Khagendra Kumar vs The Syndicate,Thru.The V.C.,Pu on 13 January, 2009

Patna High Court
Khagendra Kumar vs The Syndicate,Thru.The V.C.,Pu on 13 January, 2009
Author: Chandramauli Kumar Prasad
              CIVIL WRIT JURISDICTION CASE No.13754 OF 2008

     (An application under Article 226 of the Constitution of India)

PROF.(DR.) JYOTI SHEKHAR, SON OF LATE DR. KAMESHWR
PRASAD AMBASTHA, RESIDENT OF A-2, GRAND‟S PALLAVI COURT,
JUDGES‟ COURT ROAD, P.S.- PIRBAHORE, DISTRICT AND TOWN-
PATNA
                              ------------------ (PETITIONER)

                                 Versus

1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY,
   HUMAN    RESOURCES     DEVELOPMENT     DEPARTMENT,
   GOVERNMENT OF BIHAR, PATNA

2. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES
   DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR,
   PATNA

3.    THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF
     BIHAR, OLD SECRETARIAT, PATNA

4. PATNA UNIVERSITY, PATNA THROUGH THE REGISTRAR, PATNA
   UNIVERSITY, PATNA

5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA

6. THE VICE-CHANCELLOR, PATNA UNIVERSITY, PATNA

7. THE REGISTRAR, PATNA UNIVERSITY, PATNA
                         ------------------ (RESPONDENTS)


FOR THE PETITIONER :-MR. MADHURESH PRASAD,ADVOCATE
FOR THE STATE :-     (AAG-3) MR. LALIT KISHORE &
                      MR. SATYABIR BHARTI, J.C. TO A.A.G.-3

FOR THE CHANCELLOR :-
                   MR. RAM BALAK MAHTO, SR. DVOCATE &
                   MR. SHIVENDRA KISHOR, ADVOCATE
FOR THE PATNA UNIVERSITY :-
                   MR. AJAY KUMAR SINHA, ADVOCATE &
                   MR. IQBAL AHMAD, ADVOCATE

                                 WITH

                        CWJC No.17506 OF 2008
                              -2-




DR.DINESH PRASAD SINGH, SON OF LATE SINGESHWAR SINGH, AT
AND P.O.- MASARHI, P.S.- GAURICHAK, DISTRICT- PATNA AT
PRESENT WORKING AS HEAD OF DEPARTMENT OF HINDI, PATNA
UNIVERSITY, PATNA
                              ------------------(PETITIONER)

                             Versus

1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY,
   HUMAN    RESOURCES     DEVELOPMENT     DEPARTMENT,
   GOVERNMENT OF BIHAR, PATNA

2. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES
   DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR,
   PATNA

3. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF
   BIHAR, OLD SECRETARIAT, PATNA

4. PATNA UNIVERSITY, PATNA THROUGH THE REGISTRAR, PATNA
   UNIVERSITY, PATNA

5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA

6. THE VICE-CHANCELLOR, PATNA UNIVERSITY, PATNA

7. THE REGISTRAR, PATNA UNIVERSITY, PATNA
                              ------------------ (RESPONDENTS)


FOR THE PETITIONER :-MR. MADHURESH PRASAD, ADVOCATE
FOR THE STATE :-     (AAG-3) MR. LALIT KISHORE &
                     MR. SATYABIR BHARTI, J.C. TO A.A.G.-3

FOR THE CHANCELLOR :-
                   MR. RAM BALAK MAHTO, SR. ADVOCATE &
                   MR. SHIVENDRA KISHOR, ADVOCATE
FOR THE PATNA UNIVERSITY :-
                   MR. AJAY KUMAR SINHA, ADVOCATE &
                   MR. IQBAL AHMAD, ADVOCATE


                             WITH

                    CWJC No.17903 OF 2008

KHAGENDRA KUMAR, AGED ABOUT 46 YEARS, S/O SHRI
BHAGWAN SINGH, RESIDENT OF PROFESSOR QUARTER-2, PATNA
TRAINING COLLEGE CAMPUS, DARIYAPUR, P.S.- KADAMKUAN,
DIST.-PATNA
                            ------------------ (PETITIONER)
                                       -3-




