Raj Mukul. So much so in meeting dated 4.2.2012 it was decided to cancel the tentative merit list. Thereafter there was no meeting, there is no sitting of the members. From the above facts it appears that marks for academic qualification and research paper were not collected.
96. The noting of the Vice-Chancellor also make it very clear that up to 28.2.2012 the direction was given to apprise the situation and after direction do needful. So apparently up to 28.2.2012 tentative merit list was never finalized, the appointment of the respondents on the basis of notification Patna High Court CWJC No.9167 of 2012 (12) 130 dated 2.3.2012 (Annexures-13, 14 and 14/A) are completely a doubtful document as it also creates a serious doubt about the combined merit list (Annexure-R3/A) where total marks in research paper has been shown against the name of respective persons whereas the document which has been produced, the situation is otherwise it completely discloses that no marks was given in research paper. Mr. R. Pandey (Mr. R.K.Pandey) and Prof. Victor Tigga granted marks only in interview, Prof. S.K. Brahamchari, Srikant Sharma and Chairman have granted marks in academic performance and interview. The signatures of Prof. Shiv Jatan Thakur at different pages of combined merit list do not tally to each other which can be verified from the naked eyes. In this view of the matter, this Court is of the view that Annexures 13, 14 and 14/A cannot be allowed to sustain in view of the facts as stated hereinabove.
4. Whether Acting Vice-Chancellor has power to discharge all duties as that of Regular Vcie-Chancellor:
97. The petitioners have raised the point that Dr. Arun Kumar was holding substantive post of Professor and discharging the duty of Acting Vice-Chancellor of B.N.Mandal University and later on he was asked to discharge Patna High Court CWJC No.9167 of 2012 (12) 131 the function as Acting Vice-Chancellor of Magadh University.
A plea has been taken that while performing the duty of Acting Vice-Chancellor he was only authorized to discharge the routine function and he could not have constituted the Selection Committee for the purposes of appointment of 22 Principals.
98. The claim is based on the judgment in the case of Ajaib Singh (supra) and in the case of Girja Shankar Shukla (supra). The University and other respondents have categorically repelled the argument of learned counsel for the petitioners and submitted that there is no difference in between the person appointed as full-fledged Vice-Chancellor and Acting Vice-Chancellor under any contingencies. The Acting Vice-Chancellor has all jurisdiction and authority to exercise all the power which could have been discharged by the regular Vice-Chancellor and submitted that Section 13 operates in the same field and in the same plenitude as Section 10 of the University Act does not prohibit that section 13 will not operate in the same field and length that of Section 10.
99. Now the question arises for consideration of power of Acting Vice-Chancellor as provided under Section 13 of the University Act. It will be necessary to closely examine the Patna High Court CWJC No.9167 of 2012 (12) 132 formulation of Sections 10 and 13 of the University act which stipulates the power of the regular Vice-Chancellor and the Acting Vice-Chancellor respectively. The power and function has been provided under Section 10 of the University Act. Under Section 10(3) of the University Act postulates that the Vice-Chancellor shall be whole time officer and shall hold office during the pleasure of the Chancellor. He will be the principal executive and academic officer of the University, the Chairman of the Syndicate and of the Academic Council, subject to the provisions of this Act, the Statutes and the Ordinance have power to make appointment to posts within sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University and have control and full disciplinary powers over such staff and servants. He has jurisdiction to call meeting of Senate, Syndicate committee and sub-committee constituted. He has powers to visit and inspect the Colleges and buildings, laboratories etc. and address the Principal of such College with reference to the result of such inspection or enquiry. Vice-Chancellor has an authority to issue direction from time to time and the Principal would be required to carry out Patna High Court CWJC No.9167 of 2012 (12) 133 direction of Vice-Chancellor. He has duty to exercise general control over the educational arrangement of University and shall be responsible to maintain the discipline of the University. It shall be lawful for the Vice-Chancellor to take all steps which are necessary for maintaining the academic standard and administrative discipline of the University.
