IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.822 of 2011
IN
(CIVIL WRIT JURISDICTION CASE 8141/2010)
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Subhas Prasad Sinha S/o Shri Ram Nandan Sinha the Vice Chancellor Veer
Kunwar Singh University, Ara, resident of Sheo Puri, PS Shastri Nagar, Town
and District- Patna …. …. Appellant
Versus
1. Dr. Pramod Kumar Singh, son of Late Rajeshwari Prasad resident of
Mohalla- Gourakshani, PO & PS Sasaram, District Rohtas and a University
Teacher under V.K.S. University, Ara
2. Dr. Ram Tabkya Singh, son of Late Jageshwar Singh, resident of Mohalla-
J.P. Nagar, PO & PS Nawada (Ara), District Bhojpur and a University
Teacher under V.K.S. University Ara and University Professor and Head of
PG Department of Chemistry
3. The State of Bihar through the Secretary (Higher Education) Human
Resources Department, Government of Bihar, Patna
4. The Chancellor of Universities, Raj Bhawan, Patna
5. The Vice Chancellor, Magadh University, Bodh Gaya
6. Sri Arbind Kumar, Vice Chancellor of Magadh University, Bodh Gaya,
District Gaya
7. The Vice Chancellor, Veer Kunwar Singh University, Ara
8. Inspector General Vigilance, State of Jharkhand, Ranchi … …. Respondents
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With
Letters Patent Appeal No. 824 of 2011
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(Dr.) Arvind Kumar, V.C. Magadh University, Bodh Gaya, S/o Late B.D. Sinha,
resident of Vice Chancellor’s Residence, Mohalla- Rampur, PO Rampur, PS
Rampur, District Gaya …. …. Appellant
Versus
1. The State Of Bihar through the Chief Secretary (Higher Education), Human
Resources Development Department, Government of Bihar, Patna.
2. The Chancellor of Universities, Raj Bhawan, Patna
3. The Vice Chancellor, V.K.S. University, Ara
4. The Vice Chancellor, Magadh University, Bodh Gaya, District Gaya
5. Dr Subhash Prasad Sinha, S/o not known, Vice Chancellor, Veer Kunwar
Singh University, Ara
6. Inspector General- Vigilance, State of Jharkhand, Ranchi
7. Dr. Pramod Kumar Singh, S/o Late Rajeshwari Prasad Singh, resident of
Mohalla- Gaurakshni, PO & PS Sasaram, Distt- Rohtas and a University
Teacher under V.K.S. University, Ara
8. Dr. Ram Tawakiya Singh, S/o Late Jageshwar Singh, resident of Mohalla- J.P.
Nagar, PO & PS Nawadah (Ara), District Bhojpur and a University Teacher
under V.K.S. Ara and University Professor and head of P.G. Department of
Chemistry. …. …. Respondents
2
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Appearance:
For the Appellant (LPA No. 822 of 2011):Mr. Shravan Kumar, Sr. advocate
Mr. Birendra Narayan Sharma, advocate
For the Appellant (LPA no. 824 of 2011): Mr. Shashi Anugraha Narayan,
Sr. Advocate,
Mr. Mrigendra Kumar and
Mr. Navin Prasad Singh, advocates
Mr. Narayan Singh, Advocate
For the State of Bihar (in both cases): Mr. Lalit Kishore AAG 1
Mr. Shivam Singh, AC to AAG 1,
Mr. Vikash Kumar AC to AAG 1
Mr. Girjesh Kumar, AC to AAG 1
For the Chancellor (in both cases): Mr. Amarnath Singh, advocate
Mr. Ajatshatru, advocate
For the Magadh University: Mr. Abhay Singh, Sr. advocate
Mr. Hansraj, advocate
For Veer Kunwar Singh University: Mr. Yugal Kishore, Sr. advocate,
Mr.Ajay Bihari Sinha, advocate
Mr. Sunil Kumar Mandal, advocate
For the State of Jharkhand (Vigilance Bureau): Mr. Dhruba Mukherjee, advocate
For private respondents: Mr. Rajendra Prasad Singh, Sr. advocate
Mr. Sunil Kumar Singh, advocate
Mr. Amresh Kumar Singh, advocate
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CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH
And
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH)
Since both the Letters Patent Appeals arise
out of the same judgement dated 4-5-2011 allowing
CWJC no. 8141/2010, they have been heard together
3
and are being disposed of by this common judgment.
