Ramashankar Singh v. The State Of Bihar

illegal, inasmuch as first of all such appointment was made without any consultation with the State Government and thus, in violation of Section 15(2) of the Nalanda Open University Act,

1995. He has also highlighted the aspect that erst-while Vice Chancellor Mr. V.S. Dubey in his communication to the Chancellor by his various letter had laid stress that there was hardly any work for the post of Registrar and therefore, in place of the post of Registrar, should be kept in abeyance. It is the case of the petitioner that the then Chancellor in the year 2006 had kept the post of Registrar in abeyance and no appointment was made on the said post. It has also been asserted that such appointment of respondent no.5 was made by way of favour bestowed on him in the concerted pre-planned move of the Vice Chancellor Sri Tapan 4 Kumar Shandilya.

4. Mr. J.P. Shukla, learned senior counsel for the petitioner, in this regard, has submitted that even on 18.3.2013 at 11 AM in SLP No. 8066 of 2013 in which both the Chancellor as also the Vice Chancellor of Nalanda Open University had been impleaded as party respondent, an interim order was passed staying the operation of appointment of the Vice Chancellors in the Universities of Bihar. The impugned decision for appointment of the respondent no.5 on the post of Registrar was taken by the Chancellor and Mr. Shandilya, the Vice Chancellor, who had already been restrained from functioning, had accepted the joining of the respondent no.5 who surprisingly working at Mokama as a Lecturer was sought to be relieved on the same day and his joining was also accepted at 5 PM by Sri Shandilya who no longer remained even as a Vice Chancellor of the University.

5. Expanding his submissions further, Mr. Shukla has emphasized on the aspect that the respondent no.5 does not even possesses the requisite qualification for being appointed on the post of Registrar of the University as has been fixed by the University Grant Commission (UGC). According to him, the UGC norms lays down that for being appointed as a Registrar of the University, one should possess at least fifteen years of experience 5 as Lecturer (Sr. Scale)/Lecturer with eight years in Reader‟s grade along with experience in educational administration part from other requisite qualification.

6. In this case, a counter affidavit has also been filed by the respondent no.3 which has been sworn by the Registrar (Examination) of the University wherein it has been stated that there is nothing in the University record showing that any consultation was made with the State Government in the appointment of the respondent no.5 on the post of Registrar. It has further been stated that the University in fact has no information about the panel submitted by the then Vice Chancellor (Mr. Shandilya) to the Chancellor for the appointment of the Registrar and in fact there is no provision in the Nalanda Open University, 1994 for creation of panel by he Vice Chancellor for appointment on the post of Registrar. A specific stand has been taken in the counter affidavit of the respondent no.3, the Vice Chancellor of the University that in the year 2005 and again in the year 2006, the then Vice Chancellor of the University had made a proposal before the Hon‟ble Chancellor to keep the post of Registrar in abeyance and to create a new post of Joint Registrar (Examination) for the assistance the post of Registrar (Examination). Such proposal was also accepted by the Chancellor 6 whereafter a new post of Joint Registrar (Examination) came into existence in place of Registrar vide Chancellor‟s Office Letter No. 4753 dated 23.11.06 and the said post of Joint Registrar (Examination) is still existing.

7. It has also been stated in the counter affidavit of the Vice Chancellor of the University that no information is available in the University about the actual qualification of the respondent no.5 whereas for the post of Registrar, the UGC has laid down the specific qualification. In the said affidavit, reference has also been made of the interim order passed by the Apex Court on 18.3.2013 in SLP No. 8066 of 2013 staying the operation of notification dated 9.2.2013 and 19.2.2013 issued by the Governor cum Chancellor, Bihar appointing the Vice Chancellor and Pro-Vice Chancellor of different universities. In the counter affidavit, it has also been stated that the joining of the respondent no.5 had been accepted by the then Vice Chancellor of the University in the afternoon on 18.3.2013 as Registrar of the University after being his relieved on the same on 18.3.2013 from R.R.S. College, Mokama.

8. As against the aforesaid affidavit of the Vice Chancellor of the University filed in this case, the respondent no.5 has also filed his counter affidavit wherein apart from other things, 7 he has taken a plea that the writ application is not maintainable and if the petitioner so desires, he could have moved the Apex Court by filing an interlocutory application. Respondent no.5 has also taken a plea that whatever qualification has been laid down by the UGC have not been implemented in the University of Bihar and in fact, the appointment of the respondent no.5 cannot be termed as direct appointment on the post of Registrar and, therefore, the compliance of Section 15 of the Nalanda Open University Act, 1995 was not necessary, inasmuch as, the appointment of the respondent no.5 was made only on temporary basis in the administrative and academic interest of the University.