100. From the analysis it appears that he possess immense executive power to control over the administration as well as academic function of the University and for that purposes he is omnipotent as well as omnipresent subject to the limitation provided under University Act, Statutes and Ordinance.
101. Section 13 of the University Act deals with the arrangement of work during the temporary absence of the Vice-Chancellor which has been dealt with in two parts. First part deal with vacancy created due to leave, illness or any other cause in that circumstances "Chancellor" make such arrangement for the performance of duties of the office of the Vice-Chancellor. Second contingencies has been dealt with in absence of resignation, death, completion of the term or any other reason in that circumstances also would make such arrangements for the performance of the duties of the office. The key word in Section 13 of the University Act is that Patna High Court CWJC No.9167 of 2012 (12) 134 "make such arrangements for the performance of the duties". The reason is that the office of the Vice-Chancellor is very important. It has to discharge different functions. In absence of the Vice-Chancellor, University will come to grinding halt and as such University without Vice-Chancellor should not remain vacant so that wheel of the University must move and as such, such arrangement has been made through under Section 13 of the University Act.
102. Case of Ajaib Singh (supra) is similar to the present fact as in that case one of the issue was raised while discharging the duty as District Magistrate on account of temporary vacancy could have signed the order of detention. In that case one Shri P.N. Bhalla was the District Magistrate of Amritsar in April, 1964. He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964 and at that time he was asked to hand over the charge to one Shri Lall Singh, the Additional District Magistrate and was invested power under Section 10(2) of the Code of Criminal Procedure. Accordingly he holds the current charge on the post of Deputy Commissioner, Amritsar till further orders. There the question arose whether Shri Lall Singh would be said exercising the power of the District Magistrate was Patna High Court CWJC No.9167 of 2012 (12) 135 authorized to sign the order of detention. The Hon‟ble Supreme Court held that the Act and Rules show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. The Court has said that there must be a notification under Section 10 of the Code of Criminal Procedure by the State Government appointing an officer as District Magistrate of district. In absence of such an order no officer can claim to be the District Magistrate of the district and order of detention signed by him was not sustainable in law. It will be apt to quote paragraph 9 of the aforesaid judgment:
"9. Two questions then arise on the view we hold that no officer below the rank of a District Magistrate can exercise the power of detention under the Act and the Rules. The first is whether Shri Lall Singh was the District Magistrate of Amritsar on June 30, 1964. Secondly if he was not the District Magistrate on that date, could he as Additional District Magistrate exercise the power of detention and that would depend upon whether an Additional District Magistrate is of the same rank as the District Magistrate or below him rank? Now S.10 (1) of the Code provides for the appointment of a District Magistrate and lays down that "in every district outside the presidency-towns, the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate." The appointment of a District Patna High Court CWJC No.9167 of 2012 (12) 136 Magistrate, therefore, has to be made under S.10(1). Section 10(2) then gives power to the State Government to appoint any Magistrate first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the State Government may direct. But even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force he is still not the District Magistrate unless the Government appoints him as such under Section 10(1) of the Code. Further S.11 of the Code envisages the contingency of the office of the District Magistrate becoming vacant. It provides that where this contingency arise, any officer succeeding temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District Magistrate. But even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under S.10(1) of the Code."
