Full Judgement
Dr. Ram Tawakya Singh Vs. State of Bihar and others
[Civil Appeal No. 6831 of 2013 arising from SLP(C) No. 8066 of 2013]
State of Bihar and others Vs. Dr. Ram Tawakya Singh and others
[Civil Appeal No. 6830 of 2013 arising from SLP(C) No. 12409 of 2013]
Dr. Ram Tawakya Singh Vs. State of Bihar and others
[Writ Petition (C) No. 158 of 2013]
G.S. SINGHVI, J.
1. Leave granted in the special leave petitions.
2. Dr. Ram Tawakya Singh, who had filed writ petition before the Patna High Court for quashing the appointments of Vice - Chancellors and Pro Vice - Chancellors of different Universities in the State of Bihar, has questioned the directions contained in order dated 7.12.2012 passed by the Division Bench of that Court. The State of Bihar and two others have also filed an appeal against the order of the High Court and simultaneously questioned the notifications issued by the Chancellor for appointment of Vice - Chancellors and Pro Vice - Chancellors. Dr. Ram Tawakya Singh has filed Writ Petition No.158/2013 for quashing the appointments of the private respondents as Vice - Chancellors and Pro Vice - Chancellors.
3. The background facts
3.1 By Notifications dated 9.4.2010 and 15.4.2010, the Chancellor appointed Dr. Arvind Kumar and Dr. Subhash Prasad Sinha as Vice - Chancellor of Magadh and Veer Kunwar Singh Universities, respectively. The same were challenged by Dr. Pramod Kumar Singh and Dr. Ram Tawakya Singh in CWJC No.8141/2010 on the ground that the Chancellor had not consulted the State Government as per the requirement of Section 10(2) of the Bihar State Universities Act, 1976 (for short, 'the BSU Act'). The learned Single Judge of the Patna High Court allowed the writ petition and quashed the notifications issued by the Chancellor. He referred to the affidavits filed by the parties, the documents produced by them as also the documents summoned by the Court and observed:
"23. From the various averments as well as the relevant extract of the notings of the file annexed with the supplementary counter affidavit filed on behalf of the State there is sufficiency of material to show that the stand of the State is un-ambiguous that there was no consultation of any kind on the issue of appointment of Vice Chancellors including the two Vice Chancellors whose appointments are under challenge in the present writ application. The Court opines that if there was any consultation, there would not have been occasion for the Minister or the State to take such clear and categorical stand on the issue of consultation and to annex all those notings of the file to show that there was actually no consultation, so far as the State was concerned.
24. Now, let us take notice of the stand taken by the office of the Chancellor on whose behalf counter affidavit dated 23.03.2011 was initially filed. This counter affidavit has been sworn by one Kumar Braj Kishore Sahani, who is stated to be the Joint Secretary in the Governor's Secretariat and he has stated that he was well acquainted with the facts and circumstances of the case. The affidavit also states that he has been authorized to swear affidavit in this case on behalf of respondent no. 2 i.e. Chancellor of Universities, Raj Bhawan, Patna. What is relevant in this affidavit is paragraph 5 which is being reproduced for ready reference :- "That the Vice Chancellor of V.K.S. University, Ara and the Vice Chancellor of Magadh University, Bodh Gaya have been appointed by the Hon?ble Chancellor in consultation with the State Government on 29th March, 2010, and Notifications of appointments of Vice Chancellors as per provisions of Section 10(2) of the B.S.U. Act, 1976 were issued from the Chancellor's Secretariat on 9.4.2010 (Ann. 7 of the I.A.) and on 15.4.2010 (Ann. 8 of the I.A.). It is wrong to allege that there had been no consultation with the State Government."
25. A stand has been taken on behalf of the Chancellor that since the notification itself talks in terms of consultation with the State Government on 29.03.2010, then it is a complete answer to the controversy which have been created in the matter of appointment of two Vice Chancellors because nothing more is required to be seen beyond the notification.
26. Court was not satisfied with such a sweeping stand taken on behalf of the Chancellor, in view of other over-whelming evidence which have been brought on record not only by the petitioners but also by the State Government.
27. In this background, the Court directed production of the file relating to consultation which supposedly took place with the State Government on 29.03.2010.
28. Learned Senior Counsel representing the Chancellor, namely, Mr. Y. V. Giri tendered a file for perusal by the Court to show that there was consultation with the then H. R.D. Minister on the issue, based on which the Chancellor made the appointments of the two Vice Chancellors. The file in question is file No. ACT - 01/10 which has an endorsement "Bihar State Universities Tribunal Act." Reliance was placed by the learned Senior Counsel representing the Chancellor to pages 51, 52 and 53 of the said file. The Court observed that since the file in question did not relate to appointment of Vice Chancellors but with regard to constitution of a University Tribunal and the objections of the Governor to ratification of the said bill. The relevant pages, namely, page nos. 51, 52 and 53 of the said file was ordered to be brought on record by way of an affidavit so that all the parties to the dispute including the Court had the benefit of looking into the same closely on the question of consultation with the State.
29. A counter affidavit again on behalf of respondent no. 2 i.e. the Chancellor duly sworn by Kumar Brij Kishore Sahani, Joint Secretary in the Governor's Secretariat dated 18.04.2011 was filed annexing the said pages as Annexure R-2/1. This is supposed to be the portion of the file in which the so called consultation for appointment of Vice Chancellors took place or its evidence is reflected though the main minutes in the file deals with constitution of Bihar Universities Tribunal.
30. Since the noting on the question of consultation is in the purported hand of the Chancellor which speaks for itself, therefore, the Court feels that all the pages itself should be reproduced as part of this order. Annexure- R-2/1, therefore, is duly scanned and forms part of this order. The note of the Chancellor is not fully legible.
