JUDGMENT
B.N. Jha, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for the issue of an appropriate writ for quashing the order of the Chancellor dated February 23, 1965 directing the post of a Reader in Political Science in the Post Graduate Department of the Bhagalpur University to be filled by direct recruitment and directing the respondents to give effect to the decision of the
Chansellor dated July 27, 1964, ordering the post to be filled by promotion.
2. The petitioner was the Head of the Department of Political Science in the post Graduate Department of the University since November 28, 1962. He had a brilliant academic career at the University and he is possessed of requisite qualification for being appointed as a Reader in the subject. It is not denied before us that if the post of the Reader is to be filled by promotion, the petitioner is entitled to it. The Chancellor gave his approval to the proposal made by the Vice Chancellor to the effect that the post of a Reader in Political Science would be filled by promotion by his letter dated July 27, 1964. In pursuance thereof the University sent the name of the petitioner to be appointed as a Reader to the Bihar Public Service Commission for its concurrence with necessary informations as to the petitioner’s qualifications, teaching experience and research work etc. By its letter no. V-21580 dated October 28, 1964. Thereafter the petitioner also, as required by the Public Service Commission, sent necessary informations to the Commission by filling up the forms in duplicate supplied to him by it. While the petitioner’s matter was pending before the Public service Commission, the Chancellor by his order dated February 23, 1965, directed the post of Reader in Political Science to be filled up by direct recruitment through the Public Service Commission by advertisement.
3. The main grievance of the petitioner in this case is that the Chancellor could not suo motu by his order of February 23, 1965, direct the post of a Reader to be filled up by advertisement by reviewing his previous approval given on July 27, 1964. The learned Counsel for the petitioner submitted that under Article 3(4)(c)(ii) of Chapter XV-A of the Bhagalpur University Statutes the Chancellor could only give his approval to the proposal submitted to him by the Vice-Chancellor as to whether the post of a Reader should be filled by promotion or by direct recruitment by advertisement and he himself could not direct the University to fill the post by advertisement. Art.
3(4)(c)(ii) of Chapter XV-A of the Statute reads as follows:
For all other post, of teachers, Principals and Officers, the appointment should be made normally by promotion, but in cases where sufficient number of suitable persons are not available for promotion, the posts should be advertised. The Vice-Chancellor with the approval of the Chancellor, shall decide whether any particular post shall be filled by promotion or by direct recruitment after advertisement. Before addressing the Chancellor, however, the Vice-Chancellor shall consult the Dean of the Faculty concerned and such other experts as he may deem fit, to determine if any other special qualifications in addition to those prescribed in the statutes should be laid down for the particular post, and to decide whether the post should be recommended to be filled by promotion or by direct recruitment.
It is true that the Chancellor would give his approval to the proposal in that respect submitted to him by the Vice Chancellor, but in this case, the then vice-Chancellor, Dr. B.R. Mishra, had already forwarded a proposal to the Chancellor for filling up the posts of readers in different subject including Political Science by his letter dated November 20, 1963, and the Chancellor accorded his approval to it by his memorandum no. BHU 93/63-63 G.S. (1) dated the 9th January, 1964. The Principle as to whether the post of a Reader in Political Science including other subjects would be filled by promotion or direct recruitment had been decided and the Chancellor had given his approval to that. It is submitted by the respondents that the new vice-Chancellor Dr. R. D. Sinha ‘Dinkar’ requested the Chancellor for reconsideration of his previous order and recommended that the posts should be filled up by promotion. The Chancellor had a talk with the Vice Chancellor on July 26, 1964, and consequently on July 27, 1964 the Chancellor decided that the posts in Chemistry, Economics, Hindi, Mathematics and Political Science be filled up by promotion and in English, History, Philosophy, Physics, Psychology and Statistics by advertisement. The Vice-Chancellor again requested the Chancellor to reconsider the matter and order that the appointments of Readers in Physics, Philosophy and History should also be made by promotion, but he did not accede to it. On February 23, 1965, the Chancellor addressed a letter to the Vice Chancellor (Dr. R.D. Sinha ‘Dinkar’) directing therein that where there were more than three competent persons serving as lecturers the post of the Reader might-be filled up from amongst them by promotion, but where there were three or less, the post might be filled up after advertisement through the Bihar Public Service Commission. Hence, the Chancellor revised his previous decision and withdrew his approval to the proposal of the Vice Chancellor that the post of a Reader in Political Science might be filled up by promotion. Learned Counsel for the respondents submitted that there was no illegality committed by the Chancellor in withdrawing his approval to the proposal of Dr. R.D. Sinha ‘Dinkar’ and sticking to his previous decision dated the 9th January, 1964.