103. In the case of Girja Shankar Shukla (supra) as there was a conflict in two Division Bench judgment the question arose the person who has been appointed in current charge of duties of the Collector has authority to preside over the meeting whereby two persons were elected as President and Vice-President of the Municipal Corporation, Itarsi. In that case the Municipal Council was constituted after general Patna High Court CWJC No.9167 of 2012 (12) 137 elections of 1969. For electing President and Vice-President a notice convening the meeting on 10.7.1971 was issued by Shri Anand Mohan, Collector of the district as Shri Anand Mohan was proceeded for leave and remained absent on 10.7.1971 the meeting was presided over by Shri Arun Kumar Kshetrapal, Sub Divisional Officer, Harda who was current charge of the duties of Collector during that period by an order of the State Government. The question arose that the meeting dated 10.7.1971 should have been presided over by the Collector but it was actually presided over by the Sub Divisional Officer, claim was made that there was no valid elections held to these offices. In that case the court considered the conflict by two Division Bench judgments. One of the judgment was Ramratan‟s case, 1964 MPLJ 86= AIR MP 114. There the question was raised that Ramratan was dismissed by the Deputy Inspector-General of Police who was appointed to be in-charge of the current duties of the office of the Inspector General of Police in addition to his own office, was valid? The plea was taken that Deputy Inspector General of Police cannot be said to be holding the post of Inspector General of Police and as such the order of termination of service was not valid under Article 311(1) of Patna High Court CWJC No.9167 of 2012 (12) 138 the Constitution of India where a question was raised whether a sub-ordinate authority, who is not formally appointed to the post of the appointing authority either permanently or in an officiating capacity can be validly appointed to exercise the powers of dismissal in view of the inhibition contained in Article 311(1) of the Constitution. It was held that a protection under Article 311(1) cannot be taken away even by rules framed either under Article 309 or under any relevant statute. The reason has been assigned by the such rules, the sub-ordinate authority is entrusted with the functions of the appointing authority without giving him the rank of that authority. In clause (1) of Article 311, the word „subordinate‟ has reference to the rank and not functions and accordingly the same was declared to be bad but while considering Girja Shankar case (supra) the Court has held that where the holding of a particular rank is necessary to confer authority under the enabling provision, that power can be exercised only by the holder of that rank and none else. In paragraph 16 of the aforesaid judgment explaining Ramratan‟s case the Court has held that decision of Ramratan‟s applies only to situations like those under Article 311(1) of the Constitution or the Defence of India Act or Rules where the delegate is Patna High Court CWJC No.9167 of 2012 (12) 139 named and further delegation is prohibited, expressly or impliedly. In all such cases, emphasis is on rank, and the power can be exercised only by the holder of that rank. However, there are other categories of cases, like the present, where emphasis is not on rank but only on the authority to discharge a certain function. In this latter class of cases, all that has to be examined is whether the person discharging the impugned function is so empowered or not, there being no prohibition, express or implied, against delegation and there being no such emphasis on rank. In this category of cases it will depend on the nature of the function and the context in which the power is conferred. In every case the purpose and nature of the function, the provision conferring power and the context or setting in which it appears, have all to be seen in order to determine whether the power can be exercised only by the holder of a particular rank and none else. In paragraph 17 it has been held that a person appointed permanently or to officiate on a post holds that rank, whereas a person who is placed only in current charge of duties of a post does not hold that rank. Accordingly those functions or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post. Patna High Court CWJC No.9167 of 2012 (12) 140 Full Bench was considering its own judgment in the case of M.P. V. Gokul Prasad, reported in 1971 Lab IC 896 and imported paragraph 22 of the said judgment and quoted in affirmance is as follows:
" No doubt, the aforesaid decision in Ramratan‟s case also says that the person holding the current charge of the duties of a post can perform only the administrative functions but not the statutory functions pertaining to the post; but the observations, besides being obiter, may require reconsideration in an appropriate case because it is a bit difficult to understand that if such person cannot perform the statutory functions of the office, what else he can do. All the functions which the holder of post performs and all the duties which he discharges, whether administrative, executive, judicial or otherwise, own their origin to some Act, statutory rule or order, and there is no function which he can legitimately perform for which there is no sanction in some statute or statutory rule or regulation."