32. The Court has meticulously gone through the said note of the Chancellor which has been purportedly made in his own pen. The first thing which the Court notices is that the note does not have any initial of the Minister and it has been incorporated in a file not even related to the question of appointment of Vice Chancellors to the Universities of Bihar muchless the Universities in question. There is obvious evidence that the visit of the Minister to the Raj Bhawan and the discussion he had with the Chancellor, primarily, related to the objections the Governor had in giving his assent to the Universities Tribunal Bill, which was pending approval of His Excellency for many a months, if not more than a year. Another significant aspect which emerges from the noting is that no separate Minutes came to be drawn up on a separate file or piece of paper as if Chancellor's Secretariat lacks stationery or Secretarial assistance.
It was not even sent to the Minister for his signature or acknowledgment of what was recorded. It also shows that even a file was not opened on the issue of appointment to such important posts of Vice Chancellors. What was the compelling circumstance under which such a noting was done remains a mystery wrapped in an enigma. A reading of the said note, even if it is accepted as evidence of the so called consultation, it does not show that the two names were even mentioned for appointment as Vice Chancellors to the two Universities, namely, Magadh University or Veer Kunwar Singh University, in the so called discussion. There is generality of discussion that vacancies are existing in the Universities and there was some urgency of filling up those vacancies on due priority. But that by itself did not mean by giving a go bye to the law.
33. It is also not further understood or explained as to why the so called "Minutes", if at all, could not be drawn up subsequently and referred to the concerned Minister of H.R.D. for obtaining his signature as a proof of his agreeing of what was recorded therein. The Court is not aware of any Minutes being drawn up unilaterally without any endorsement or acknowledgment thereto of the parties to such consultation or deliberations. It is also not understood as to what was the occasion for the Chancellor to make such endorsement on a file and on a Minute which dealt through and through with regard to objections His Excellency had to give assent to a Bill relating to constitution of a Tribunal for the Universities.
34. Court has serious reservation whether the above exercise amounts to consultation on behalf of the State, based on which the Chancellor could go ahead and make unilateral appointments of Vice Chancellors, without even basic materials or subject of consultation existing before the two authorities. How did the Chancellor zero down on these two names still stands a mystery and unexplained.
35. No further comments on the issue as well as the so called material of consultation is required to be offered by the Court. Inferences are obvious. The Court can now well appreciate the background to the H.R.D. Minister?s notings and letters denying any consultation on the issue of appointment of Vice Chancellors. Though he does accept that his visit to Raj Bhawan related to discussion on the Tribunal Bill and that alone, the stand of the Minister stands corroborated and seems more closer to the actual state of affairs, as noting by the Chancellor is in the file relating to the University Tribunal Bill and that too on the page of the Minutes dealing with the Tribunal Bill.
36. The Court, therefore, has serious reservation or doubt whether this evidence or proof can be taken as the ultimate answer or material showing consultation between the State and the Chancellor, meeting the requirement of consultation undern section 10(2) of the Act, vesting him with the authority to make appointments at his level on the post of Vice Chancellors to the two Universities." (emphasis supplied)
3.2 The learned Single Judge then adverted to the judgments of this Court in Union of India v. Sankat Chand Himatlal Sheth and another AIR 1977 SC 2328, S.P. Gupta v. Union of India AIR 1982 SC 149, Gauhati High Court and another v. Kuladhar Phukan (2002) 4 SCC 524 and held:
"51. There could be an arguable case that even the Chancellor has some flexibility with regard to suggesting names which may come within his knowledge or domain but those details and opinion must be shared and deliberated between the State Government and the Chancellor and some kind of opinion reached, before it can be said that there was consultation with regard to the persons who are fit or otherwise deserving to be appointed as Vice Chancellors. Obviously, the manner and the way appointments to the two posts have been made, in the opinion of this Court, does not satisfy the requirement of consultation and there is much a-miss with regard to the way the whole exercise has been carried out at the office of the Chancellor and in the manner in which Chancellor has gone about making appointments to the post.
52. Consultation with the State is a must. Consultation with the State must be effective. Consultation also means placing of materials between the consulting and the consulted party. There has to be proper deliberations by producing all materials duly recorded to show that such exercise was carried out and there was application of mind with regard to all those persons who may be otherwise eligible. If all these elements are missing and there is no evidence in this regard in existence, then the Court will have no hesitation in recording that any appointment made, may be at the behest or at the level of the Chancellor, would be in clear breach of the requirements of Section 10(2) of the Act. There is no absolute power of the Chancellor to make appointment on the post of Vice Chancellor or Pro Vice Chancellor at his level without the consultation with the State within the meaning of law enunciated by Courts and as mandated and that alone would satisfy the requirement of consultation under section 10(2) of the Act.
53. In this case there are predominant materials to show that there was never any consultation with any State authorities and the Chancellor on the question of appointment of two Vice Chancellors. If the two Vice Chancellors came to be appointed in breach of Section 10(2) of the Act, then the appointment will have to be interfered with and the issue cannot be allowed to rest." (emphasis supplied)
3.3 Letters Patent Appeal Nos. 822 and 824 of 2011 filed by Dr.Subhash Prasad Sinha and Dr. Arvind Kumar, respectively were dismissed by the Division Bench of the High Court vide judgment dated 8.9.2011, paragraphs 18 and 19 of which are extracted below:
"18 The word "shall" is only indicative. The need of consultation is between two constitutional authorities, one is the Chancellor whose rule 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 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 judgment of the Supreme Court in the case of Indian Administrative Service (SCS) Association v. 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 judgment approves that prior consultation is mandatory and moreso 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 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." (emphasis supplied)
3.4 The special leave petitions filed by the two appointees, which were registered as SLP (C) Nos. 27644/2011 and 27725/2011, were dismissed by this Court on 29.9.2011.
3.5 During the pendency of the letters patent appeals before the High Court, the Chancellor issued Notifications dated 1.8.2011 and 3.8.2011 for appointment of as many as ten persons as Vice - Chancellors and Pro Vice - Chancellors of different Universities of the State. The details of these appointments are as under:
Sl. No.
Notification date
Memo No.