9. As with regard to keeping the post of Registrar in abeyance, it has been stated that even before appointment of the respondent no.5, one Dr. Shailendra Kumar Singh was appointed on the post of Registrar (Administration) and, therefore, the appointment of the respondent no.5 made on 18.3.2013 on the post of Registrar cannot be held to be bad either on fact or in law. Reliance also has been placed to the letters dated 5.7.2012 and

3.6.2013 with regard to creation of number of post including the post of Registrar for better functioning of the University in view of the increased work load. 8

10. Though notices were issued learned Chancellor for clarifying his stand, no counter affidavit has been filed on his behalf and Mr. Y.V. Giri learned Senior Counsel appearing on behalf of the learned Chancellor on receiving instruction from the Chancellor‟s office has taken a stand that the present Chancellor, on being made aware of the whole issue relating to appointment of Respondent no. 5 as the Registrar in the University, has taken a decision to review the decision of his predecessor with regard to the appointment of the respondent no.5 on the post of Registrar. In this regard, Mr. Giri has submitted that since the present learned Chancellor was not in office on

18.3.2013, he would require some time to examine the whole thing in the matter relating to appointment of the respondent no.5 on the post of Registrar. Reference in this connection has also been made to the power of the learned Chancellor under Section 10(5) of the Act which vest power of review to the learned Chancellor as with regard to any earlier decision taken by him.

11. Having regard to the aforesaid submissions, the first and the foremost question in the considered opinion of this court would be as to whether any appointment on the post of Registrar can be made by the learned Chancellor without complying the mandatory provision of an effective consultation with the State 9 Government as laid down in Section-15 of the Act which reads as follows:- “15. The Registrar.- (1) The Registrar shall be a wholetime Officer and shall be appointed in such manner and on such terms and conditions as may be prescribed by the Statutes and he- (a) shall act as Secretary to the Executive Council and the Academic Council; (b) shall manage the property and the investments of the University; (c) shall sign all contracts made on behalf of the University. (d) shall exercise and perform such other powers and duties as may be prescribed by the Statutes, the Ordinances, or the Regulations and the Rules as may from time to time, be framed, conferred and imposed on him by the Executive Council and the Academic Council; (e) shall generally render such assistance to the Vice- Chancellor as may be desired by him in the performance of his duties. (2) Notwithstanding anything contained in this Act or the Statutes the Chancellor may, if he thinks proper, appoint an Officer of the Central Government or the State Government or of any autonomous body established by an Ordinance of Parliament or the State Legislature, to be the Registrar on such terms and conditions as may be prescribed by the Chancellor in consultation with the concerned authority and the State Government.” (underlining for emphasis)

12. In view of the clear averment on the part of the petitioner that there was no consultation in the appointment of the 10 respondent no.5 on the post of Registrar between the learned Chancellor and the State Government and also the non-denial of it either by the respondent no.1, the learned Chancellor and the respondent no.3 the Vice Chancellor, there would be no difficulty in holding that there was no actually consultation with the State Government in the appointment of the respondent no.5 on the post of Registrar of the Universities.

13. The word “consultation” in respect of appointment on the post of Vice Chancellor and Pro-Vice Chancellor of the different Universities of Bihar had fallen for consideration before this Court and the Apex Court and in the recent decision in the case of Dr. Ram Tawakya Singh Vs. State of Bihar and others reported in 2013(3) PLJR 421 (SC) wherein it has been conclusively held that there has to be an effective consultation between the learned Chancellor and the State Government for appointment on the post of Vice Chancellor and Pro Vice Chancellor. In this regard it would be useful to quote the relevant portion of the aforesaid judgment which reads as follows:- "15. The word „consultation‟ used in Sections 10(2) and 12(1) of the BSU Act and Section 11(2) and 14(1) of the PU Act is of crucial importance. The word 'consult' implies a conference of two or more persons or impact of two or more minds in respect of a 11 topic/subject. Consultation is a process which requires meeting of minds between the parties involved in the process Consultation on the material facts and points to evolve a correct or at least satisfactory solutions. Consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consultor, but he will not be generally ignoring the advice of the consultee except for good reasons.

16. In order for two minds to be able to confer and produce a mutual impact, it is essential that each must have for its consideration fully and identical facts, which can at once constitute both the source and foundation of the final decision. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. If there is more than one person to be consulted, all the persons to be consulted should know the subject with reference to which they are consulted. Each one should know the views of the other on the subject. There should be meeting of minds between the parties involved the process of consultation on the material facts and points involved. The consultor cannot keep one consultee in dark about the views of the other consultee. Consultation is not complete or effective before the parties thereto make their respective points of view known to the other and discuss and examine the relative merit of their views.