In view of the distinction already pointed out by me between the various functions attached to an office or post and the further fact that the holding of a particular rank is decisive of the validity of the exercise of some of them only, I would like only to add that such wide observations in Gokul Parasad‟s case were not justified. There is a clear distinction between the several functions that may be performed by an incumbent of a post and the origin and nature of the power in each case has to be examined before deciding whether it can be exercised only by a person holding that rank or it could be exercised even by a person holding the current charge of the duties of that post. The aforesaid wide, observations in Gokul Prasad‟s case, besides being abiter, are also not in conformity with the position in law as already discussed above. For Patna High Court CWJC No.9167 of 2012 (12) 141 these reasons I am of the view that the decision of the Division Bench in Ramratan‟s case is correct and continues to be good authority in respect of those cases where holding a particular rank is necessary for exercise of the power, and that the doubt expressed against the same in Gokul Prasad‟s case is unfounded to this extent.
104. There the Court was considered the provision of Section 55 of the M.P. Municipality Act and held that there is no prohibition either express or implied, contained in the Act to suggest that such a function can be discharged only by an Officer holding the rank of Collector and one else. Therefore, the only question to be determined is whether Shri Arun Kumar Kshetrapal, who held the rank of Sub Divisional Officer, Harda, while placed in the current charge of the duties of the office of Collector could validly perform the function of presiding over the meeting held on 10.7.1971 and ultimately the Court was of the view that Kshetrapal was competent to preside over the meeting hold on 10.7.1971 as he was the Collector of the district within the meaning of that expression as used in sub-section (3) of Section 55 of the Madhya Pradesh Municipalities Act, 1961. Accordingly election of all candidates held in that meeting was valid and suffered from no infirmity.
105. So in that case two distinctions have been made Patna High Court CWJC No.9167 of 2012 (12) 142 whether the function or power of the post is dependent on rank cannot be discharged by a person who is placed only in current charge of duties of that post. A person appointed permanently or to officiate on a post hold that rank, another a person is placed only in current charge of duties of that post, does not hold rank. The emphasis on "person" of that "rank".
106. In Section 2(aa) of the University Act the Vice- Chancellor means the Vice-Chancellor of the University. Section 13 (1) of the University Act deals with contingencies arising out of leave, illness, resignation, death and on completion of the term or any other reason the vacancy is caused to the post of Vice-Chancellor in that emergent situation the Chancellor has been given power to make such arrangement for the performance of duties of the Vice- Chancellor as he deemed fit.
107. Here is the question, the arrangement was/is to be made for the performance of duties of the Vice-Chancellor. Section 13 of the University Act does not create any inhibition in performance of any of the duties of any nature mentioned in Section 10 of the University Act. Section 13 of the University Act does not create any rider that the person appointed as Acting Vice-Chancellor in a particular emergent Patna High Court CWJC No.9167 of 2012 (12) 143 situation will discharge the function of the routine nature but it has been conferred he will discharge the duties of the office of the Vice-Chancellor. Section 10 read with Section 13 of the Act does not provide, a person appointed as Acting Vice Chancellor should be in the rank to Vice-Chancellor. This Court is of the view that in view of the Full Bench judgment of M.P. High Court and on considering the words and phrase used in Section 13 of the University Act this Court finds that the person appointed as Acting Vice-Chancellor in exercise of power under Section 13 of the University Act cannot be said that he would only discharge on day to day routine nature of function not the function mentioned in Section 10 of the University Act. If he will not allowed to do such function, then what he will do? So much so constitution of Selection Committee cannot be said to be a major function of the Vice- Chancellor such as taking a policy decision of the University. This Court is of the view that the action of Dr. Arun Kumar in constituting the Selection Committee cannot be said to be bad in law, so much so, in view of the direction of the Hon‟ble Supreme Court to conduct the interview and published the same within the time framed mentioned in the order. Accordingly this issue goes against the petitioners. Patna High Court CWJC No.9167 of 2012 (12) 144