Name
Appointed as
1
1/8/2011
BSU-13/2011-1789(GS (I)
Dr. Shambhu Nath Singh
Vice - Chancellor of Patna University, Patna
2
1/8/2011
BSU-13/2011-1834(GS (I)
Dr. Bimal Kumar
Vice - Chancellor of B.R.A. University, Muzafar
3
1/8/2011
BSU-13/2011-1864(GS (I)
Dr. Ram Vinod Sinha
Vice - Chancellor of J.P. University, Chapra
4
1/8/2011
BSU-13/2011-1819(GS (I)
Dr. Arun Kumar
Vice - Chancellor of B.N. Mandal University, Madhepura
5
1/8/2011
BSU-13/2011-1849(GS (I)
Dr. Arvind Kumar Pandey
Vice - Chancellor of K.S.D. Sanskrit University, Darbhanga.
6
1/8/2011
BSU-13/2011-1804(GS (I)
Dr. Md. Shamsuzzoha
Vice - Chancellor of Maulana Maharul Haque Arabic & Persian University, Patna
7
1/8/2011
BSU-13/2011-1924(GS (I)
Dr. Pushpendra Kumar Verma
Pro Vice - Chancellor of B.N. Mandal University, Madhepura
8
1/8/2011
BSU-13/2011-1894(GS (I)
Dr. Kumaresh Prasad Singh
Pro Vice - Chancellor of L.N. Mithila University, Darbhanga
9
1/8/2011
BSU-13/2011-1879(GS (I)
Dr. Sultana Khushood Jabeen
Pro Vice - Chancellor of Maulana Mazharul Haque Arabic & Persian University, Patna
10
3/8/2011
BSU-13/2011-1941(GS (I)
Dr. Lal Keshwar Prasad Singh
Pro Vice -Chancel lor of Patna University
3.6 The afore-mentioned appointments also became subject matter of challenge in C.W.J.C. No.15123 of 2011 filed by Dr. Ram Tawakya Singh mainly on the ground that the Chancellor had not consulted the State Government as per the mandate of Section 10(2) of the BSU Act and Section 11(2) of the Patna University Act, 1976 (for short, 'the PU Act').
3.7 In the counter affidavits filed by the appointees an objection was taken to the locus standi of Dr. Ram Tawakya Singh on the premise that he was not eligible to be appointed as Vice - Chancellor or Pro Vice - Chancellor. The Division Bench of the High Court rejected the objection by observing that being a member of the teaching faculty of a University in the State, the petitioner was legitimately entitled to see that appointments to the offices of Vice - Chancellor and Pro Vice - Chancellor are made in accordance with law from amongst those who are qualified and are meritorious. The Division Bench then considered the question whether the Chancellor had made appointments in consultation with the State Government and answered the same in negative by recording the following observations:
"It is evident that the Chancellor had the meeting with the Chief Minister, and that both the Chancellor and the Chief Minister were aware of the subject matter of discussion. The Chief Minister being the representative of the State Government, we cannot say that the Chancellor did not consult the State Government or that the State Government was not aware of the names selected by the Chancellor.
But, in our opinion, it is not enough that the State Government was aware of the subject matter. If the State Government were satisfied by mere discussion, we would say that the State Government failed in discharge of its duty or abdicated its power.
A proper consultation would be when the Chancellor forwards the names selected by him with the relevant materials and the State Government considers such names and scrutinizes the materials, the State Government may have or may collect further materials from its own resources and records its own opinion in respect of each such name. The matter of appointment of Vice - Chancellors or Pro Vice - Chancellors cannot be taken lightly. It would be the duty of the Chancellor and the State Government to select the best person or at least not to select a wrong person.
We do not propose to enter into the eligibility, academic qualifications, general reputation, integrity or moral standards of any of the respondents Vice - Chancellors or Pro Vice - Chancellors. It is the function of the Chancellor to examine the materials on hand and to consider the opinion of the State Government and the materials forwarded by the State Government, if any. Once, the Chancellor has examined the materials and is satisfied, that would be sufficient compliance with the statutory provisions.
We do not propose to say that the Chancellor is required to receive recommendations from the State Government or that the opinion of the State Government is binding upon the Chancellor. No, that is not what the Legislature has intended. All that the Legislature has intended is that the Chancellor should obtain opinion of the State Government before he makes the appointment of Vice - Chancellors or Pro Vice - Chancellors selected by him. The opinion of the State Government may or may not be accepted by the Chancellor. The Chancellor being the supreme authority, it is the decision of the Chancellor which shall prevail, but not without obtaining the opinion of the State Government on the proposed names.
As recorded hereinabove, at no point of time before the Chancellor discussed the matter with the Chief Minister, the names proposed by the Chancellor were disclosed to the State Governent. In absence of the disclosure of the names, the State government could not have applied its mind or formed an opinion. A mere discussion without application of mind or forming an opinion, in our view, is not the "Consultation" envisaged by the above referred Acts of 1976." (emphasis supplied)
3.8 In view of the findings recorded by it, the Division Bench of the High Court allowed the writ petition and quashed the appointments of Vice - Chancellors and Pro Vice - Chancellors and directed that fresh appointments be made in consultation with the State Government. The operative portion of order dated 7.12.2012 passed by the Division Bench reads thus: "For the aforesaid reasons, we hold that the appointment of the respondent nos. 20 to 29 as Vice - Chancellors or Pro-Vice - Chancellors in the concerned Universities have been made without "Consultation" as envisaged by Sections 10(2) and 12 of the Bihar Universities Act, 1976 and by Sections 11 and 14 of the Patna University Act, 1976. All the ten appointments are, therefore, vitiated and are void ab initio. For the aforesaid reasons, CWJC No. 15123 of 2011 is allowed.
The impugned notifications dated 1st August, 2011 and 3rd August, 2011 are quashed and set aside. The appointment of the respondent nos. 2O to 29 is held to be illegal and contrary to the Bihar Universities Act, 1976 or the Patna University Act, 1976, as the case may be, and are set aside. The Chancellor will, within one month from today, propose names for appointment of Vice - Chancellors and Pro Vice - Chancellors in the above referred Universities to the State Government with the relevant materials. The State Government will, within 30 days there from, forward its opinion in respect of all such names to the Chancellor. After receipt of such opinion, the Chancellor will make the appointment of Vice - Chancellors and Pro Vice - Chancellors in the respondents Universities. We make it clear that the petitioner will have no right to submit his candidature or a right to be considered for appointment as Vice - Chancellor or Pro Vice - Chancellor in any of the respondents Universities."