17. In Chandramouleshwar Prasad v. Patna 12 High Court (1970) 2 SCR 666, this Court considered the question whether there was due compliance with Article 233(1) of the Constitution which provides that appointments of persons to be, and the posting and promotion of District Judges in any State shall be made by the Governor of the State “in consultation with the High Court” exercising jurisdiction in relation to State. While holding that a Government notification appointing the petitioner as an officiating District and Sessions Judge was in violation of Article 233, a Constitution Bench of this Court observed: “Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.”

18. In Union of India v. Sankalchand Himatlal Sheth and another (1977) 4 SCC 193, a Constitution of Bench of this Court interpreted the word „consultation‟ appearing in Article 222(1) of the Constitution. Y.V. Chandrachud, J. (as he then was) referred to Words and Phrases Permanent Edn. 1960, Vol.9), Corpus Juris Secundum (Vol.16A, 1956 Edn.), the judgments in Rollo v. Minister of Town and 13 Country Planning (1948) 1 All ER 13, Fletcher v. Minister of Town and Country Planning (1947) 2 All ER 946 and observed: “Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced one-sided governmental considerations are outside the contemplation of our Constitution.” In the same judgment, Krishna Iyer, J. expressed his views in the following words: “The key words in this Article are “consultation” “transfer”. What consultation, dictionary-wise popular parlance-wise? It implies taking counsel, seeking advice. An element of deliberation together is also read into the concept. “To consult” is to apply guidance, direction authentic information, to ask the advice of — as to consult a lawyer; to discuss something together; to deliberate. (Hewey v. Metropolitan Life Ins. Co.). The word “consult” means to seek the opinion or advice of another; to take counsel; to deliberate together; to confer; to apply for information or instruction. (CIR v. John A. 14 Wathen Distillery Co.). “Consult” means to seek opinion or advice of another; to take counsel; to deliberate together; to confers; to deliberate on; to discuss; to take counsel to bring about; devise; contrives to ask advice of; to seek the information of; to apply to for information or instruction; to refer to. Teplitsky v. City of New York. Stroud‟s Law Lexicon defines “consultation” thus: “Consultation. [New towns Act, 1946 (9 & 10 Geo. 6, c. 68), Section 1(1)]. “Consultation with any local authorities”. “Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice” per Bucknill, L.J., in Rollo v. Minister of town and Country Planning. See also Fletcher v. Minister of town and Country Planning.” We consult a physician or a lawyer, an engineer or an architect, and thereby we mean not casual but serious, deliberate seeking of informed advice, competent guidance and considered opinion. Necessarily, all the materials in the possession of one who consults must be unreservedly placed before the consultee. Further, a reasonable opportunity for getting 15 information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous judgment can be calamitous. Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed interests administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system. However, consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur. And in any case the consent of the Judge involved is not a factor specifically within the range of Article 222.”

19. The facts encapsulated in the earlier part of this judgment shows that the Chancellor has been consistently flouting the mandate of law and making appointments of Vice-Chancellors and Pro Vice- Chancellors without effectively consulting the State 16 Government completely disregarding requirement of academic excellence and experience."

14. In view of the law laid down by the Apex Court in the case of Dr. Ram Tawakya Singh (supra) and there being a similar provision under Section 15 of the Act, there would be no difficulty in holding that an appointment on the post of Registrar can be made by the learned Chancellor only in consultation with the State Government.

15. The submission of Mr. Sarvadeo Singh that such consultation with the State Government would not be required in the case of temporary arrangement by way of appointment of the Registrar of the University has to be only noted for its being rejected. The power of the Chancellor has been well circumscribed under Section 10 of the Act and from bare perusal of the same, it will be more than clear that there is no power vested in the Chancellor for making even an appointment on the post of Registrar on a temporary basis.