5. Whether the Selection Committee acted properly in granting marks.
108. One of the point that has been raised by the petitioners as well as by Dr. Shiv Jatan Thakur that those persons having a poor performance in academic career they have been granted higher marks in the interview whereas those who were excellent in the academic career were granted poor marks with a view to accommodate the candidates. Granting of marks lies within the domain of the expert. The courts are not expert or having an expertise to say that particular marks granted to the particular candidates is not in consonance with the performance of the academic career. The court cannot substitute wisdom of the Selection Committee. The Court while exercising the power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as matter lies within the province of either, and that the court does not supplant the "feel of the expert" by its own review. In all such cases judicial examination is confined to find out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. The Court can interfere when the findings are perverse and basis of assessment is de hors to the Patna High Court CWJC No.9167 of 2012 (12) 145 statute and the action is irrational on the on the thread of wednesbury unreasonableness. Meaning thereby the decision is so outrageous in defiance of its logic or on all accepted material and standard no reasonable person who had applied his mind to the question to be decided would have arrived it. It will be relevant to quote paragraph nos. 27 and 28 of the C.W.J.C. No. 13083 of 2012 (Diwakar Paswan & others V. The State of Bihar & others):
"27. This Court can only consider under the judicial review the decision making process not the decision unless the same suffers from illegality, irrationality (wednesbury unreasonableness) and procedural impropriety.
28. It is well settled principle of law that in the academic matters, unless there is clear violation of statutory provisions, the regulations or the notification issued, the courts should keep their hands off since those issues fall within the domain of the experts. The Court shall not generally sit in appeal over the opinion expressed by the expert of academic bodies normally it is wise and safe for the court to leave the decision in the hand of academic expert who are more conversant with the problem they faced and allow the expert body to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research but in certain cases the court may interfere when a case has been made out the decision, and action is tainted by malpractice, fraud or corrupt method has been applied in holding the examination and publication of the result."
109. Reliance can be placed to following judgments: Union of India Vs. S.B. Vohree, 2004 (2) SCC 150, Sri Sitaram Patna High Court CWJC No.9167 of 2012 (12) 146 Sagar Mill V. Union of India, 1990(3) SCC 223, Than Singh Nathmal Vs. Union of India, A.I.R.1964 SC 1419, Heinz India Private Ltd. and another V. State of Uttar Pradesh, 2012(5) SCC 443, School Examination Board Vs. Subhash Chandra Sinha, A.I.R. 1970 SC 1269
110. In the present case this Court has examined the persons who have been declared selected having been given marks in the interview. It will be appropriate to scrutinize the manner and mode adopted in granting marks in the interview as for an example Dr. Mahesh Prasad Trivedi, application no.88 having 67 marks in academic career has been given 7 marks in interview. One Dr. Narendra Kumar, application no.194 having 65 marks in academic career has been given 9 marks in interview and Dr. Poonam, application no. 231 having 62 marks in academic career has been given 12 marks in interview. Admittedly those persons have better academic career than to Dr. Rajesh Sukla, application no.67 having 60 marks in the academic career and in interview he was granted 17 marks. Similarly Pushpendra Kumar Verma, application no.67 having 61 marks in academic career was granted `15 marks in interview, whereas Sri Jawahar Prasad Singh, application no.106 and Dr. Om Prakash Singh, application Patna High Court CWJC No.9167 of 2012 (12) 147 no.206 both had identical marks of 58 in academic career and both were granted 17 marks in interview. Trend of marks shows, persons having good academic career have been subdued and persons having poor academic performance were allowed advantageous marks. Earlier occasion also the Court has found this anomaly and that was one of the ground for quashing the selection. As the present selection is shrouded with mystery as combined merit list shows marks in research paper when no marks was granted by any of the expert and there is allegation of malafide in the matter granting marks as well as in as well as in the manner interview was conducted and combined merit list was prepared. Two persons did not sign the combined merit list. Those two persons namely, Dr. Thakur and Dr. Raj Mukul did not furnish marks and later on have withdrawn their signatures. In that circumstances the manner the interview was conducted and marks were granted, does not inspire any confidence and this Court is of the view that the manner entire thing was conducted and the manner the marks were granted no prudent person can inspire faith supplemented by the charges that have been leveled by Dr. Thakur consolidates the view of irregularities/illegality committed in the manner marks were granted to the Patna High Court CWJC No.9167 of 2012 (12) 148 candidates. On conspectus whole spectrum this Court is of the view that the marks were not granted in fair and proper manner rather person having good academic qualification they were marginalized as well as the person did not have a good academic career in order to accommodate they were given very handsome marks in interview. This issue goes in favour of the petitioners and decided against the respondents.