4. In terms of the Statute the Chancellor had power to give approval to the proposal made to him by the Vice Chancellor. The power to give approval includes the power to withdraw approval. Hence the Chancellor while acting under the Statute did not exceed his limit by withdrawing his approval to the new proposal made by Dr. R.D. Sinha ‘Dinkar’ on July 26, 1964.
5. The University has produced before us the proposal of Dr. B.R. Mishra, the Vice Chancellor, together with the approval given to it by the Chancellor. It may be quoted here in extenso:
BHAGALPUR UNIVERSITY
File No. 1963.
Subject: Appointment of Readers.
…
Chancellor.
The following posts of Readers in the Subjects noted below have to be filled:
Statistics:
1 for the Post Graduate Department.
English:
1 for the Post Graduate Department.
1. for the T. N. B. College.
Philosophy:
1 for the Post Graduate Department.
Political Science:
1 for the Post Graduate Department.
Mathematics:
1 for the Post. Graduate Department.
1 for the post. Graduate Department.
Economics:
1 for the T. N. B. College.
Chemistry:
1 for the T. N. B. College.
Hindi:
1 for the T. N. B. College.
Physics:
1 for the T. N. B. College.
In addition, we have started post Graduate Departments of History and Psychology from this Section in accordance with the resolution of the Senate. Statutes in regard to the number of posts of Teachers in these two subjects for the Post Graduate Departments were passed by the Senate at its meeting held in April last and they have been submitted to the Chancellor for approval. Readers in each of these two subjects have also to be appointed.
I have consulted the Dean of the Faculty of Articles the Dean of the Faculty of Science and Dr. S.P. Sinha, M. Sc. Ph. D (Pat), Ph. D. (London) in regard to laying down special qualifications if any, over and above the minimum qualifications prescribed by the Statutes, for the posts of readers in the different subject. I have been advised that no special qualifications need be prescribed for the post of Reader in any of the subjects except for one post of Reader in English where
specialization in old English should be laid down as a preferential (not essential) qualification. I agree with this advice.
After going through the list of the teachers in the different subjects I am of the opinion that the posts of Readers in all the above mentioned subjects should be filled by direct recruitment through open competition by advertisement through the Public Service Commission. The Chancellor may be pleased to give his approval to this so that the Public Service Commission may be requested to advertise the posts immediately.
A list of the teachers in the Bhagalpur University Service, in these subjects, is enclosed herewith for Chancellor’s information. In the interest of P. G. studies and Research I feel that it is necessary to fill up all the posts of Readers by open competition through the Public Service Commission, where even those who are in the service of this University and who may be
regardded as technically eligible for promotion may compete.
Encl:-
Sd.
Vice-Chancellor
26/10.
Memo no. BHU-93/63-63-G.S.(1) Patna, the 9th January, 1964. Vice-Chancellor, Bhagalpur University, Bhagalpur. Reference : Your Memo no. B-19132 dated the 20th November, 1963.
The Chancellor has been pleased to approve your above proposal regarding filling up the posts of Readers in different Departments of the Bihar University under Article 3(4)(c) of Chapter XV-A of the Statutes of the Old University.
Sd. Illeg.
Secretary to the Governor, Bihar
6. It is clear that the Vice-Chancellor submitted the proposal to the Chancellor that the post of a Reader in Political Science in the post graduate Department be filled by direct appointment and the Chancellor gave approval to it. If the Chancellor subsequently, in ignorance of his previous decision in the matter, directed the post to be filled up by promotion and subsequently he changed his decision when he became apprised of the entire matter, no illegality was committed by him by withdrawing his approval to the proposal of Dr. R.D. Sinha ‘Dinkar’ dated July 27, 1964, and directing the University to fill the post by direct appointment. In such circumstances, it cannot be said that the Chancellor acted suo motu in the matter. It is a case where the Chancellor withdrew his approval to the proposal of Dr. R. D. Sinha ‘Dinkar’ which ran counter to his previous approval given on the proposal of Dr. B.R. Mishra by his memo dated January 9, 1964. Hence, there is no force in the contention of learned Counsel for the petitioner that the order of the Chancellor directing the post of a Reader in Political Science to be filled by advertisement is bad in law.