16. In fact, there being only one source of power under Section 15(2) of the Act for the appointment on the post of Registrar by the learned Chancellor and that too with prior consultation with the concerned authority and the State Government, the very concept of the learned Chancellor making 17 temporary arrangement on the post of Registrar by way of appointment of the respondent no.5 must be held to be bad. From a bare reading of Section 15(2), it will be infact more than clear that if the Chancellor has been vested with the power to appoint an officer of the Central Government or State Government or autonomous body established by an ordinance of Parliament or the State Legislature on the post of the Registrar, he can do so but only in consultation with the concerned authority and the State Government. Admittedly, the respondent no.5 is neither officer of the Central Government nor of the State Government nor of any autonomous body established by an ordinance of Parliament or the State Legislature. He is simply a Lecturer in a constituent college of Magadh University who does not fall in the category under Section 15(2) of the Act and definitely not an officer even if the expression officer used in Section 8 of the Act or Section 7 of the Bihar State Universities Act is taken into consideration. As a matter of fact when Magadh University the employer of the Respondent no. 5 was also not consulted in the appointment of Respondent no. 5 there would be no difficulty in holding that there was no consultation either with the "concerned authority" or "the State Government" as is mandatory in terms of Section 15(2) of the Act. 18

17. The concept of temporary appointment on the post of Registrar as advanced by the learned counsel for Respondent no. 5 for justifying the appointment of Respondent no. 5 by way of temporary arrangement under the order of the learned Chancellor without consultation to the State Government as well as Magadh University is in teeth of the provision made under Section 15(2) of the Nalanda Open University Act, 1995.

18. That apart, whenever an appointment on the post of Registrar has to be made, he being an officer of the University, in terms of Section 8 of the Act, the provisions Section 46 of the Act has to be also followed. It is here that one can find that any officer of the University, which in terms of Section 8(iv) of the Act even a Registrar is, can be usually made on the basis of the recommendation of the Selection Committee coming in place of Bihar State University Act (Constituent College Service) Commission. The qualification laid down by the UGC, therefore, for the post of Registrar as has been explained in the affidavit of the respondent no.3 assumes significance wherein it has been stated as follows:- “11. That as per the norm of UGC and the Government of Bihar for being appointed as Registrar of the University one should possess at least 15 years of the experience as Lecturer (Sr. scale)/Lecturer with eight years in reader‟s grade along with 19 experience in educational administration apart from other requisite qualifications. The relevant portion of the eligibility criteria for appointment of Registrar as has been fixed by the UGC has been given below:- The existing minimum qualification for direct recruitment to the post of registrar and equivalent posts shall continue, namely, a Master‟s Degree with at least 55% of the marks or its equivalent grade of „6‟ in the UGC 7 point scale. Consequent on change in designation of teachers vide this 2008, experience required for the post of Registrars and equivalent shall be I. at least 15 Years experience as Assistant Professor in the AGP of Rs. 7000 and above or with 8 years of service in the AGP of Rs. 8000 and above including as Associate Professor along with experience in educational administration. Or II. Comparable experience research establishment and/or other institution of higher education. Or III. 15 years of administrative experience, of which 8 years shall be as Deputy Registrar or an equivalent post. No information is available in the University about the actual qualification of Dr. Bipin Kumar.”

19. A question, therefore, would arise as to whether while appointing the respondent no.5, these norms were taken into account? As noted above, every thing happened on 18.3.2013, inasmuch as, on the same day, the learned Chancellor had passed 20 an order for appointment of the respondent no.5 on the post of Registrar. Incidentally that day happened to be the last date of the then Chancellor in office who by then was well aware of his going away as also his being replaced by the present Chancellor. There is nothing on record to show that even the qualification of the respondent no.5 was screened much less examined as to whether he had fulfilled the norms laid down by the UGC. The silence on the part of the office by choosing to not file any counter affidavit infact makes this Court believe that the then Chancellor had bestowed a favour on Respondent no. 5 on his last day in office. This Court would not like to say anything were in this regard specially when such action of the same the then Chancellor in the matter of making appointment on the post of Vice Chancellor and Pro Vice Chancellor has been deprecated by the Apex Court in no uncertain terms by the Apex court in the case of Dr. Ram Tawakya Singh (supra) wherein it was held as follows:- "22...............The extraordinary haste exhibited by the Chancellor in getting the notifications issued on

9.2.2013 speaks volume of his intention to prevent the State Government from bringing to the fore facts relating to criminal cases pending against some of his nominees. The singular objective of the Chancellor to appoint his men as Vice-Chancellors and Pro Vice-Chancellors is evinced from the fact that he did not stop the process of 21 appointment on 9.2.2013. By Notifications dated 19.2.2013, he ordered appointment of Dr. Tapan Kumar Shandilya as Vice-Chancellor of Nalanda Open University, Patna and six others as Pro Vice-Chancellors of different Universities. Not only this, after about one month the Chancellor passed order dated 14.3.2013 for appointment of Dr. Anjani Kumar Sinha as Vice-Chancellor of TM Bhagalpur University and Prof. (Dr.) Raja Ram Prasad and Dr. Padmasha Jha as Pro Vice-Chancellors of Patna University and BRA Bihar University, Muzaffarpur, respectively.