                                     Versus

       1. THE SYNDICATE, THROUGH THE VICE-CHANCELLOR, PATNA
          UNIVERSITY, PATNA

       2. THE VICE CHANCELLOR, PATNA UNIVERSITY, PATNA

       3. THE REGISTRAR, PATNA UNIVERSITY, PATNA

       4. THE CHANCELLOR, UNIVERSITIES OF BIHAR, PATNA
                                     ----------------- (RESPONDENTS)


       FOR THE PETITIONER :-MR. SHARAD KUMAR SINHA, ADVOCATE
       FOR THE STATE :-     (AAG-3) MR. LALIT KISHORE &
       FOR THE CHANCELLOR :-
                            MR. RAM BALAK MAHTO, SR. ADVOCATE &
                            MR. SHIVENDRA KISHOR, ADVOCATE
       FOR THE PATNA UNIVERSITY :-
                            MR. AJAY KUMAR SINHA, ADVOCATE &
                            MR. IQBAL AHMAD, ADVOCATE


                                 PRESENT

        THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD
                THE HON'BLE DR. JUSTICE RAVI RANJAN




Prasad, A.C.J. &           Petitioners in all these writ applications are Heads
Ranjan, J.

of Department in different subjects in the Post-graduate

departments of the respondent Patna University and their

prayer is to declare Sections 3, 4 and 6 of the Patna

University (Amendment) Act, 2008 (Bihar Act, 15 of 2008)

substituting Sub-clause (b) in Section 27 (6), inserting

Clauses (c) and (d) after Section 27 (6) (b) and adding Sub-

Section (7) after Section 36 (6) of the Patna University Act,
-4-

1976 (Bihar Act, 24 of 1976) respectively as ultra vires.

Facts lie in a narrow compass.

All the petitioners are presently holding the office

of the Heads of Department in different subjects in the Post-

graduate Departments of the respondent Patna University. It

is not in dispute that the post of Head of Department as such

does not exist with specific scale of pay, but there are several

privileges attached to it. Prior to coming into force of the

provisions under challenge Head of Department, ordinarily

used to be the senior most teacher in the subject. Section

27(6) of Bihar Act, 24 of 1976 before its amendment by

Sections 3 and 4 of the Bihar Act 15 of 2008, read as

follows:-

“27.The faculties:-

x x x x x

6 (a) Each Faculty shall comprise of such
departments of teaching as may be
prescribed by the Regulations.

(b) Where it is proposed to appoint any
teacher to be the Head of a Department
who is not the senior most Professor,
University Professor or Reader of the
Department, as the case may be, such
appointment shall not be made without
the prior concurrence of the Bihar State
University (Constituent Colleges)
Service Commission.

-5-

x x x x x

Section 3 of Bihar Act 15 of 2008, had substituted

Section 27 (6) (b) of the Bihar Act 24 of 1976, which reads

as follows:-

“3. Substitution of Section -27 (6) (b) of the
Bihar Act 24, 1976. – In the said Act the
Sub-Section- 6 (b) shall be substituted,
by the following:-

“(b) Subject to the provisions of this Act
and the provisions of the statute made
thereunder the Head of the department shall be
appointed by the Vice-Chancellor by
observing, as far as possible, the principle of
rotation. Such appointment‟s shall be reported
to the syndicate of the University.”

Section 4 of Bihar Act 15 of 2008 provided for

addition of new clauses (c) and (d) after 27 (6) (b) of Bihar

Act , 24 of 2008, same read as follows:-

“4. Addition of a Section- 27 (6) (c ) and 27
(6) (d) of the Bihar Act 24, 1976. – The
following shall be Added after Section – 27
(6) (b) of the Patna University act, 1976 (Bihar
Act 24, 1976):-

“(c) – The Head of the department shall
hold office for a period of three years. A
person shall not ordinarily be appointed as
Head of the department for a second
consecutive term.”

“(d) – The principal shall hold office for
a maximum period of five years in one
college.”

-6-

By virtue of section 6 of Bihar Act 15 of 2008 a

new Sub-section (7) was added after Section 36 (6) of Bihar

Act 24 of 1976, hereinafter referred to as the Act same reads

as follows:-

(7) – Notwithstanding anything
contained in the above clause, if at any time,
the chancellor is satisfied that it is necessary to
frame Statute of any subject of common
interest after obtaining the advice of the
committee of three Vice-Chancellors
constituted by the Chancellor, shall send the
Draft Statute to all the Vice-Chancellors for
opinion, who shall send their opinion within
ten days from the receipt of draft. The
Chancellor shall give assent to the Statute with
such amendment as he may deem necessary in
the light of the opinion of the Vice-
Chancellors. The Statute shall be deemed to
come into force in the Universities from the
date of assent;

Provided that the State Government
may also suggest the Chancellor to frame
Statute of any subject of common interest of all
the Universities.