2. The main dispute is on account of
appointment of appellant Subhash Prasad Sinha and
appellant Arvind Kumar on the post of Vice Chancellor
of Veer Kunwar Singh University, Ara and Magadh
University, Bodh Gaya vide orders of appointment
dated 9-4-2010 and 15-4-2010 respectively which have
been issued by the Principal Secretary to the Governor-
cum- Chancellor under the orders of the Chancellor, the
appointing authority u/s 10 (2) of the Bihar State
Universities Act, 1976 (hereinafter referred to as the
“Act”). The real controversy between the parties is
whether it is necessary or mandatory for the Chancellor
to appoint Vice Chancellor in consultation with the
State Government and whether there was such a
consultation as provided u/s 10 (2) of the Act for
appointing the appellants as Vice Chancellors. The writ
court has held that the requirement of consultation is
mandatory and there was no consultation for
appointment of the appellants and, hence, their
appointments are fit to be quashed as void ab initio.
4
3. Since the main controversy and vital
issues relate to Sub-section (1) and (2) of Section 10 of
the Act, it will be useful to extract the same for easy
reference.
“10. The Vice Chancellor.- (1) No person
shall be deemed to be qualified to hold the
office of Vice – Chancellor unless such
person is, in the opinion of the Chancellor,
reputed for his scholarship and academic
interest, and no person shall be deemed to
be qualified to hold the office of the Vice-
Chancellor of the Kameshwar Singh
Darbhanga Sanskrit University unless such
person is, in the opinion of the Chancellor,
reputed for his scholarship in Sanskrit or
has made notable contribution to Sanskrit
education.
(2). The Vice- Chancellor shall be
appointed by the Chancellor in
consultation with the State Government.”
4. Before adverting to the detailed
arguments advanced on behalf of appellants and the
respondents, the relevant facts may be noticed in brief.
5. The writ petition was filed on 6-5-2010
by two respondents herein, Dr. Pramod Kumar Singh
and Dr. Ram Tawakiya Singh, both University
5
Teachers under Veer Kunwar Singh University, Ara.
They prayed for cancellation of appointments of both
the appellants on the post of Vice Chancellor and also
for cancelling similar other appointments, if any, in the
Universities of Bihar on the allegation that they were
illegal appointments. They prayed to make fresh
appointments of genuine and reputed scholars in the
various Universities of Bihar on the basis of
recommendation of the State Government after
considering the inter-se merit of all the applicants. They
also prayed for directing the respondents to ensure that
all appointments on the post of University officers, that
is, Inspector of Colleges, Registrar etc. are also made in
compliance of Article 16 of the Constitution of India
after inviting applications from eligible candidates and
then selecting the best. According to writ petitioners the
merit for the post of Vice Chancellors and other
University Officers should be reckoned on the basis of
“published work” (books/ research papers). The main
point raised on behalf of writ petitioners was whether
the appointments made are illegal and against the
6
provisions of sub section (2) of Section 10 of the Act.
6. The writ petitioners claimed to be
aspirants for the post of Vice Chancellors and that they
had submitted application/ bio data for that purpose
before the concerned authorities of the State of Bihar as
well as the Chancellor of Universities. According to
them the appellants were illegal appointees and did not
deserve the post. Originally, the appellants were
impleaded in their official capacity by their designation
but later, after obtaining the orders of the Court they
were impleaded by name in their personal capacity.
Both the appellants claimed to be reputed scholars and
men of academic interest. Appellant Subhash Prasad
Sinha has claimed that he had also submitted his bio
data to the Minister, Human Resources Development
Department, Government of Bihar as well as to the
Chancellor and that his name was included in the panel
prepared by the Minister, Human Resources
Development Department on 15-1-2010 and the panel
was sent to the Chief Minister, Bihar on 19-1-2010
where it remained pending till 14-4-2010. This stand
7
is supported by relevant letters and notes in the
connected files which have been brought on record as
annexures. While, admittedly, the panel or the names
which the State Government or the concerned Minister
wanted to be considered during consultation for filling
up the posts of Vice Chancellors in various Universities
of Bihar remained pending for approval of the Chief
Minister till 14-4-2010, a meeting between the
Governor and the Minister took place on 29-3-2010.
The agenda of that meeting is available on record and
has been extracted by the writ court at pages 20 and 21
of the judgement under appeal. It shows that the
relevant file related to a Bill for constitution of a
Tribunal for settling certain disputes and conflicts
among the employees and teachers of Universities and
Colleges. The Bill had been resent to the Governor for
considering the views of the government. On the
margin of the pages of relevant file bearing file no.
Act- 01/ 10 which had been called by the writ court for
perusal, the Governor/ Chancellor has recorded his
minutes in hand on 29-3-2010 at 7.30 PM. The typed
8
copy of this minutes signed by the Governor, Bihar is
extracted as page 22 of the judgement under appeal.
These have been noticed because the learned counsels
for appellants, the Universities and for the Chancellor
have relied heavily upon the minutes in support of their
case that there was a consultation between the State
Government and the Chancellor as required by Section
10 (2) of the Act.
