Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22093 of 2013 ====================================================== Dr. Shashi Kant Pathak, son of Late Tek Narayan Pathak, resident of village- Malipur, P.O- Malipur, P.S.- Garhpara, District- Begusarai, Presently posted as teacher in the Department of Zoology at Bahera College, Bahera, Darbhanga. Versus 1. The State of Bihar through its Principal Secretary to the Government of .... .... Petitioner/s Bihar in the Department of Education, Patna, Bihar. 2. The Chancellor, Raj Bhawan, Patna. 3. The Search Committee having its Secretariat, situate in the Chancellor Secretariat, Raj Bhawan, Patna. 4. The Kameshwar Singh Darbhanga Sanskrit University, Darbhanga through its Registrar having office at Darbhanga. 5. Dr. Kishore Kunal, Mahavir Mandir Station Road, P.S.- Patna Kotwali, Town and District- Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s
Legal Reasoning
: Mr. A.B. Ojha, Sr. Advocate. Mr. Sri Niwas Jha, Advocate. For the State : Mr. Lalit Kishore, PAAG Mr. Piyush Lall, AC to PAAG For the Chancellor : Mr. Y.V.Giri, Sr. Advocate. Mr. Rajendra Kumar Giri, Advocate. : For the University ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER Mr. Harendra Prasad Singh, Advocate. 2 31-10-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: (I) That by issuance of a writ of certiorari and quo warranto to quash the appointment of the respondent no. 5 as a member of the Search Committee for selection of Vice-Chancellor and Pro Vice-Chancellor of the Kameshwar Singh 2 Patna High Court CWJC No.22093 of 2013 (2) dt.31-10-2013 2 / 6 (II) (III) Darbhanga Sanskrit University, Darbhanga. That the respondents be further restrained to proceed with the selection as per advertisement dated 6.10.2013 whereby and whereunder applications have been invited for appointment as Vice-Chancellor/ Pro Vice-Chancellor of the Singh Darbhanga aforesaid Kameshwar Sanskrit University, Darbhanga. That the Search Committee be restrained from exercising its power and duties in respect of selection and empanelment of the persons to be appointed as Vice-Chancellor and Pro Vice- Chancellor of the Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 3. Let it be noted that this case was heard at length today alongwith C.W.J.C.No. 21840/2013 wherein similar relief has been prayed and has been adjourned for tomorrow in order to enable the learned counsel for the petitioner of that case to satisfy the issue of locus standi, raised by the Respondents.. 4. Mr. A.B.Ojha, learned senior counsel for the petitioner, submits that the petitioner had initially filed this writ application on 30.10.2013 as a Public Interest Litigation but subsequently when the matter was mentioned before the Division Bench for its being heard on priority basis the Division Bench had observed that it would not be a Public Interest Litigation. Mr. Ojha submits that accordingly correction was made in the subject matter by changing the subject from "Public Interest Litigation" to "other University Service" but then having regard to the observations being made in the analogous case, C.W.J.C.No. 21840/2013 that a writ petition at the instance of a person, who does not have either the qualification of being Member of the Search Committee or does not possess the qualification of Vice Chancellor will have no locus standi to maintain such writ petition, permission should be given to him to again convert this case into a Public Interest 3 Patna High Court CWJC No.22093 of 2013 (2) dt.31-10-2013 3 / 6 Litigation. 5. This court would refuse to do so. Learned counsel for the petitioner had mentioned this case both before the Division Bench hearing Public Interest Litigation and thereafter before this Bench for listing this case specifically today and after he has become aware of the adverse result in the connected writ application, he cannot be now allowed to again change the subject matter of his writ petition which in effect would amount to Bench hunting tactics. 6. In such circumstances, when Mr. Ojha has failed to satisfy this Court that the petitioner has a locus standi to assail the nomination of respondent no.5 as a Member of the Search Committee, this writ application has to also fail because paragraphs no. 4 to 9 of the writ application reading as follows: “4. That the petitioner is interested in high standard of education in Bihar and is championing the cause as a member of Bihar University Teachers. 5. That the petitioner has no individual interest in the matter. 6. That the petitioner graduated in Science having passed the B.Sc. examination from Mithila University, Darbhanga with Hons. In Zoology and was placed in 1st class. 7. That it may not be out of place to state that the petitioner further prosecuted his higher education in the field of Science and passed M. Sc. examination in the year 1983 from Mithila University, Darbhanga and completed his Ph. D. in Zoology in the year 1987. 