The Chancellor of the Universities in exercise of

power under Section 36 (7) of the Act constituted a

committee of three Vice-Chancellors, namely the Vice-

Chancellor of Patna University, T. M. Bhagalpur University

and M.M.H Aarbic and Persian University to advice it on the

issue of appointment of Heads of Department on the

principle of rotation. The Vice-Chancellor of the Patna
-7-

University was made its Convenor. The committee of three

Vice-Chancellors so constituted held its deliberations on

various dates and sent its report to the Chancellor. The report

so received was forwarded to all the Vice-Chancellors for

opinion and a meeting of all the Vice-Chancellors was held

in which the draft statute submitted by the committee of

three Vice-Chancellors was discussed and the Vice-

Chancellors concurred with that. Ultimately Statute for the

scheme of rotation of Headship was assented by Chancellor

of the Universities and made applicable to all the

Universities of Bihar, except Rajendra Agriculture

University and Nalanda University. Statute provides as

follows:-

“1. Headship of the Department be rotated
only amongst the first four seniormost
teachers (Professors and Readers) as the case
may be of the subjects concerned.

For headship in P.G. Departments, first
four seniormost teachers shall essentially be
posted in the Department concerned.

2. Where there is no Professor, the Headship
shall be rotated amongst the four seniormost
Readers, or less if the number of Readers in
the Department is less than four.

3. If there is neither a Professor nor a Reader
in the Department, the Headship of the
Department may be rotated amongst teachers
of the Department.

The tenure of Headship of the
Department will be for three years. If for any
-8-

reason, the Vice-Chancellor feels that change
in the Headship of the Department even prior
to the completion of term of existing
incumbent is necessary in the interest of the
Department, change in the Headship of the
Department be made subject to the approval
of the Chancellor.

4. During the period of absence or leave of
the duly appointed Head of the Department,
the seniormost teacher in the department shall
carry on the office of the Head of the
Department provided that if the absence
extends over a period of three months or
more, the Vice-Chancellor may keeping in
view the circumstances entrust the work to the
next senior teacher in the subject. If however,
the vacancy in the office of Head of the
Department is to last or likely to last over a
period of one year or more, the Vice-
Chancellor may appoint another Head of the
Department in accordance with these rules in
the vacancy.”

Mr. Madhuresh Prasad and Mr. Sharad Kumar

Sinha appear on behalf of the petitioners. Submissions on

behalf of the petitioners have mainly been advanced by Mr.

Prasad. Mr. Lalit Kishore, Additional Advocate General-III,

had appeared on behalf of the State. Mr. R.B. Mahto, Senior

Advocate appears on behalf of the Chancellor of the

Universities, whereas the Patna University is represented by

Mr. Ajay Kumar Sinha and Mr. Iqbal Ahmad.

While assailing Section 3 of Bihar Act 15 of 2008,

Mr. Jha, contends that the Vice-Chancellor has been given
-9-

unguided power to appoint the Head of Department. As such

according to him the appointment of Head of Department

shall be at the whim and caprice of the Vice-Chancellor and

conferring such an unguided power by the Legislature to the

Vice-Chancellor makes the provision arbitrary and violative

of Article 14 of the Constitution of India and thus fit to be

struck down on that ground alone. It has been pointed out

that use of the expression “as far as possible” in Section 27

(6) (b) of the Act by Section 3 of Bihar Act, 15 of 2008

clearly makes the provision vague and discretion unlimited.

While challenging the vires of Section 4 of Bihar

Act, 15 of 2008, it has been pointed out that prohibiting

appointment as Head of Department ordinarily for a second

consecutive terms also gives unguided power to the Vice-

Chancellor.

Before we examine the submission of the learned

Counsel, we deem it expedient to consider the scope for

judicial review for striking down an Act or a provision

thereof to be ultra vires. In this connection Mr. Lalit Kishore

submits that the Act made by the Legislature or the provision

thereof can be declared ultra vires only when it affects one

– 10 –

or the other provisions of the Constitution. He submits that

the petitioners have not been able to demonstrate that the

impugned provisions in any way offends any of the

Constitutional provision.