7. After appointment of Vice Chancellor of
Veer Kunwar Singh University, Ara on 9-4-2010, the
Chief Minister, Bihar made a query on the file relating
to panel of names under preparation for consultation, as
to who had been consulted in relation to the said
appointment. In reply, the Minister, Human Resources
Development Department gave a note on 19-4-2010
that the department had long back requested the
Chancellor to initiate the process but no consultation in
the light of the Act had taken place at any level of his
department and the Chancellor. The Minister in his
notes categorically mentioned that for filling up the
vacant posts of Vice Chancellors in the Universities of
9
Bihar no talks had taken place between him and the
Chancellor. On the same date the Secretary of Human
Resources Development department issued an order
mentioning the fact that the Vice Chancellors of
Magadh University, Bodh Gaya and Veer Kunwar
Singh University, Ara had been appointed without
consultation as envisaged under the Act and, therefore,
the State Government was considering the validity/
procedural deficiency of the said appointments and the
issue was under consideration. Pending such
consideration and till final view could be taken by the
State Government the two Vice Chancellors were not
to exercise any financial powers and they were not to
take any decision having any financial implications. On
26-4-2010 the Secretary issued another order reiterating
the earlier order and it was clarified that financial
decision shall be taken by the pro Vice Chancellors.
Payment of salary of both the newly appointed Vice
Chancellors was also ordered to be stopped.
8. The relevant notings on the file show that
the Chancellor’s office stuck to its stand that
10
consultation had already taken place and there was no
need for reconsideration. For sending appropriate reply,
the Secretary of the department on 8-6-2010 placed the
matter before the Minister who in his note dated
9-6-2010 wrote that on 29-3-2010 discussion between
him and the Chancellor was confined to constitution of
University Tribunal and no talks had taken place for
filling up the vacancies for the vacant posts of Vice
Chancellors and pro Vice Chancellors.
9. Thereafter the Chief Minister met the
Chancellor on 10-6-2010 to ascertain the views of the
latter in respect of the appointments in question and
then on 12-6-2010 he recorded his minutes that the
Chancellor informed him that he had talked with the
Minister, Human Resources Development department
in respect of appointment of the two Vice Chancellors
although the Minister had informed the Chief Minister
differently and had also written in the file that he had
no talks with the Chancellor with respect to the related
matter. The Chief Minister further recorded that
considering the manner in which the Governor had
11
described his talks with the Minister, there could be no
justification for keeping the matter alive and it would
be a proper step to accept the decision taken by the
Governor as Chancellor. This note has been subject of
rival interpretations and contentions and, hence, it will
be considered further while dealing with the detailed
submission of the parties.
10. In view of stand of the Chief Minister,
the letters issued by the Secretary, Human Resources
Development department dated 19-4-2010 and
26-4-2010 were withdrawn by order of the Principal
Secretary of that department on 13-6-2010. On the
basis of minutes of the Chief Minister and the letter
dated 13-6-2010 the appellants have seriously raised
another issue. According to them the Chief Minister’s
views amount to an acceptance that there was a
consultation earlier on 29-3-2010 between the
Chancellor and the Minister and in that view of the
matter the writ court had no occasion to decide the
issue any further because, according to appellants, the
lis came to an end. In the alternative, it was contended
12
that the talks between the Chief Minister and Governor
itself amounted to subsequent consultation and that
would cure the defect of consultation, if any. This
contention would also be considered later at appropriate
stage.
11. The issues, as per their significance may
be noted in the following sequence:- (1). Whether the
consultation required u/s 10 (2) of the Act is directory
or mandatory, (2) Whether there was consultation
between the Chancellor and the State Government for
appointing the appellants as Vice Chancellors and (3)
whether the minutes of the Chief Minister dated
12-6-2010 would be conclusive for determining as to
whether the consultation required by law took place or
not or whether it shows fresh consultation so as to cure
the defect of lack of consultation, if any. Some other
ancillary issues were raised by the parties relating to the
aforesaid issues and they will be discussed at
appropriate stage.
Issue No.1: Whether consultation u/s
10(2) of the Act is mandatory or directory-
13
12. The stand of the appellants is that
although sub section (2) of Section 10 uses the word
“shall”, it does not make the requirement of
consultation with the State Government in the matter of
appointment of Vice Chancellors mandatory for the
following reasons:-
(i) Under Section 10 (1), the Chancellor has
been named as the sole authority for deciding
who shall be deemed qualified to hold the
post of Vice Chancellor,
(ii) Under sub section (2) of Section 10 the
Chancellor has been made the sole
appointing authority,
(iii) The Act itself is self contained code wherein
the University with Chancellor as its head
has been created as an autonomous body.