4. Dr. Ram Tawakya Singh has challenged the direction given by the High Court mainly on the ground that the selection of Vice - Chancellors and Pro Vice - Chancellors cannot be left in the hands of the Chancellor without any mechanism for preparation of panel of candidates by a Search Committee consisting of academicians and educationists. He has also questioned the direction given by the High Court virtually debarring him from being considered for appointment as Vice - Chancellor or Pro Vice - Chancellor. The State of Bihar and others have challenged the order of the High Court on the ground that the view taken by it on the scope of Sections 10(2) and12(1) of the BSU Act and Sections 11(2) and 14(1) of the PU Act is contrary to the one expressed by the coordinate Bench in LPA Nos. 822 and 824 of2011.
5. On 18.3.2013, this Court heard the arguments of learned counsel for the State and some of the private respondents who had appeared on caveat and stayed the operation of Notifications dated 9.2.2013 and 19.2.2013issued by the Chancellor appointing the private respondents as Vice - Chancellors and Pro Vice - Chancellors. That order is being reproduced below because one of the contentions urged by the counsel for the private respondents is that the appellants had misled the Court in passing an interim order: "Delay condoned.
This petition is directed against order dated 7.12.2012 passed by the Division Bench of the Patna High Court in Civil Writ Jurisdiction Case No. 15123 of 2011, whereby certain directions were given in the mater of appointments of Vice - Chancellors and Pro Vice - Chancellors in various universities of the State. The operative portion of the High Court's order reads thus: "For the aforesaid reasons, we hold that the appointment of the respondent nos. 20 to 29 as Vice - Chancellors or Pro Vice - Chancellors in the concerned Universities have been made without "Consultation" as envisaged by Section 10(2) and 12 of the Bihar Universities Act, 1976 and by Sections 11 and 14 of the Patna University Act, 1976. All the ten appointments are, therefore, vitiated and are void ab initio.
For the aforesaid reasons, CWJC No. 15123 of 2011 is allowed. The impugned Notifications dated 1st August 2011 and 3rd August, 2011 are quashed and set aside. The appointment of the respondent nos. 20 to 29 is held to be illegal and contrary to the Bihar Universities Act, 1976 or the Patna University Act, 1976, as the case may be, and are set aside. The Chancellor will, within one month from today, propose names for appointment of Vice - Chancellors and Pro Vice - Chancellors in the above referred Universities to the State Government with the relevant materials. The State Government will, within 30 days there from, forward its opinion in respect of all such names to the Chancellor. After receipt of such opinion, the Chancellor will make the appointment of Vice - Chancellors and Pro Vice - Chancellors in the respondents Universities.
We make it clear that the petitioner will have no right to submit his candidature or a right to be considered for appointment as Vice - Chancellor or Pro Vice - Chancellor in any of the respondents Universities." (Copied from the SLP Paper book) The petitioners have also questioned the consequential actions taken by the Chancellor for appointment of Vice - Chancellors and Pro Vice Chancellors in various Universities of the State. We have heard Shri Harish Salve, learned senior counsel for the petitioners and perused the record. Issue notice, returnable on 16.04.2013. Dasti, in addition, is permitted. Shri Amit Pawan, learned counsel instructing Dr. Rajeev Dhawan, Shri Amrendra Sharan and Shri Uday U Lalit, learned senior counsel accepts notice on behalf of respondent nos. 20, 21 and 22. Shri Harish Salve strongly pressed for stay not only of the order passed by the High Court, but also of notifications dated 9.2.2013 and 19.02.2013 issued by the Governor-cum- Chancellor, Bihar for appointment of the private respondents as Vice - Chancellors and Pro Vice - Chancellors of different Universities.
Dr. Rajeev Dhawan, S/Shri Amrendra Sharan and Uday U Lalit vehemently opposed the prayer made by Shri Salve. Dr. Dhawan submitted that the exercise undertaken by the Chancellor and the Government for appointment of Vice - Chancellors and Pro Vice - Chancellors cannot be questioned in the special leave petition which is essentially directed against order dated 7.12.2012 of the High Court and if any person feels aggrieved by the appointments made in furtherance of the directions given by the High Court, then he can avail appropriate legal remedy.
Learned senior counsel submitted that this Court can examine the legality of notifications dated 9.2.2013 and 19.02.2013 only if an independent writ petition is filed for that purpose. Dr. Dhawan was joined by Shri Sharan and Shri Lalit in making a submission that the prayer made by Shri Salve should not be accepted because only few of the candidates mentioned in the list annexed with communication dated 5.1.2013 sent by the Secretary to the Governor are shown to be facing criminal cases and any deficiency in their candidature cannot be used against the other respondents, who are fully qualified and have been found suitable for the posts of Vice - Chancellors and Pro Vice Chancellors. Learned counsel then submitted that it will not be desirable to create vacuum in the positions of Vice - Chancellors and Pro Vice - Chancellors because that would adversely affect the functioning of the Universities and the students community. In his rejoinder submissions, Shri Salve invited the Court's attention to the regulations framed by the University Grants Commission, which were circulated on 30.06.2010 for selection of Vice - Chancellors and Pro Vice - Chancellors of the Universities and claimed that even though Legislature of the State of Bihar had made appropriate amendments in the relevant enactments and forwarded the same to the Governor in the month of March, 2011, the latter has neither approved nor returned the same to the State Legislature.