It is well settled proposition of law hallowed by

time and sanctified by precedent that an Act of the

Legislature or the provision thereof can be declared ultra

vires only when it affects one or the other provision of the

Constitution. A provision in the Act or the Act made by the

Legislature, in our opinion can be held to be ultra vires only

when it violates one or the other provision of the

Constitution. It is also well settled that when two views are

possible, one making the Act of the Legislature or the

provision thereof to be Constitutional and other

Unconstitutional, the Court in exercise of its power of

judicial review shall prefer the former. It is none of the

concern of the Court, exercising the power of judicial review

to term a Legislation to be unwise and declare the same to be

ultra vires. After all an Act of the Legislature represents the

will of the people and that can not be lightly interfered with.

As the aforesaid proposition of law is so well settled

– 11 –

that no detailed discussion is required. However, in

deference to Mr. Lalit Kishore, we may point out that in this

connection he has drawn our attention to the judgment of the

Supreme Court in the case of Government of Andhra

Pradesh Versus P. Laxmi Devi (Smt.) (2008) 4 SCC 720 and

our attention has been drawn to paragraph 46 of the

judgment, which reads as follows:-

“In our opinion, there is one and only one
ground for declaring an Act of the legislature
(or a provision in the Act) to be invalid, and
that is if it clearly violates some provision of
the Constitution in so evident a manner as to
leave no manner of doubt. This violation can,
of course, be in different ways e.g. if a State
Legislature makes a law which only Parliament
can make under List I to the Seventh Schedule,
in which case it will violate Article 246 (1) of
the Constitution, or the law violates some
specific provision of the Constitution (other
than the directive principles). But before
declaring the statute to be unconstitutional, the
Court must be absolutely sure that there can be
no manner of doubt that it violates a provision
of the Constitution. If two views are possible,
one making the statute constitutional and the
other making it unconstitutional, the former
view must always be preferred. Also, the court
must make every effort to uphold the
constitutional validity of a statute, even if that
requires giving a strained construction or
narrowing down its scope vide Rt. Rev. Msgr.
Mark Netto V. State of Kerala
13 SCC para 6 :
AIR para 6. Also, it is none of the concern of
the Court whether the legislation in its opinion
is wise or unwise.”

– 12 –

Reliance has also been placed on a judgment of the

Supreme Court in the case of State of Bihar and Others

Versus Bihar Distillery Ltd. and Others, (1997) 2 SCC 453

to contend that an enactment cannot be struck down by

saying that it is arbitrary. It has been pointed out that an Act

made by the Legislature represents the will of the people and

that cannot be lightly interfered with and its Constitutionality

has to be tested on the anvil of the Constitutional provision

and not on the ipse dixit of the petitioner that it is arbitrary.

In the said case it has been held as follows:-

x x x x x x

“The Court should not approach the enactment
with a view to pick holes or to search for
defects of drafting, much less inexactitude of
language employed. Indeed, any such defects
of drafting should be ironed out as part of the
attempt to sustain the validity/constitutionality
of the enactment. After all, an Act made by
the legislature represents the will of the
people and that cannot be lightly interfered
with. The unconstitutionality must be plainly
and clearly established before an enactment is
declared as void. The same approach holds
good while ascertaining the intent and
purpose of an enactment or its scope and
application. Now, the result of the impugned
judgment is that the Amending Act has
become an exercise in futility – a purposeless
piece of legislation. And this result has been
arrived at by pointing out some drafting errors
and some imperfection in the language
employed. If only the High Court had looked

– 13 –

into the minutes of the meeting dated 15-12-
1989 and the two letters of the Commissioner
aforementioned, it would have become clear
that the Amending Act was doing no more
than repeating contents of the said letters and
placing the legislative imprimatur on them. As
the impugned judgment itself suggests, part of
the imperfection of language is perhaps
attributable to translation from Hindi to
English. Indeed, it is surprising that the Court
has not even referred to the long preamble to
the Act which clearly sets out the context and
purpose of the said enactment. It was put in at
such length only with a view to aid the
interpretation of its provisions. It was not
done without a purpose. To call the entire
exercise a mere waste is, to say the least, most
unwarranted besides being uncharitable. The
Court must recognize the fundamental nature
and importance of legislative process and
accord due regard and deference to it, just as
the legislature and the executive are expected
to show due regard and deference to the
judiciary. It cannot also be forgotten that our
Constitution recognises and gives effect to the
concept of equality between the three wings
of the State and the concept of “checks and
balances” inherent in such scheme.”