23. In our view, the entire exercise undertaken by the Chancellor was ex-facie against the mandate of Sections 10(1), 10(2) and 12(1) of the BSU Actand Sections 11(1), 11(2) and 14(1) of the PU Act because he made every possible effort to prevent the State Government from providing inputs about the candidates and conveying its opinion on their suitability to be appointed as Vice- Chancellors and Pro Vice-Chancellors. He also acted in contemptuous disregard to the pronouncements made by the High Court in the two rounds of litigation that the appointments of the Vice-Chancellors and Pro Vice- Chancellors must precede meaningful and effective consultation with the State Government. What is most shocking is that the Chancellor selected two persons for appointment as Vice-Chancellors and one person as Pro Vice-Chancellor despite the fact that they are facing prosecution under various provisions of IPC, the Scheduled Castes and the Scheduled Tribes (Prevention of 22 Atrocities) Act, 1989 and the Prevention of Corruption Act,

1988. Against some other candidates there were complaints of wrongful drawal of TA / DA and other financial irregularities. It can only be a matter of imagination as to how the Universities would be safe in the hands of such persons........"

20. By now, it is well settled that a person who does not possesses the qualification of the post, he cannot even temporarily hold such post. If such recourse could be taken for appointment on the post on temporary basis by brining someone who is otherwise not qualified for the post, the whole purpose of laying down the prescribed qualification and the manner of appointment would become a farce. This Court therefore will have no difficulty in holding that a Registrar can be appointed by the learned Chancellor in exercise of his power under Section 15(2) of the Act only from amongst the person who possesses the requisite qualification for the post of Registrar as laid down by the UGC and that too after holding prior consultation with the State Government as also the employer of the person proposed to be appointed.

21. That however having been not done in the case of the petitioner, this Court will have no difficulty in holding that there was a fraud on power exercised by the then learned Chancellor 23 who somehow on 18.3.2013 after being made aware of the interim order passed by the Apex Court in the case of Dr. Ram Tawakya Singh (supra) restraining functioning of the Vice Chancellors and Pro-Vice Chancellors appointed by him on 9.2.2013 and

19.2.2013 without consultation with State Government had passed the order for appointment of the respondent no.5 on the post of Registrar.

22. Infact it is amazing for this Court to note that even when such order of appointment of the respondent no.5 was issued on 18.3.2013 from Rajbhawan the respondent no.5 working in a Constituent College at Mokama at a distance of 100 kilometers became aware of it and had also been relieved on the same day by the Principal even without the order of the Vice Chancellor of Magadh University and went on to join the post of Registrar in the afternoon with the approval of the then Vice Chancellor, Mr. Shandilya of the University whose functioning had already been stayed by the Apex Court in the forenoon. There facts therefore by themselves will go to show that in a preplanned manner the respondent no.5 was appointed on the post of Registrar on a non- existing post, inasmuch as, the post of Registrar had been kept in abeyance for creation of the post of Joint Registrar (Examination) under the earlier order of the Chancellor dated 23.11.2006 even 24 without following the provisions of Section 15(2) of the Act.

23. Thus, from the discussions made above, it would be clear that the appointment of the respondent no.5 on the post of Registrar was wholly illegal and cannot be countenanced either on fact or in law.

24. It is true that the learned Chancellor has been vested with the power of review of his own decision but taking into account the fact and circumstances discussed above, this Court having regard to the order of appointment of Respondent no. 5 passed by the earlier learned Chancellor whose entire set of appointment of Vice Chancellor and Pro Vice Chancellor has been found to be bad and set aside by the Apex Court in the case of Dr. Ram Tawakya Singh (supra), this Court would find it difficult to accede to the prayer of Mr. Giri learned Counsel for the learned Chancellor that the matter relating to appointment of respondent no.5 should be remitted to the learned Chancellor for exercise of his power of review under Section 10(5) of the Act.

25. This Court would accordingly hold appointment of the respondent no.5 on the post of Registrar vide impugned order dated 18.3.2013 is bad both on fact and in law and is, accordingly, quashed and the Respondent no. 5 is directed to demit the office forthwith. 25

26. Before parting with this Court would also direct the present Vice Chancellor of the University to ensure that no decision taken by the Respondent no. 5 will be implemented unless the same has been approved by the learned Chancellor himself.

27. With the aforesaid observation and directions this writ application is allowed. There would be however, no order as to costs. (Mihir Kumar Jha, J) Patna High Court Dated the 9th October 2013 A.F.R./surendra/-