7. Learned Counsel for the petitioner has next urged that under the terms of the Statute, the Vice-Chancellor, before addressing to the Chancellor was bound to consult the Dean of the Faculty concerned on the question whether the post should be filled up by promotion or by direct recruitment. He is also required to consult the Dean and such other experts as he may deem fit on the question whether any other special qualification in addition to those prescribed in the Statute should be laid down for the particular post. The letter of the Vice-Chancellor (already quoted) shows that he only consulted the Dean concerned in the matter as to whether some special qualifications should be prescribed for the post of Reader in the subject. It does not show that he also consulted the Dean as to whether the post should be filled up by promotion or by direct recruitment. It is urged that the use of the word “shall” in the article is very significant and that it connotes that the Vice Chancellor is
boned to consult the Dean because the Dean is supposed to be conversant with the teaching of the University. Therefore, according to his submission, the entire approval of the Chancellor dated the 9th January, 1964 is invalid on account of the fact that the Vice-Chancellor did not observe the mandatory provisions of the Statutes.
8. It is not correct to say that whenever the word “shall” appears in a statutory provision, it has mandatory force and that any breach of the formalities laid down in the provisions would make the order void, in this connection I may quote here the following observation of the Supreme Court in State of V.P. v. Man Bodhan Lal Srivastava :
The use of the word “shall” in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, then proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word “may” has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid.
Whether the provision is mandatory or directory has got to be judged in the light of the entire scheme of the Act. Under the scheme of the Bhagalpur University Act, the Vice-Chancellor is the Principal Executive and Academic Officer of the University. He is the Chairman of the Syndicate and of the Academic Council and is entitled to be present and speak at the meeting of any authority or other body of the University and shall in the absence of the Chancellor preside at the meetings of the Senate and at the convocation of the University. In the administrative affairs of the University he is to be guided by the advice of the Syndicate, Academic Councils and various faculties constituted under the Act. In the matter of appointment of teachers of the University the Public service commission is required to be consulted. Whether the post of a Reader in the Post Graduate Department is to be filled up by promotion or by direct recruitment has got to be decided as provided in Article 3(4)(c)(ii) of Chapter XV-A of the Statutes subject to the approval of the Chancellor. Thus it will be seen that in the process of appointment, the Dean is only one of the limbs, being merely an advisory body to the Vice Chancellor. In such circumstances, it cannot be held that the word “shall” used in the articles has a mandatory force. In Manbodhan Lal’s case the question arose whether the irregularity committed by the Union Government in regard to the consultation with the Public Service Commission would make its order a nullity. The Supreme Court held that the provisions made under Article 320 (3)(c) are not mandatory in nature though the word “shall” has been used in the Article. It further held that non compliance with those provisions would not afford a cause of action to a civil servant in the court of law. This view was again reiterated by the Supreme Court in Major U.R. Bhatt v. Union of India . Therefore, in my opinion, even though the proposal made by Dr. B.R. Mishra and the approval given by the Chancellor by his order dated the 9th January, 1964 do not show that the Vice Chancellor before making the proposal to the Chancellor consulted the Dean as to whether the appointment should be made by promotion or by direct recruitment nevertheless the approval given by the Chancellor on the proposal could not be held invalid on that account and would not afford a cause of action to the petitioner to come before this Court for quashing that order.
9. Moreover, here it was not a case of complete omission to consult the Dean as required by the statutory provision but an irregularity in such consultation. The Vice-Chancellor did consult the Dean, who stated that no special qualification need be prescribed. It is true that the Vice-Chancellor did not specifically request the Dean to give his opinion as to whether the post should be recommended to be filled by promotion or by direct recruitment; but the Dean also is expected to know the statutory provision and be aware of his right to give advice on this point. Hence, he could, while giving his advice on the question of special qualification, have also given his advice as to whether the post should be filled by promotion or by direct recruitment. Such advice would not have been rejected as gratuitous. The utmost that can be said in favour of the petitioner, therefore, is that there was a slight irregularity in the manner in which the Vice-Chancellor consulted the Dean. Such an irregularity will not, by itself, render the appointment by direct recruitment invalid. Therefore the order of the Chancellor, dated the 9th January, 1964, giving his approval to the proposal for direct recruitment for the post and his subsequent order, dated the 23rd February, 1965, cannot be struck down as invalid.