6. Estoppel and acquiescence:
111. One of the point that has been raised by the respondent that as the petitioners participated in the selection process without any demur when they could not be selected they will not be allowed to take round and challenge the whole selection process. In nutshell the claim has been made that there is stopple and acquiescence against the petitioner to challenge the selection process as well as result came out from that selection process.
112. The question as to whether the candidates who have got more marks in academic career, assessed by the expert committee in interview was not granted marks to their expectation, merely on the basis of the petitioners apprehension or suspicion they were given less marks at oral interview, can it be said that the process of selection was Patna High Court CWJC No.9167 of 2012 (12) 149 vitiated, in a situation, when there is no whisper in the petition about the personal bias of member of the interview committee against the petitioners. It is apt to quote paragraph 10 of the judgment in the case of Madan Lal (supra):
"10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenged only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such a expert committee."
113. The Hon‟ble Supreme Court in the case of Basavaiah (Dr.) (supra) has held that when selection is made by the Commission aided and advised by experts having technical experience and high academic qualification in the specialist field, probing teaching/research experience in technical subjects, the courts should be loath to interfere with the Patna High Court CWJC No.9167 of 2012 (12) 150 opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problems than the courts generally can be. It has further been held that court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
114. In the present case most of the members of the selection committee itself raising the question of authenticity and correctness in giving marks in interview so much so also in the present case the Government on the basis of the information received the whole matter has been sent for investigation by the vigilance on the complaint made by Dr. Shiv Jatan Thakur. Normally this Court would not have interfered in the manner marks were given.
115. In the case of K.A. Nagmani Vs. Indian Airlines and others, reported in (2009) 5 SCC 515 where the Hon‟ble Supreme Court in paragraph 54 has held that the candidate having participated in the selection process along with contesting respondents without any demur or protest cannot Patna High Court CWJC No.9167 of 2012 (12) 151 be allowed to turn round and question the very same process having failed to qualify for promotion. In paragraph 55 relying on the judgment of Madan Lal (supra) quotted in affirmance that "..... It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair.... Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who take a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful." In those cases there was no inherent defect in constitution of Selection Committee or the Selection Committee was constituted de horse to the provisions of law but in a situation when the Selection Committee itself was constituted against the provisions of law and pulpably wrong, the selection committee cannot be sustained in view of violation in that circumstances merely the persons have participated in the interview, cannot be stopped to challenge the selection process. The constitution of Selection Committee is not known to public rather it was confined to the knowledge of some individuals so much so that there is allegation Patna High Court CWJC No.9167 of 2012 (12) 152 biasness and favoritism which has been supported by some members of Selection Committee and combined merit list was never finalized. In case of inherent defect in constitution of Selection Committee parties cannot be non-suited on the ground of estoppel and acquiescence. It will be apt to quote paragraph 16 of the judgment of Raj Kumar and others V.Shakti Raj and others, reported in (1997)9 SCC 527:
"16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal V. State of J & K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenged either the constitution of the Selection Board or the method of selection as being illegal; he is stopped to question the correctness of the selection. But in this case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the Patna High Court CWJC No.9167 of 2012 (12) 153 selection in accordance with the rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
116. Similar view has been reiterated in the case of Dr. Bijayananda Kar (supra). It will be apt to quote paragraph 9 of the aforesaid judgment:
"9. This Court has repeatedly held that the decisions of the academic authorities should not ordinarly be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not in a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection. In the present case Dr. Kar in his representation before the Chancellor specifically raised the issue that Dr. Mohapatra did not possess the specialization in the „Philosophical Analysis of values‟ as one of the qualifications. The representation was rejected by the Chancellor. We have no doubt that the Chancellor must have looked into the question of eligibility of Dr. Mohapatra and got the same examined from the experts before rejecting the representation of Dr. Kar."