The State Government has been assigned a
limited role in financial or budgetary matters
including the matter of creation of teaching
or non teaching posts. Although consultation
with the State Government is required in the
14
matter of appointment and removal of Vice
Chancellors as well as in appointment of Pro
Vice Chancellors, the Act grants primacy to
the Chancellor and only his decision is
important and binding.
(iv) The Act does not lay down any consequence
of non compliance with the requirement of
consultation.
Learned counsels for the two
Universities have adopted the aforesaid stand of the
appellants.
13. Learned counsels appearing for the writ
petitioners and learned AAG 1 appearing for
the State, however, have taken a contrary
stand. According to them the provision for
consultation is mandatory because;- (1) The
word “shall” generally as well as by its
ordinary grammatical meaning renders the
required action mandatory,
(2) There is no suitable or good reason why the
ordinary grammatical meaning of the word
15
“shall” should be replaced by reading it as
“may”,
(3) The words used, nature, context and object of
the provision in Section 10 (2) make the
requirement of consultation mandatory,
(4) The old Acts, that is, the Bihar State Universities
(Bihar, Bhagalpur, Ranchi University) Act,
1960, the Magadh University Act of 1961 and
other Acts also relating to different
Universities which have been replaced by the
Act of 1976 vested the power of appointment
of Vice Chancellors in the Chancellor of the
Universities without any requirement of
consultation with the State Government. The
Legislature, on account of experience, in its
wisdom has now introduced the requirement of
consultation under the Act as well as in the
Patna University Act, 1976. Such deliberate
introduction indicates that the consultation has
been given clear importance and significance.
It takes care of mischief or perceived mischief
16
in the earlier Acts and, hence, must be treated
to be mandatory.
14. Various judgements cited by the parties
on this issue show that there is no conflict of opinion so
far as general principles are concerned. The relevant
judgments cited for explaining the concept of Mandatory
and Directory provisions or treating “shall” as
Mandatory are:- 1.(2009)7SCC 1 N.Kannadasan V. Ajoy
Khose, 2. AIR 1958 SC 419 K.S. Srinivasan V. Union of
India, 3. AIR 1961 SC 1480 M/s Sainik Motors V. State
of Rajasthan, 4.AIR 1966 SC 1987 Chandra Mohan V.
State of U.P and 5.AIR 1994 SC 268 S.C. Advocates-on-
Record Assn. V. Union of India. Some other judgements
cited on behalf of appellants in support of the proposition
that provision for consultation should not be treated as
mandatory have been dealt with separately hereinafter.
Learned AAG 1 placed special reliance
upon the case of Shri Mandir Sita Ramji V. Governor
of Delhi & Ors., AIR 1974 SC 1868 and upon the case
of State of U.P. V. Singhara Singh, AIR 1964 SC 358
in support of the proposition that if the statutory
17
provision uses the word “shall” while prescribing a
procedure for appointment or for doing of any other
important work then such provision should be
considered as mandatory.
15. From the general principles it follows
that for forming a definite opinion as to whether a
particular provision such as one for “consultation” is
mandatory or not, the words of the Statute, the nature
of concerned duty and responsibility, the context in
which the provision appears and its object have to be
kept in mind. If the consultation is prior or it is to
secure a fair procedure and its disregard may affect
fundamental rights, the requirement of consultation is
mandatory. It is also mandatory where the advice or
opinion binds the authority who is to propose for
consultation to seek opinion or advice. However, if the
opinion or advice is not binding, the proposer after
seeking the opinion or advice by way of consultation
may take a contrary decision and in that eventuality,
the decision may not be illegal or void. It is also well
recognized in law that if a Statute lays down the
18
manner of doing something, it must be done in that
manner or not at all.
16. The mischief rule is well known as one
of the principles of interpretation. If the Legislature
changes the earlier law by providing safeguard like
consultation with another authority, clearly a mischief or
likely mischief in the estimate of the Legislature is
sought to be remedied. Such provisions introduced by
way of remedy cannot be easily disregarded as trivial or
unimportant and, hence, they are generally treated as
mandatory. In this context learned AAG 1 has relied
upon the following three judgements of the Supreme
Court:- 1. (1992) 4 SCC 80 Mohan Lal Tripathi V.
District Magistrate, Rai Bareilly, 2. AIR 1974 SC 1708,
R.B.M.B Mills V. Govind Ram Bros. and 3. (1988) 4
SCC 108 Jayawant S. Kulkarni V. Minochar D. Shroff.
These judgements support the aforesaid proposition put
forward on behalf of the State.