Bearing in mind, the principle aforesaid, now, we

proceed to consider the submission of Mr. Jha. Section 3 of

Bihar Act, 15 of 2008 confers power to the Vice-Chancellor

to appoint Head of Department by following the principle of

rotation and the aforesaid provision itself makes it clear that

such an appointment shall be subject to the provisions of the

Act and the statute made thereunder. In that view of the

– 14 –

matter, it is difficult to hold that the Vice-Chancellor has

been conferred with unguided and un-canalized power. The

expression “as far as possible” used in Section 3 of Bihar

Act 15 of 2008 is well known in law. There may be

exceptional circumstances in which the application of the

principle of rotation becomes difficult or impossible and in

that circumstance the Vice-Chancellor has been conferred

with this discretion. This can be appreciated by citing an

example of a department in the University which may

consist of only one teacher and in that circumstance the

appointment of Head of Department cannot be by rotation.

Therefore, in our opinion, use of the expression „as far as

possible‟ in Section 3 of Bihar Act, 15 of 2008 shall not

render the provision ultra vires.

So far as Section 4 of Bihar Act, 15 of 2008 is

concerned, it inter alia provides that the Head of Department

shall hold office for a period of three years and a person

shall not „ordinarily‟ be appointed as the Head of

Department for a second consecutive term. Use of the

expression „ordinarily‟ in the aforesaid provision according

to the petitioners gives unguided authority to the Vice-

– 15 –

Chancellor to continue or not to continue a teacher as the

Head of Department for a second consecutive term. This

submission of the petitioners is totally on an erroneous

assumption that the Vice-Chancellor has been given

unguided power. The Legislature while amending the Act

seems to be conscious of the position that there may be a

case in which rotational system may not be feasible and a

person appointed as a Head of Department may have to be

appointed again as such, for a second consecutive term.

Possible abuse of a provision in the Act cannot be a ground

to declare the provision itself ultra vires. In case the Vice-

Chancellor of the University makes appointment not in

conformity with the provisions of the act that act of

appointment may be declared illegal, but the provision itself

on the ground of its possible abuse cannot be declared as

such.

Similarly, while attacking Section (6) of Bihar Act,

15 of 2008 which had added Sub-section 7 after Section 36

(6) of the Act it has been pointed out that Chancellor has

been given the power to frame statute of any subject of

common interest and in the garb of this power, he may frame

– 16 –

statute on any subject and in the process existence of Senate

and Syndicate in the University shall be meaningless. It is

pointed out that the expression “any subject of common

interest” used in Section 36 (7) of the Act having not been

defined, Chancellor shall exercise the powers to frame

statute on any subject. We do not find any substance in this

submission. Section 36 (7) as inserted by Section 6 of Bihar

Act, 15 of 2008 starts with non obstante clause and

Chancellor has been conferred with the power to frame

statute of „any subject of common interest‟. The expression

„common interest‟ is well known in law. In a case in which

the Chancellor chooses to frame statute on a subject not of

„common interest‟ that statute may be declared illegal, but

simply on the ground that the Chancellor in the garb of its

power under Section 36 (7) of the Act may frame statute in

respect of all matters itself shall not render the provision

ultra vires. Not only this, there are procedural safeguard in

Section 36 (7) of the Act. The Chancellor has been conferred

with the power to make statute on any subject of common

interest after obtaining the advice of the committee of three

Vice-Chancellors. Not only this the draft statute is required

– 17 –

to be sent to all the Vice-Chancellors for opinion and the

Chancellor is conferred with the power to give assent to the

statute with such amendment as may be in necessary in the

light of the opinion of the Vice-Chancellors. Therefore, the

Chancellor‟s power to frame statute on any subject of

common interest is not unguided. Further one cannot loose

sight of the fact that the Governor of the State is the

Chancellor of the Universities and it is not expected of the

holder of such a high office to travel beyond law. In any

view of the matter, the provision of law cannot be declared

ultra vires on fear of being abused.

It has been further contended that for appointment

as Head of Department the statute requires determination of

seniority and the seniority list having not been prepared, the

statute is unworkable. It has been pointed out that Article 1

of the statute provides that the headship of the department

shall be rotated only amongst the first four senior most

teachers and the seniority being one of the consideration, in

the absence of the gradation list, it cannot be given effect to.

It has also been pointed out that while framing the statute

only four senior most teachers have been made eligible also

– 18 –

smacks of arbitrariness. This submission in our opinion has

no substance. Various contingencies have been provided

under the statute for appointment of Head of Department. It

provides for rotating the Headship of Department amongst

the first four senior most teachers (Professors and Readers)

and in case there is no Professor it shall rotate amongst four

senior most Readers or less if the number of Readers in the

department is less than four. It has also provided that in a

case of non-availability of either a Professor or Reader in the

department, the headship of the department may be rotated

amongst teachers of the Department. Thus, the statute has

taken note of various contingencies. At the first instance, it

has to be rotated amongst four senior most teachers

(Professor and Reader). The allegation that the seniority list

of the teachers does not exist, though has been denied by the

respondents, but even if we assume in favour of petitioners

that there is no published gradation list that itself shall not

make the Statute unworkable. For giving effect to the

provisions of the Statute, nothing prevents the University to

prepare the gradation list and make appointment as Head of

Department.