117. In view of the above discussions when this Court itself has held that constitution of the Selection Committee has been Patna High Court CWJC No.9167 of 2012 (12) 154 constituted illegally against the provisions of Section 57 of the University Act read with Clause 7(i) of the Statute in that circumstances the question of application of stoppel and acquiescence against unsuccessful candidate will not be applicable and as such the point raised by the respondents of dismissal of application on the score of stopple and acquiescence is not sustainable in the facts and circumstances of the present case.
118. One of the points has been raised that the result has been published after taking approval of Syndicate and as such it does not require interference as one of the body of University did not find any illegality. In view of the aforesaid discussions this Court is not required to decide the issue for the present. One of the point that has been raised by one of the respondent, of the application of "defacto doctrin" is not applicable to the present situation when the constitution of Selection Committee itself is bad so much so when there is allegation of malafide, favoritism and the combined merit was never finalized as has been explained in earlier paragraph of this judgment. Process of selection was not conducted in a fair manner. There is allegation of malafide against the official of Patna High Court CWJC No.9167 of 2012 (12) 155 the university in manipulating the result itself.
119. In this view of the matter, the issue of defacto doctrine will not save the result by which 22 candidates were selected as Principals of different constituent Colleges.
120. In view of the aforesaid discussions, the combined merit list (Annexure R3/A attached to the counter affidavit of the University (respondent nos. 3 to 5) does not survive. In consequence thereof the appointment and posting made by the University vide notification as contained in Memo No. IGen(I)548/11/99/GIA/12 dated 2.3.2012 (Annexure-13), notification vide Memo No.1(Gen(1)/548/11/100/GIA/12 dated 2.3.2012 (Annexure-14) and notification vide Memo No.1Gen(I)548/11/128/GIA/12 dated 23.3.2012 (Annexure14/A) are hereby quashed and the Vice-Chancellor of the Magadh University is directed to conduct fresh interview and prepare the combined merit list according to merit from amongst those who had applied pursuant to the advertisement dated 25.10.2008 (Annexure-1) strictly in accordance with relevant statute, rule and regulation. The University shall complete the process of selection within six months from the date of order. Till then the persons who have been appointed as Principals through Annexures 13, 14 and Patna High Court CWJC No.9167 of 2012 (12) 156 14/A will continue for the present posting but they will perform routine work not take any major decision or will not deal with the financial matter except routine of the respective Colleges. This order will not create any equity in favour of any of the persons who have been allowed to continue to the posts of Principals of the respective Colleges. The Vice Chancellor before conducting fresh interview will constitute fresh Selection Committee, strictly in terms of Section 57 of the University Act read with provisions of Clause 7 of the Statute dated 30.6.2008.
121. With the aforesaid observations and directions this writ petition is allowed.
C.W.J.C. No. 15854/2012 With C.W.J.C. No.17027 of 2012
122. In view of the judgment and order passed in C.W.J.C. No.9167 of 2012, now nothing survives for adjudication.
123. Accordingly these writ petitions are disposed of.
C.W.J.C. No.13698 of 2012.
124. In this writ petition also prayer has been made to quash the selection and panel prepared by the University. This issue has already been discussed and decided in the judgment and order passed in C.W.J.C. No.9167 of 2012. So judgment Patna High Court CWJC No.9167 of 2012 (12) 157 and order given hereinabove will be applicable to this case also and there is no need to discuss and decide the present writ petition.
125. Accordingly this writ petition is disposed of.
Vinay/- (Shivaji Pandey, J) U