17. The Universities under the Act are
autonomous bodies and the Act is a complete code in
which the Chancellor enjoys unique primacy having
19
administrative as well as adjudicatory roles. The
purpose of making the Universities autonomous and
free from day to day control of the State Government is
quite understandable. Day to day control and care of
higher education has been kept insulated and free from
political expediency and compulsions. The role of Vice
Chancellor is that of Chief Executive Officer of the
University. The Chancellor is superior but his powers
are generally supervisory. He grants approval to the
Regulations and Statutes framed by the bodies of the
Universities, reviews decisions where grievances are
brought to him by the teachers or other employees and
issues necessary directions wherever deemed
necessary. The Governor of the State is the ex-officio
Chancellor of the Universities. The Governor of a State
is head of the executive of the State and in all normal
situations he is required to act on the aid and advice of
the State Government. Any citizen of India who has
completed 35 years of age is eligible for appointment
as Governor. On the other hand the Vice Chancellor is
a whole time officer who has to take care of
20
Academics, run the day to day affairs of the University
as well as plan its development. Hence, he is required
to be a person “reputed for his scholarship and
academic interest”. The search for a suitable person to
head a University as its whole time officer, in the
context of the Act as well as Section 10 of the Act, is a
task of utmost significance and importance. That
appears to be the reason why need for consultation
with the State Government was introduced in the Act.
On applying well accepted canons of interpretation of
law including the Mischief Rule, and on consideration
of the words used, the nature of the Statute and context
relating to consultation and its object, the requirement
of consultation u/s 10 (2) of the Act has to be held as
mandatory.
18. The word “shall” is only indicative. The
need of consultation is between two constitutional
authorities, one is the Chancellor whose role has been
noticed above and the other is the State Government
which has a high stake in ensuring that standard of
higher education in the State is maintained and the
21
hundreds of crores of rupees allocated to the
Universities every year are well utilized by
appointment of suitable persons who are not only
reputed for their scholarship and academic interest but
can also be good administrators, capable of
safeguarding the finances and interests of the
Universities. The Governor as Chancellor does not
have the elaborate requisite machinery to enable him to
form the appropriate opinion for appointing persons as
Vice Chancellors and this is adequately taken care of
by providing consultation with the State Government.
The nature of duty of both the Constitutional
authorities in this context is to promote public interest
and interest of higher education by selecting and
appointing best persons available out of eligible
candidates. To achieve this object the stipulated
consultation has to be effective. It is not only desirable
but clearly a must, before selection and appointment.
19. Though the judgement of the Supreme
Court in the case of Indian Administrative Service
(S.C.S.) Association vs. Union of India (1993 )1 Supp.
22
SCC 731 has been cited on behalf of the appellants, a
careful perusal shows that the settled principles as to
what shall constitute consultation and when it is
mandatory do not support the case of the appellants.
The judgement approves that prior consultation is
mandatory and more so if its violation would affect
fundamental rights or fair procedure. In the present
case, the dispute whether opinion or advice of the State
Government will bind the Chancellor or not is not at
all in issue. The controversy is in respect of earlier
stage- as to whether the State Government should have
adequate opportunity to give its opinion or advice in
respect of the appointees. The procedure and details as
to who shall be taken into consideration on account of
eligibility and who shall be selected out of eligible
persons has rightly not been prescribed by the Act
because the appointment and consultation process has
been left in the hand of high Constitutional
functionaries. Nonetheless, like any selection process it
must be fair. Consultation with the State Government
has been introduced by the Legislature with the
23
obvious aim of making the selection procedure wider
in ambit, deeper in contents, transparent and fair. The
State Government has the means to render intensive
and extensive information and input in course of
consultation. The consultation in such important matter
and at such high level needs to be effective so that after
the Chancellor has made tentative choice on
considering the entire information and input given by
the State Government, the latter may provide further
relevant information, if available, in respect of
tentatively selected persons, in order to avoid the risk
of Universities being placed in the hands of wrong
persons or unsuitable persons.
20. The judgement of the Supreme Court in
the case of Administrator, Municipal Committee,
Charkhi Dadri and another Vs Ramjilal Bagla and
others (1995) 5 SCC 272 was cited for the well known
proposition of law that the word “shall” is not
determinative and even where this word is used by the
Legislature, generally the provision is treated as
directory if consequence of disregard of the provision
24
is not provided. This proposition is not absolute and is
only one of the known tests for deciding whether a
provision is mandatory or directory.
21. In the leading case of State of U. P. vs.
Manbodhan Lal Srivastava AIR 1957 SC 912 in the
matter of penal action against a public servant in
accordance with Article 311 of Constitution of India, it
was held that use of the word “shall” in Article 320(3)
did not make consultation with the Union Public
Service Commission in such a matter mandatory. That
Constitution Bench judgement also made it clear that
the word “shall” is generally taken in a mandatory
sense but sometimes the entire provision may not be
treated as mandatory considering the entire context
such as the effect of proviso to Article 320(3) of the
Constitution of India. It was subsequently explained by
another Constitution Bench of the Supreme Court in
the case of Banwarilal Vs. the State of Bihar, AIR
1961 SC 849 (paragraph 16) that the relevant part of
Article 320 was treated to be directory mainly on
account of the contents of the proviso.