We have considered the respective submissions. The record of the case shows that in the purported compliance of the direction given by the High Court on 7.12.2012, the Secretary to the Governor sent letter No. 2C/GS/GB dated 5.1.2013 to the Principal Secretary to the Chief Minister, Government of Bihar stating therein that in exercise of powers conferred upon him under Section 10(1) and (2) and Section 12(1) of the Bihar State Universities Act, 1976 (as amended up to date) as well as Sections 11 and 14 of the Patna University Act, 1976 (as amended up to date) and Sections 11(1) and (2) of the Nalanda Open University Act, 1995 (as amended up to date), the Chancellor proposes to appoint the persons named in Annexure-A and Annexure-B as Vice - Chancellors and Pro Vice - Chancellors against the vacancies existing in the Universities and sought the Chief Minister's view on the names.
In the last column of the lists enclosed with letter dated 5.1.2013, few lines were recorded about the capabilities of the candidates to be appointed as Vice - Chancellors and Pro Vice - Chancellors. In response to the aforesaid letter, the Principal Secretary to the Chief Minister of Bihar sent communication dated 21.1.2013 to the Special Secretary to the Governor, paragraphs 1 to 3 and last paragraph of which read as under:
"1. In compliance of the Hon'ble High Court order in the CWJC No. 10569 of 2011, the envisaged "Consultation" process has to be meaningful and based on substantive material. The order clearly mentions that "the legislature has cast a duty upon the State Government to scrutinize the names proposed by the Chancellor for appointment of Vice - Chancellors and Pro-Vice - Chancellors for their academic qualifications, experience, integrity and moral standards".
It is to bring to your notice that the list sent by you contains only qualifications and experience and that too in a very brief and inadequate manner. There is no record of their vigilance clearance or integrity and moral standards. Hence it is not possible for us to scrutinize the names as envisaged in the Hon'ble High Court order. 2. Further prima facie, this is to point out that the proposed list contains name of one such person who has the criminal proceedings pending against him i.e. Sl. No.4 of the proposed Vice Chancellors' List. Please refer page no.16 of the Hon'ble High Court order wherein it has been admitted by the advocate of the person referred above.
3. The list also do not mention the name of the University against which proposed names are contemplated for consideration. You are therefore requested to kindly arrange for the required information with details in your possession so that an effective consultation takes place between the consulting parties." (copied from the SLP paper book) Thereafter, the Secretary to the Governor sent letter dated 28.1.2013 to the Principal Secretary to the Chief Minister mentioning therein that if the latter is in possession of substantive and credible materials as to the integrity and moral standards of the persons named in the communication sent by the Governor's Secretariat, then the same may be forwarded for being placed before the Chancellor.
The Secretary to the Governor also wrote that if the Chief Minister has any record of judicial conviction, instead of merely criminal proceedings pending, against the name at serial no.4 in the list, then he may send the same for being considered by the Chancellor. After 12 days, the Principal Secretary to the Chief Minister sent letter dated 9.2.2013 to the Special Secretary to the Governor enclosing therewith summary of the report received from the Department of Education on various candidates mentioned in the list forwarded by the office of the Chancellor.
On the same date, the Governor-cum- Chancellor issued notification dated 9.2.2013 appointing the private respondents as Vice - Chancellors and Pro Vice - Chancellors of different Universities. In response to the Court's query, the learned senior counsel appearing for respondent Nos. 20 to 22 gave out that they are not in a position to say whether or not the amendments made by the State Legislature have been approved by the Governor. The question whether the Governor had kept pending for two years, the Bill passed by the State Legislature and whether there was any justification will require serious consideration by the Court at the time of final adjudication of the matter.
However, at this stage, we are prima facie satisfied that the selection of Vice - Chancellors and Pro Vice - Chancellors has not been made by following the procedure laid down in the UGC Regulations because no such Committee was constituted by the Chancellor for preparing panel of the candidates who could be considered for such appointments. We may also observe that even in the absence of UGC Regulations, appointment to the posts of Vice - Chancellors and Pro Vice - Chancellors could have been made by the Chancellor in consultation with the competent authority only after following some procedure consistent with the doctrine of equality enshrined in Article 14 of the Constitution so as to enable all eligible persons to compete for selection.
In a somewhat similar case, this Court had an opportunity to consider the legality of the appointment of Director of the Indian Statistical Institute and it was held that selection made without following the procedure laid down in the bye-laws of the society and issuing public notice was contrary to Article 14 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute and others (1983) 4 SCC 582). De hors the above observations, we are of the view that even though the special leave petition is primarily directed against the order of the High Court, this Court can take cognizance of the subsequent events including notifications dated 9.2.2013 and 19.2.2013 issued by the Chancellor and pass appropriate order in the matter.
A reading of the letter sent by the Principal Secretary to the Chief Minister to the Special Secretary to the Governor on 9.2.2013 shows that criminal complaints are pending against some of the candidates who were proposed by the Chancellor to be appointed as Vice - Chancellors and Pro Vice - Chancellors and were actually appointed against those posts on 9.2.2013. Against two of them charge sheets have already been filed in the competent Court. Against one of the candidates, charge sheet has been filed under Sections 341/342/506 and other provisions of IPC (Indian Penal code, 1860) read with Section 3(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Against another candidate, a case has been registered under Section 420/409/467/468/471 and other provisions of IPC read with Sections 13 and 14 of Prevention of Corruption Act. One more case is said to have registered against him under Sections 420/409/467 and other provisions of IPC. All this, prima facie, indicate that the Chancellor did not at all apply his mind on the question of suitability and desirability of appointing the particular candidates as Vice - Chancellors and Pro Vice - Chancellors.
Why this was done would require serious scrutiny by the Court which is possible only after giving opportunity of hearing to the private respondents and the Chancellor. However, the manner in which the Chancellor has made appointments albeit in the guise of adhering to the time schedule fixed by the Division Bench of the High Court leaves much to be desired. The High Court had not fixed any time limit for the Chancellor to take final decision after receiving the opinion of the State Government. One month's time was fixed by the Court for the Chancellor to propose the names for appointment of Vice - Chancellors and Pro Vice - Chancellors in various Universities and forward the same to the Government with relevant materials. The State Government was required to forward its opinion within next 30 days. However, there was no time limit for Chancellor to take final decision in the matter.