8. That the petitioner was appointed as Lecturer in the Department of Zoology at Bahera College under Mithila University on 26.8.83 and is Head of the Zoology Department of the said college. 9. That one Rani Kumari was conferred Ph.D. degree in the year 2010 under the guidance of the petitioner.” will leave nothing for speculation that the petitioner does not 4 Patna High Court CWJC No.22093 of 2013 (2) dt.31-10-2013 4 / 6 possess the requisite qualification either for becoming a Member of the Search Committee or has the qualification for holding the post of Vice Chancellor. 7. Section 10(1) of the Bihar State Universities Act in this regard specifically lays down the qualification for being a Vice Chancellor, which reads as follows: the Chancellor, reputed “10(1) No person shall be deemed to be qualified to hold the office of Vice-Chancellor unless such person is, in the opinion of for his scholarship and academic interest, and no person shall be deemed to be qualified to hold the office of the Vice- Chancellor of the Kameshwar Singh Darbhanga Sanskrit University unless such person is, in the opinion of the Chancellor, reputed for his scholarship in Sanskrit to Sanskrit or has made notable contribution education.” 8. Followed by the observations and directions given by the Apex Court in the case of Dr. Ram Tawakya Singh v. State of Bihar & ors., reported in 2013(3) PLJR 421(S.C.), as with regard to bringing more transparency and objectivity in the appointment on the post of Vice Chancellor the aforesaid provision of Section 10(1) of the Act had been amended and was substituted in the following terms: “(1)(i) Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellor. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an in a reputed research and/or equivalent position academic administrative organization. (ii) The selection of Vice-Chancellor should be through proper identification of a Panel of 3-5 names by a Search Committee through a public notification or nomination or a talent search process or in combination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing 5 Patna High Court CWJC No.22093 of 2013 (2) dt.31-10-2013 5 / 6 the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance to be given in writing along with the panel to be submitted to the Chancellor. (iii) Following shall be the constitution of the Search Committee. (a) A member nominated by the Chancellor, who shall be an eminent Scholar/ Academician of national repute or a recipient of Padma Award in the field of education and shall be the Chairman. (b) The Director of Head of an institute or organization of national repute, such as, Indian Institute of Technology, Indian Institute of Science, Indian Space Research Organization, National Law University or National Research Laboratory or Vice-Chancellor of a statutory University nominated by the Chancellor as Member. (c) A member nominated by the State Government who shall be an eminent Academician and have full knowledge of the academic structure and problems of higher education of the State.” 9. Once this aspect becomes clear that the petitioner does not have the requisite qualification nor is an aspirant for becoming the Member of the Search Committee or for being appointed on the post of Vice Chancellor his writ application has to fail on the ground of locus standi alone. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of D. Nagaraj v. State of Karnataka & ors., reported in AIR 1977 SC 876, in which it has been held as follows: “7. The sole question that requires to be determined in these appeal is whether the appellants could maintain the aforesaid writ petitions. It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R.Shankaranarayana v. State of Mysore (AIR 1966 SC 1571) (supra) and the first preference in the matter of appointment of Village 6 Patna High Court CWJC No.22093 of 2013 (2) dt.31-10-2013 6 / 6 Accountants having been given by Rule 4 of the 1970 Rules to all persons belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the Infringement of Arts. 14 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who are similarly circumstanced but do not exclude the laying down of selective the Government from laying down general educational qualifications for the post in question. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions. The appeals accordingly fail and are dismissed but without any order as to costs.” tests nor prevent 10. Reference in this connection may also be made to the judgment of the Apex Court in the case of Dr. Umakant Saran v. State of Bihar & ors., reported in AIR 1973 SC 964, in the case of Kashi Nath Misra v. Chancellor, University of Allahabad & ors., reported in AIR 1967 Allahabad 101, and in the case of Mohd. Shafi Pandow v. State of J & K & ors., reported in (2001)10 SCC 447, wherein it has been held that if a person does not have the qualification for the post and in fact is not an applicant to the post, he cannot challenge the provisions of the appointment or the appointment. 11. That being so, this application must fail and is accordingly dismissed. Sujit/- (Mihir Kumar Jha, J)