25
22. Learned AAG 1 appearing for the State
has highlighted paragraph 6 of that judgement wherein
it was clarified that to decide whether a provision is
directory or mandatory, the Court has to decide the
Legislative intent in each case. The relevant
consideration should be not only the words used but
the scheme of the Statute, intended benefit to public
and the material danger to the public by the
contravention of the provision under consideration.
23. Learned counsel for the Chancellor has
relied upon a judgement of the Supreme Court in the
case of State of A. P. Vs. Dr. Rahimuddin Kamal
(1997) 3 SCC 505. The facts of that case attracted the
principle laid down in the case of State of U.P. vs.
Manbodhan Lal Srivastava (Supra) which has already
been discussed. That judgement and other judgements
cited on behalf of appellants and the Universities do
not help the stand of the appellants. The provision for
consultation u/s 10 (2) of the Act had rightly been held
mandatory by the writ court. We find no good reasons
to take a different view.
26
Issue No.2: Whether there was
consultation as required u/s 10 (2) of the Act-
24. On behalf of the appellants, the
Chancellor and the Universities the minutes of the
Chancellor extracted at page 22 of the judgement under
appeal was highlighted and some other circumstances
were pointed out to submit that in fact there was
consultation in respect of appointment of the appellants
as required by law. The foundation for this submission
is minutes of the Chief Minister dated 12-6-2010
available as annexure- 1/B to supplementary affidavit
in CWJC no. 8141/ 2010 which has been annexed as
annexure-3 to LPA no. 822/2011. That has already
been noticed earlier. It has been submitted that since
the meeting on 29-3-2010 between the Chancellor and
the Minister is admitted, the contents of the
consultation is not at all justiciable and it must be
presumed that there was sufficient consultation leading
to appointment of the appellants.
25. It has further been submitted that the
orders dated 19-4-2010 and 26-4-2010 affecting the
27
financial powers and functioning of the appellants
show that the issue of consultation was under
examination and subsequently those orders were
withdrawn by order dated 13-6-2010 issued by the
Principal Secretary of the department, hence, the
conclusion should be that the State Government was
satisfied about the consultation having taken place as
per minutes of the Chief Minister and, therefore, the
enquiry ended and the lis came to an end. It has further
been submitted that thereafter the State cannot take the
stand that there was no consultation as required by law
and the writ court should also have held accordingly.
26. On the other hand learned counsels for
the writ petitioners and learned AAG 1 for the State
have taken a contrary stand. According to them, the
Chief Minister felt obliged to respect the stand of the
Chancellor but on facts he never came to a conclusion
that the stand of the Minister was factually incorrect. It
has further been submitted that the State was under
legal obligation to assist this court by placing all the
relevant facts to enable it to take a decision on the issue
28
whether there was consultation as required u/s 10 (2) of
the Act and whether the appointment of the appellants
was in accordance with law or not. On their behalf it
was submitted that in order to decide this issue the writ
court rightly went into the question as to what amounts
to “consultation” and whether the materials on record
and, particularly, the minutes of the Chancellor amount
to consultation as understood in law. It was pointed out
that in paragraph 43 of judgement under appeal,
relevant part of judgement in the case of Union of
India Vs. Sankal chand Himatlal Sheth and another
reported in AIR 1977 SC 2328 was extracted. That part
of the judgement of the Constitution Bench of the
Supreme Court refers to several authorities and case
laws. It also noticed Supreme Court’s judgement in the
case of S. P. Gupta and others Vs. President of India
and others reported in AIR 1982 SC 149. In the case
of Rollo and Anr. V. Minister of Town and Country
Planning (1948) 1 All E. R. 13 the Statute required the
Minister to consult some authorities. Bucknill J. held
that ” the Minister, with receptive mind, must by such
29
consultation seek and welcome the aid and advice
which those with local knowledge may be in a position
to proffer in regard to a plan which the Minister has
tentatively evolved”. It was clarified that the Minister
must supply sufficient information in order to obtain
advice and sufficient opportunity should be given in
tendering proper advice. That would only amount to
meaningful consultation.
27. It is worthwhile to notice the opinion of
Queen’s Bench expressed by Justice Webster, J. in the
case of R Vs. Secretary of State for Social Services, ex
parte Association of Metropolitan Authorities (1986)
1 All E.R., 164. The passage extracted in paragraph 46
of the judgement of the writ court is so eloquent in
respect of general principle relating to the consultation
that it needs to be extracted again:-
“But in any context the essence
of consultation is the communication of
a genuine invitation to give advice and
a genuine consideration of that advice.