Notwithstanding this, the Chancellor exhibited undue haste and ensured that the notifications appointing the particular candidates are issued in less than 24 hours of the receipt of the opinion of the Chief Minister. It is a matter of serious concern that candidates facing criminal prosecution have been appointed as Vice - Chancellors/Pro Vice - Chancellors. In the premise aforesaid, we are convinced that it is a fit case in which an interim order should be passed by the Court. Accordingly, the operation of notifications dated 9.2.2013 and 19.2.2013 issued by the Governor-cum- Chancellor, Bihar appointing the private respondents as Vice - Chancellors and Pro Vice - Chancellors of different Universities is stayed and they are restrained from functioning as Vice Chancellors and Chancellors of the concerned Universities.
With a view to ensure that functioning of the various Universities is not jeopardized, we direct that as a purely stop gap arrangement, the senior most Deans in the Universities shall discharge the function of the Vice - Chancellors and Pro Vice - Chancellors. It shall be the duty of the petitioners to serve the remaining respondents well before 16.04.2013. A copy of this order be sent to the Secretary to the Governor of Bihar by fax. He shall ensure that the entire record relating to the selection of Vice - Chancellors and Pro Vice - Chancellors be sent to this Court in sealed envelopes through a messenger and deposited with the Secretary General of this Court on or before 10.04.2013. Copies of this order be also sent to the Registrars of all the Universities by fax. They should place the order before the senior most Dean in the concerned University so as to enable him to discharge the function of Vice - Chancellor till the next date of hearing i.e. 16.4.2013."
6. In compliance of the direction given by the Court, Shri Sudhir Srivastava, Special Secretary to the Governor-cum- Chancellor sent the relevant file in a sealed envelope along with letter dated 27.3.2013. The sealed cover was opened in the Court and the papers contained in the file were perused. Subsequently, the file was made available to the learned counsel for the parties for their perusal and all of them availed the opportunity. The counsel representing State of Bihar also produced FileNo.15/M 1-02/12 (part), Computer No.7058/13 maintained by the Education Department of the State.
7. A careful scrutiny of these files reveal the following facts :
i. The order passed by the Division Bench of the High Court was placed before the Governor-cum- Chancellor on 12.12.2012.
ii. On 5.1.2013, the Governor-cum- Chancellor passed an order proposing appointments of Prof. (Dr.) Bimal Kumar, Dr. (Prof.) Arun Kumar, Dr. RamVinod Sinha, Dr. Kumaresh Prasad Singh, Dr. Sheo Shankar Singh, Dr. Samrendra Pratap Singh, Dr. Tapan Kumar Shandilya as Vice Chancellors and Dr. Ramayan Prasad, Dr. Birendra Kumar Singh, Dr. Dharma Nand Mishra, Dr.Sultana Khushood Jabeen, Prof. (Dr.) Shailendra Kumar Singh, Dr. Padmasha Jha, Dr. Anwar Imam, Prof. (Dr.) Chakradhar Prasad Singh and Prof. (Dr.)Raja Ram Prasad as Pro Vice Chancellors. On the same day, Special Secretary to the Governor sent letter No. 2C/GS/GB dated 5.1.2013 to the Principal Secretary to the Chief Minister, Bihar conveying the Chancellor's proposal to appoint the persons whose names were mentioned in Annexure-A and Annexure-B attached to the letter as Vice - Chancellors and Pro Vice - Chancellors of different Universities. The details contained in the two charts are quite significant and, therefore, the same are reproduced below:
ANNEXURE 'A'
Sl. No.
Names
Qualification
Experience & Posts held
Remarks
1
Prof. (Dr) Bimal Kumar
M.A.(English), Ph.D.
Principal and Registrar (Commissioned and at presentVice Chancellor, BRA Bihar University, Muzaffarpur. Additional charge Vice Chancellor, TM Bhagalpur University, Bhagalpur
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
2
Dr. Prof. Arun Kumar
M.A. (Economics), Ph.D.
University Professor, PG Deptt. Of Economics, Principal, MM College, Vikram and at present Vice Chancellor, BN Mandal University Madhepura. Additioal charge Vice Chancellor, Magadh University, Bodh Gaya and Nalanda Open University, Patna.
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
3
Dr. Ram Binod Sinha
M.A. Ph.D.
Professor & HoD, Deptt. of Hindi and at present Vice Chancellor, JP University, Chapra
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
4
Dr. Arvind Kumar Pandey
MA (Ancient India and Asian Studies, M.A. (History), Acharya (MA in Sanskrit Sahitya) L.L.B., Ph.D
Reader, Principal (Commissioned) and at present Vice Chancellor, KSDSanskrit University, Darbhanga
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
5
Prof (Dr) Md. Shamsuzzoha
M.A. (Arabic), Ph.D. in Humanities (Arabic)
Professor & Head Deptt of Arabic, Patna University, Patna and at present Vice Chancellor, MMH Arabic & Persian University, Patna
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
6
Prof. Shambhu Nath Singh
PG Diploma in Journalism, Ph.D. (Mass Communication)
Director and Professor, IGNOU and at present Vice Chancellor, Patna University, Patna
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
7
Dr. Kumaresh Prasad Singh
M.A. Ph.D., LL.B.
Reader, Professor and Registrar (Commissioned) andat present Incharge Vice Chancellor, V.K.S. University, Ara
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
8
Dr. Anjani Kr. Sinha
M.Sc. Ph.D.
Professor & Head, Deptt of Botany, BN Mandal University, Madhepura
Comprehensively considered most suitable. Not a word as to his/her qualification, eligibility & suitability in the judgement.
9
Dr. Sheo Shankar Singh
M.A. (Economics), Ph.D.
Principal, Maharaja College,Ara (VKS University, Ara)
Considered duly qualified and best suitable for the job
10
Dr. Samrendra Pratap Singh
M.B.B.S., M.D., Ph.D.