– 19 –

It has next been contended that applying the

provisions, as amended, shall deprive the present incumbents

to continue as Heads of department and consequently

deprive them the various privileges attached to it. According

to the petitioners application of the statute to the Heads of

Department presently holding that office is arbitrary. We do

not find any substance in the submission of the petitioners.

As stated earlier there is no post of Head of Department and

no specific scale of pay is provided for the post. True it is

that certain privileges are attached to that office, but

deprivation of that itself shall not make the provision illegal.

In the absence of any post of Head of Department, it cannot

be said that the petitioners have vested right to continue as

Heads of Department. As the petitioners have no vested right

to continue as the Heads of Department, deprivation of those

privileges on their relinquishing the office of Heads of

Department shall not make the provision arbitrary. It is

worth mentioning here that Section 27 (6) (c) of the Act as

inserted by Bihar Act, 15 of 2008 had fixed the tenure of the

office of the Head of Department for a period of three years.

Section 2 of Bihar Act, 15 of 2008 in specific terms provides

– 20 –

that it shall come into force at once. When Section 27 (6) (c)

of the Act provides that the Head of Department shall hold

office for a period of three years for the purpose of

calculation the office held by an incumbent prior to

commencement of the Act has to be taken into account. It is

well settled that prospective legislation can cover those cases

in which the person had held the office prior to its

commencement. Reference in this connection can be made

to a decision of the Supreme Court in the case of Sajjan

Singh Versus State of Punjab, AIR 1964 SC 464 in which it

has been held as follows:-

“A statute cannot be said to be retrospective
“because a part of the requisites for its actions
is drawn from a time antecedent to its
passing” (Maxwell on Interpretation of
Statutes, 11th Edition, p. 211; see also state of
Bombay V. Vishnu Ramchandra, AIR 1961
SC 307. Notice must be taken in this
connection of a suggestion made by the
learned counsel that in effect sub-sec. (3) of S.
5 creates a new offence in the discharge of
official duty, different from what is defined in
the four clauses of S. 5(1). It is said that the
act of being in possession of pecuniary
resources or property disproportionate to
know sources of income, if it cannot be
satisfactorily accounted for, is said by this
sub-section to constitute the offence of
criminal mis-conduct in addition to those
other acts mentioned in cls. a, b, c and d of S.
5(1) which constitute the offence of criminal
misconduct.”

– 21 –

Reference in this connection can also be made to a

decision of the Supreme Court in the case of Dalip Versus

Mohd. Azizul Haq and Another, 2000 (3) SCC 607 in which

it has been held as follows:-

“The High Court further concluded that the
amendments have no retrospective effect.
The provision came into force when the
appeal was pending. Therefore, though the
provision is prospective in force, has
“retroactive effect”. This provision merely
provides for a limitation to be imposed for
the future which in no way affects
anything done by a party in the past and
statutes providing for new remedies for
enforcement of an existing right will apply
to future as well as past causes of action.
The reason being that the said statutes do
not affect existing rights and in the present
case, the insistence is upon obtaining of
permission of the Controller to enforce a
decree for eviction and it is, therefore, not
retrospective in effect at all, since it has
only retroactive force.”

It has lastly been submitted that some of the

petitioners had held the office of the Head of Department for

long time and they are to superannuate from service very

soon and hence it shall be un-equitable to deny them the

privilege of the office of the Head of Department. Equity

comes into picture only when the law on the subject is silent.

It is the wish of the legislature to make the office of Head of

– 22 –

Department to be rotational and in the face thereof any

direction by this Court for continuance of such Heads of

Department till their retirement shall stare at the face of the

legislature. The wish of the legislature is meant to obeyed

and this Court in exercise of power of judicial review would

not like to curtail the same.

In their result, we do not find any merit in these

applications and they are dismissed accordingly, but without

any order as to cost.

Patna High Court (Chandramauli Kr. Prasad, ACJ.)
Dated 13th day of
January, 2009
P.K./A.F.R.

(Dr. Ravi Ranjan, J.)

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