In my view it must go without saying
that to achieve consultation sufficient
information must be supplied by the
30consulting to the consulted party to
enable it to tender helpful advice.
Sufficient time must be given by the
consulting to the consulted party to
enable it to do that, and sufficient time
must be available for such advice to be
considered by the consulting party.
Sufficient, in that context, does not
mean ample, but at least enough to
enable the relevant purpose to be
fulfilled. By helpful advice, in this
context, I mean sufficiently informed
and considered information or advice
about aspects of the form or substance
of the proposals, or their implications
for the consulted party, being aspects
material to the implementation of the
proposal as to which the Secretary of
State might not be fully informed or
advised and as to which the party
consulted might have relevant
information or advice to offer.”
28. The learned writ court has also noticed
the judgement of the Supreme Court in the case of
Gauhati High Court and another Vs. Kuladhar
Phukan and another, reported in (2002) 4 SCC 524.
31
In that case the consultation required was between the
Governor and High Court. The matter related to
subordinate judiciary. The effect of non consultation
was held to be so incurable that even an ex-post facto
approval would not cure the invalidity.
29. A perusal of the minutes of the
Governor dated 29-3-2010 shows that the agenda of
the meeting related to a Bill for constituting a Tribunal
for settlement of disputes among employees and
teachers of the Universities and Colleges. Only some
general talks took place regarding urgency of
appointing good and efficient Vice Chancellors in
Magadh University and Patna University. The only
name mentioned by the Minister was of one Dr.
Simadri for Patna University.
30. Since the minutes of the meeting have
been recorded by Hon’ble the Governor of Bihar
which may be taken to be that of the Chancellor, there
is no scope to presume that there was any consultation
in respect of names of eligible persons or at least the
appellants for appointment as Vice Chancellors of the
32
concerned Universities. Subsequent minutes of the
Minister is not in conflict with the minutes prepared by
the governor or the Chancellor and it is difficult to
reject the stand of the Minister that he had no
consultation with the Chancellor on 29-3-2010 for
appointment of the appellants on the post of Vice
Chancellors, as required by Section 10 (2) of the Act.
The minutes of the Chief Minister and the consequent
decision to cancel some earlier orders and allow the
appellants to continue as Vice Chancellors is clearly
an administrative decision as per convenience or
propriety and does not appear to be a stand taken on
the basis of merits of the matter. The minutes of the
Chief Minister in no way rejects the stand of the
Minister on account of any proven facts. In any case,
in the overall context, the view recorded by the Chief
Minister cannot and should not prevent the State
Government from placing all the facts before the court
in a fair manner to enable it to come to a proper
conclusion.
31. The facts and circumstances available
33
on record clearly show that the State Government had
not finalized its own list or panel of deserving
candidates because the matter was pending for
approval of the Chief Minister till the meeting held on
29-3-2010. Further, the minutes of the Chancellor
noticed above as well as subsequent stand of the
Minister and correspondences show that the process of
consultation was yet to begin and the State
Government’s views were yet to be finalized. From
the materials available on record before this court it
has to be held that there was no consultation as
required by Section 10(2) of the Act either on facts or
in law. As held earlier, the consultation must be
effective and it cannot be complete unless views of the
State Government are available in respect of the
proposed appointees. That never happened. .
Issue No.3 : Whether the minutes of the
Chief Minister dated 12-6-2010 must be taken as a
binding determination on consultation or whether it
shows fresh consultation, taking care of lack of
consultation:-
34
32. It has already been discussed and held that
consultation u/s 10(2) of the Act is mandatory. It has also
been discussed and held after noticing the submissions in
respect of order dated 13-6-2010 of the Principal
Secretary of the department and minutes of the Chief
Minister dated 12-6-2010 that in fact there was no
consultation either on facts or in law. Thus, in substance
the issue no. 3 has already been answered in the context
of issue no.2.
33. It may further be observed that the minutes
of the Chief Minister dated 12-6-2010 do not show any
reasons for his deciding to respect the views of the
Chancellor and, hence, it cannot have even persuasive
value so far as this court is concerned, in the context of
all the relevant facts including the minutes of the
Chancellor and those of the Minister. The Chief Minister
rightly avoided to give any categorical finding. When a
challenge to the legality of appointment to a public and
Statutory post like that of Vice Chancellor came up for
decision before this court, the State Government rightly
placed all the materials and facts before the court
35
because the findings, if any, by the Chief Minister or the
State Government cannot be binding on the court. In a
dispute of present nature, the State Government cannot
be held bound by principles of estoppel or waiver when
the issue is- whether the statutory requirement of
consultation was actually met or not. It is well settled
that there is no estoppel against the Statute.