10. Learned Counsel further submitted that the statute quoted above provides that in the case of the appointment of teachers it should be made normally by promotion, but in cases where sufficient number of suitable persons are not available for promotion, the post should be advertised. Here only one post of a Reader was to be filled up in the department of Political Science. The petitioner possessed requisite qualifications and he was working as the Head of the Department in Political Science since November 28, 1962. He had a brilliant academic career at the University and was possessed of sufficient teaching and research experience. Therefore, the post in terms of the statutes should not hate been directed to be filled by direct recruitment. As a matter of fact, his name was recommended by the University to the Public Service Commission for such appointment for its concurrence, but while the matter was pending the Chancellor directed the post to be filled up by direct recruitment. The- entire Sub-rule (c)(ii) has got to be read and construed as a whole. It is true that normally the post of a teacher is required to be filled by promotion when a suitable person is available, but this is not an invariable rule. Some discretion in this matter is left with the Vice-Chancellor. He is not bound to fill up the post by promotion. It is for him to decide as to what course should be adopted. The word “ordinarily” was construed by the Supreme Court in the case of Kailash Chandra v. Union of India , in connection with the Government Service Rules which provided as follows:
A ministerial servant who is not governed by Sub-clause (b) may be required to retire at the age of 53 years but should ordinarily be retained in service if he continued to be efficient up to the age of 60 years. He must not be retained after that age….
The Supreme Court held:
This intention is made even more clear and beyond doubt by the use of the word “ordinarily”. “Ordinarily” means “in the large majority of cases but invariably.” This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age o£ 55 even if he continues
to be efficient….
The word “ordinarily” may be taken to be synonymous with the word “normally”. Both these words were used in the same sense while construing the above service Rule by the Supreme Court in
Jairam v. Union of India .
11. These two decisions would, therefore, support the view that, where a statutory provision authorises a certain act to be done “normally” or ”ordinarily”, but, at the same time, gives discretion to the authority concerned to depart from this normal procedure in special circumstances, a person aggrieved by the departure from the normal procedure cannot claim a justiciable right to direct enforcement of the said procedure. It is only when a mandatory sense is conveyed to the provision by the use of the word “invariably” or other similar expressions that an aggrieved party can insist on strict compliance with those provisions. Where, however, some discretion is still left with the competent authority, exercise of such discretion cannot be challenged except, of course, on the ground of mala fide or failure to fulfil the conditions under which the discretion should be exercised.
12. Learned Counsel for the petitioner further urged that in many subjects like Hindi. Chemistry, Physics, Botany and Zoology etc. the posts were directed to be filled by promotion and hence
discriminatory treatment was shown to him. It is difficult for me to accept the submission made by the learned Counsel for the petitioner in the circumstances of the case. Discrimination will be unfair only amongst those persons who are placed in similar circumstances. The subjects referred to are quite different and enough materials have not been passed before us to show that the promotees for the posts of Readership in those subjects were placed in circumstances similar to those of the petitioner. In such circumstances the action of the University could not be characterised as discriminatory.
13. After the post of a Reader was advertised through the Public Service Commission, the petitioner applied, though it is stated that he applied under protest and appeared before the Public Service Commission. The Public Service Commission did not recommend his name for the post and recommended the names of two other persons whom the Commissioner thought to be more competent than the petitioner. In such circumstances, the petitioner could not be said to have any grievance against the manner of appointment.
14. The Supreme Court in Dr. Rai Sibendra Bahadur v. Governing Body of the Nalanda College, Biharsharif and Ors. , held that in order that mandamus may issue to compel the Governing Body of a College to do something, it must be shown that relevant Section of the University of Bihar Act imposes a legal duty and that the petitioner has a legal right under the Statute to enforce its performance. The petitioner in the present case has not shown that he has any justiciable right entitling him to get the post and as such he cannot ask for a writ to issue against the University.
15. In the circumstances, stated above, there is no merit in the application and accordingly, it is dismissed with costs. Hearing fee Rs. 100/-.
R.L. Narasimham, C.J.
16. I agree.