Principal (Retd), DMCH, Darbhanga and at present, Vice Chancellor, L.N. Mithila University, Darbhanga
Considered duly qualified and best suitable for the job
11
Dr. Tapan Kumar Shandilya
M.A. (Economics), Ph.D.
Assistant Professor, Principal, RLS College, Manjhaul and at present Pro Vice Chancellor, TM Bhagalpur University, Bhagarlpur
Considered duly qualified and best suitable for the job
ANNEXURE 'B'
Sl. No.
Names
Qualification
Experience & Posts held
Remarks
1
Dr. Ramayan Prasad
M.A., Ph.D.
HoD, Labour & Social Welfare, College of Commerce, Patna
Considered best suitable for the job.
2
Dr. Birendra Kumar Singh
M.A. Ph.D.
Associate Professor, University Deptt. of History, BRA Bihar University, Muzaffarpur
Considered best suitable for the job.
3
Dr. Dharma Nand Mishra
M.A., M.Com., LL.B., Ph.D.
Dean, Faculty of Law, MagadhUniversity, Bodhgaya and Principal, Nawada Law College, Nawada
Considered best suitable for the job.
4
Dr. Sultana Khushood Jabeen
M.A. (Urdu), Ph.D.(PU)
Reader and HoD, Urdu and Persian, VKS University, Araand former Pro Vice Chancellor, M.M.H. Arabic & Persian University, Patna
Considered best suitable for the job.
5
Prof.(Dr.) Shailendra Kumar Singh
M.A., Ph.D.
Principal, College of Commerce, Patna University and presently Registrar, Nalanda Open University, Patna
Considered best suitable for the job.
6
Dr. Padmasha Jha
M.A., Ph.D.
University Professor History(Retd), Former Pro Vice Chancellor, BRA Bihar University, Muzaffarpur and former Incharge Vice Chancellor, LNMU, Darbhanga
Considered best suitable for the job.
7
Dr. Anwar Imam
M.A. (Economics), B.Ed. and Ph.D.
Presently Controller of Examination, VKSU, Ara
Considered best suitable for the job.
8
Prof.(Dr.) Chakradhar Prasad Singh
M.A., Ph.D.
University Prof. & HoD of PGin English, Magadh University, Bodh Gaya. Dean, Faculty of Humanities,MU, Bodh Gaya.
Considered best suitable for the job.
9
Prof.(Dr.) Raja Ram Prasad
M.A., Ph.D. (Maithili)
University Professor & HoD of Maithili, B.N.M.U., Madhepura. Dean of Humanities, B.N.M.U., Madhepura
Most OBC Candidate. Considered best suitable for the job.
iii. The Principal Secretary to the Chief Minister forwarded the aforesaid letter to the Principal Secretary, Education Department, who recorded detailed note dated 12.1.2013. In the first place, he observed that the details of the persons mentioned in the charts were too brief and even this had not been indicated as to which candidate was proposed for the particular University. He then opined that the State Government may move the Supreme Court with the prayer for constitution of a Search Committee of experts to prepare a panel of eminent persons for the purpose of appointment of Chancellors and Vice - Chancellors. The note of the Principal Secretary, Education was approved by the Education Minister, the Principal Secretary to the Chief Minister and the Chief Minister. Thereafter, the Principal Secretary to the Chief Minister sent communication dated21.1.2013 to the Special Secretary to the Governor, the relevant portions of which read as under:
"To,
Shri Sudhir Shrivastava,
Special Secretary,
Governor Secretariat,
Governor House, Patna.
Patna,
dated 21 January, 2013.
Sub : Appointment of Vice Chancellors and Pro- Vice Chancellors.
Sir, With reference to your letter no. 20/GS/GB dated 5.1.2013, it seems necessary to raise some of the required and essential points to enable the Government to render its opinion for meaningful and effective Consultation with the Chancellor of the universities of State of Bihar.
1. In compliance of the Hon'ble High Court order in the CWJC No. 10569 of 2011, the envisaged "Consultation" process has to be meaningful and based on substantive material. The order clearly mentions that "the legislature has cast a duty upon the State Government to scrutinize the names proposed by the Chancellor for appointment of Vice - Chancellors and Pro-Vice Chancellors for their academic qualifications, experience, integrity and moral standards."
It is to bring to your notice that the list sent by you contains only qualifications and experience and that too in a very brief and inadequate manner. There is no record of their vigilance clearance or integrity and moral standards. Hence it is not possible for us to scrutinize the names as envisaged in the Hon'ble High Court order.
2. Further prima-facie, this is to point out that the proposed list contains name of one such person who has the criminal proceedings pending against him i.e. SI. No. 4 of the proposed Vice Chancellors' list. Please refer page no. 16 of the Hon'ble High Court order wherein it has been admitted by the advocate of the person referred above.
3. The list also do not mention the name of the University against which proposed names are contemplated for consideration. In these circumstances it is nearly impossible to properly scrutinize the names and form an opinion for a valid consultation as envisaged in the statutes and Hon'ble High Court's order. You are therefore requested to kindly arrange for the required information with details in your possession so that an effective consultation takes place between the consulting parties." (emphasis supplied)
iv. The Secretary to the Governor then sent letter dated 28.1.2013to the Principal Secretary to the Chief Minister and asked him to forward substantive and credible materials as to the integrity and moral standards of the persons named in letter dated 5.1.2013. It was also mentioned in the letter that record of judicial conviction, instead of merely criminal proceedings pending against the person named at serial no.4 in the list, may be sent for consideration of the Chancellor.
v. The letter of the Secretary to the Governor was sent by the Chief Minister's Secretariat to the Principal Secretary, Education, who wroteD.O.No.29/C/2013 dated 1.2.2013 to the Principal Secretary (Vigilance Department) with the request to provide update on vigilance matters with regard to the candidates. The Vigilance Department got conducted the necessary enquiries and submitted the required information to the Principle Secretary, Education.
vi. In the meanwhile, the Principal Secretary to the Chief Minister sent letter to the Special Secretary to the Governor pointing out that the matter has been referred to the Vigilance Department and the information is likely to become available in a few days. That letter reads as under:
"Government of Bihar
Chief Minister Secretariat
Letter No.4610032/CMS
4 February 2013
From,
Secretary to the Chief Minister,
Government of Bihar,
Patna.