34. In the judgement of the Supreme Court in
the case of Waman Shriniwas V. R. B. & Co. AIR 1959
689 a tenant raised the issue of waiver on the ground that
the landlord had agreed to allow the tenant to sublet the
premises. The Apex Court rejected the plea on various
grounds including the ground that rights under the
statutory provisions based on public policy must be
enforced by the courts. It was further held that an
agreement to waive an illegality is void on grounds of
public policy and would be unenforceable. Some
judgements of the Privy Council were also relied upon.
One may usefully refer to the case of Surajmull
Nagoremull V. Triton Insurance Co. Ltd. AIR 1925 PC
83. The relevant principle of law enunciated by Lord
36
Sumner is in following words:-
“————– No court
can enforce as valid that which
competent enactments have
declared shall not be valid, nor is
obedience to such an enactment a
thing from which a Court can be
dispensed by the consent of the
parties, or by a failure to plead
or to argue the point at the
outset—————“
35. The Supreme Court also noted the law as
to waiver in Corpus Juris Secundum Volume 92 at page
1068 and highlighted that a waiver in derogation of
statutory rights is not favoured, and it will be inoperative
and void if it infringes on the rights of others or would be
against public policy or morals. Thus, it is not possible to
accept that the lis must be deemed to have come to an
end with the views of the Chief Minister in his minutes
dated 12-6-2010 or with the issuance of an order by the
Principal Secretary on 13-06-2010 allowing the
appellants to work as Vice Chancellors. Even the
alternative argument that as per minutes of the
37
Chancellor, the Minister waived the right of consultation
must also be rejected for the aforesaid reasons. The
provision for consultation u/s 10 (2) of the Act is to serve
a public purpose and it cannot be waived by any
Government functionary.
36. Having clarified the legal position that
mandatory requirement like the one u/s 10 (2) of the Act
cannot be waived by the Minister or the State
Government, it also needs to be highlighted that in fact
the Minister was aware that the panel containing the
names of candidates which the State Government was to
discuss in course of consultation with the Chancellor had
yet not been finalized by the Chief Minister. In such
facts and circumstances, it was not possible or proper for
the Minister to waive the requirement of consultation
between the Chancellor and the State Government. In
fairness to the Minister, it must be added herein that the
minutes of the Chancellor are not clear and it cannot be
safely concluded that the Minister had agreed to waive
the right of “consultation”.
37. One of the arguments on behalf of
38
appellants was that contents of consultation are not
justiciable. For that reliance was placed upon the
judgement of the Supreme Court in the case Mahesh
Chandra Gupta vs. Union of India (2009) 8 SCC 273.
In the case at hand the subject of enquiry or the issue, as
noted above, is whether there was any consultation as
required by Section 10(2) of the Act or not and for that
purpose only the minutes of the Chancellor were noticed
by the writ court and also by us. The justiciability of
contents of consultation cannot arise as an issue when it
has been found that there was no consultation at all.
38. Another contention of the appellants was
that in exercise of writ jurisdiction this court should not
decide whether there was any consultation because it is
an issue involving disputed questions of facts. This
contention is also devoid of any merits. Both the
concerned parties, that is, the Chancellor and the State
Government have placed all the materials which are
relevant for deciding the issue involved. The facts are not
much in controversy and the task before the court is
mainly of drawing deductions or inferences from the
39
facts available on record of the case. It is not a case
which should be thrown out on the plea of disputed
questions of facts.
39. On behalf of the writ petitioners it was
pointed out that the Vigilance Department of Jharkhand
has filed an affidavit in which a report has been enclosed
which shows pendency of investigation into various acts
of financial and other irregularities against some others
and appellant Arvind Kumar in the capacity of erstwhile
Vice Chancellor of Vinoba Bhave University,
Hazaribagh (Jharkhand). In reply, learned counsel for the
aforesaid appellant attempted to show that the allegations
were not relatable to Arvind Kumar or had no substance.
In reply, it was submitted on behalf of writ petitioners
that whatever be the worth of allegations and materials
under investigation, the State Government of Bihar
should have been afforded an opportunity by the
Chancellor to collect such materials for effective
consultation otherwise public interest would and has
suffered.
40. It is not necessary to go into the merits of
40
the allegations and materials against appellant Arvind
Kumar in the present proceeding. Since it has already
been held that prior consultation is mandatory and the
required consultation did not take place, such or other
materials and allegations must be left for consideration
by the Chancellor and the State Government at the
appropriate stage, if required.
41. The aforesaid discussion and findings
leave no option but to affirm the views taken by the
learned writ court. As a result the appeals must fail.
They are accordingly, dismissed.
There shall be no order as to costs.
(Shiva Kirti Singh, J.)
(Shivaji Pandey, J.) I agree.
(Shivaji Pandey, J.)
Patna High Court
The 8th September,2011
BKS/AFR