To,
The Special Secretary,
Governor's Secretariat,
Raj Bhawan,
Patna.
Subject: Appointment of Vice Chancellors and Pro Vice Chancellors
Reference: Your letter no. 63, dated 28th January 2013.
Sir, This has reference to letter no. 144/PSC/CMS dated 21 January, 2013 and your letter no. 63/GS(l)/GB dated 28 January, 2013.
In letter dated 21st January, 2013 it was categorically mentioned that for valid, effective and meaningful consultation in regard to appointment of Vice - Chancellor/Pro Vice Chancellor in the State Universities it would be essential to have full and complete input in possession of Hon'ble Chancellor. A list containing names of prospective candidates has been forwarded by you. However, very sketchy information in regard to each of the candidates has been made available. No information regarding which of the candidate is proposed for appointment to which University has been provided.
It is to be noted that the list of name has been finalized by the Hon'ble Chancellor and therefore it has to be presumed that he is in possession of all relevant materials, such as document in support of eligibility /qualification, experience, moral character/integrity. Appointment in each University is an independent decision which has to be preceded by effective and meaningful consultation. In the absence of requisite materials, any exercise would appear as mere formality. As ordained by Hon'ble Court's order, the State Government is required to give it opinion. As the names have been short listed by Hon'ble Chancellor, it is considered imperative that State Government before tendering opinion should have full materials with specific detail as to which candidate is being considered for which University.
However, instead of responding to the Government's request, you have asked us to make available substantive and credible materials as to integrity and moral standards of persons included in the list. You have also mentioned to make available pending proceeding against the person at SI. No. 4.
Vice Chancellor/Pro Vice - Chancellor of University is expected to possess basic eligibility as prescribed by the Universities Grants Commission. Besides, the candidate is required to have credible experience of a high position and should be perceived to have good reputation. Serious allegation of misconduct as holder of the post for any omission or commission being investigated by State Vigilance/Police is sufficient reason not to recommend such a person.
Since the State Government has not been provided the grounds on which the candidates have been recommended or at least the due diligence that was undertaken before suggesting the names, it is impossible for the State Government to engage in a meaningful consultation. The State Government has requested the Vigilance Department for information based on simply the names of the candidates recommended, without any other information or bio data. It is likely that such information will be available in a few days.
The orders of the Hon'ble Court have been absolutely clear regarding the consultation process. Any hasty decision without conforming to the basic framework for consultation as outlined by the Hon'ble Court, will amount to a contravention of the Court's orders. The State Government would like to request that appointments should only be made after the process of consultation, as outlined in the Court's orders, are fully complied with." (emphasis supplied)
vii. On 8.2.2013, the Special Secretary to the Governor-cum- Chancellor recorded a note, which reads as under: "As per order of the Hon'ble Chancellor dated 05.01.2013, a list of names for appointment as Vice Chancellors and Pro-Vice Chancellors was sent to the Principal Secretary to Chief Minister vide this Secretariat letter No.20/GS/GB dated 5th January, 2013.
The Principal Secretary to Chief Minister, Bihar vide his letter No. 144/PSC/CMS dated 21 January, 2013 sought some clarifications against one person named in the list.
Thereafter, as directed by H.E. a reply was sent to the Principal Secretary to Chief Minister vide this Secretariat letter No.63 GS/GB dated 28 January, 2013 conveying him that in case he is in possession of substantive and credible materials as to integrity and moral standards of the persons named in the list, he was requested to forward the same to this Secretariat. It was also mentioned that similarly, if he has any record of judicial conviction, instead of merely criminal proceedings pending, against person in serial No. 4 in the list, he was also requested to send it for consideration of the Hon'ble Chancellor.
In response to our letter dated 28 January, 2013, the Secretary to Chief Minister, Bihar has sent his reply vide his letter No. 4610032/CMS dated 4th February, 2013 that State Govt. has requested the Vigilance Department for information regarding candidates proposed.
Today is 8/2/2013 and the State Government has not given any specific objection or opinion against the individual persons named in the list proposed by the Hon'ble Chancellor on 5/1/2013 to the State Government.
H.E. to take decision please."
viii. On the same day, the Governor-cum- Chancellor recorded the following note:
"As discussed with you, please prepare draft Notifications for appointment of VCs and Pro VCs as per relevant provisions of the Acts and in consonance with ratio decidendi / ratiocination of the High Court judgment for immediate issuance.
"The Governor-cum- Chancellor also approved the draft format of the notifications to be issued for appointing Vice - Chancellors and Pro Vice - Chancellors and directed that the same be issued when ordered by him. Belowthat note the Special Secretary recorded the following:
"Notification formats ready. H.E. may like to indicate names of VCs and date of issue of notifications.
"ix. On the next day, i.e., 9.2.2013, Governor-cum- Chancellor recorded the following noting: "Notifications in the approved format appointing the following persons as Vice - Chancellors may be issued on 9th February, 2013, at the Universities shown against their names. The order is to take immediate effect.
"Name of VC
University
Prof Shambhu Nath Singh, interim Vice - Chancellor, Patna University, Patna
Patna University, Patna.
Prof.(Dr.) Md.Shamsusuzzha, interim Vice - Chancellor, MMHArabic and Persian University, Patna
MMH Arabic and Persian University, Patna.
Prof.(Dr.) Arun Kumar, interim Vice - Chancellor, B.N. Mandal University, Madhepura
Magadh University, Bodh. Gaya.
Prof.(Dr.) Bimal Kumar, interim Vice - Chancellor, BRA Bihar University, Muzaffarpur
J.P. University, Chapra.
Dr. Ram Binod Sinha,interim Vice - Chancellor, J.P. University, Chapra
B.N. Mandal University, Madhepura.
Dr. Sheo Shankar Singh, Principal, Maharaja College, Ara
