Dr.Vani Bhushan v. The Patna University & Ors

Patna High Court CWJC No.6540 of 2011 (10) dt.18-03-2013 2 prior to the completion of term of existing incumbent is necessary in the interest of the department, change in the headship in the department be made subject to approval of the Chancellor”. The Statute provides that headship would be rotated only amongst the first four senior most teachers (Professors and Readers). Further more, if no Professor is available, the headship would be rotated among four senior most Readers. Clause 3 of the statute which would be relevant in the context states that if there is neither a Professor nor a Reader in the Department, the Headship of the Department may be rotated amongst teachers of the Department. Clause 3 of the Statute reads as under: “3. If there is neither a Professor nor a Reader in the Department, the Headship of the Department may be rotated amongst teachers of the Department. The tenure of Headship of the Deptt. Will be for three years. If for any reason, the Vice-Chancellor feels that change in the Headship of the Deptt. even prior to the completion of term of existing incumbent is necessary in the interest of the Deptt. Change in the Headship of the Deptt. Be made subject Chancellor”. the approval of In terms of Annexure-3, the petitioner was posted as Head of the P.G. Department of Law of the University vide notification dated 29.12.2009. It is relevant to state that prior to notification dated 29.12.2009, respondent no.4 was Patna High Court CWJC No.6540 of 2011 (10) dt.18-03-2013 3 discharging the function of the Head of the Department since

31.3.2004. In view of the statute for rotation of Headship read with insertion of section 27(6)(c) of the Patna University Act, 1976, the petitioner was posted to discharge the function of the Head of the Department. It is apt to state that there was no teacher in the rank of Reader/Professor in P.G. Department of Law and as such the respondent no.4 who was Assistant Professor was appointed to discharge the function of the Head of the Department. In view of the statute for promotion of Headship and section 27(6)(c) of Patna University Act, the respondent no.4 could not have continued for more than three years as the Headship had become a tenure post. As such in absence of there being any Reader or Professor in the P.G. Department, it was the petitioner‟s tenure to be made Head of the Department. The petitioner is aggrieved by notification dated 1.4.2011 issued by the Patna University whereby he has been removed from the post of P.G. Department of Law of the University and respondent no.4 again has been made the Head of the P.G. Department of Law of the University. The stand of the University is that respondent no.4 got promotion to the post of Reader as per clause 2 and 3 of the Patna High Court CWJC No.6540 of 2011 (10) dt.18-03-2013 4 Statute for scheme of rotation of Headship dated 27.6.2008, contained in Annexure-3, as there was no Reader or Professor available in the department. Learned Counsel submits that a lecturer can continue only as Head of the Department, if no Reader or Professor is available in the department. Now that as a Reader is available consequent to promotion of Respondent no.4, the petitioner has to give way to the former (Respondent no.4). Respondent no.4 has taken the same stand as the University. The petitioner has assailed the impugned order and states that he could not have been removed in between his tenure except for reasons to be assigned by the Vice Chancellor subject to approval of the Chancellor as provided in Clause 3 of the Statute for scheme of rotation. The petitioner further submits that the impugned order removing him could not have been done without providing an opportunity of hearing. Mr. Amarnath Singh, learned Senior Counsel appearing on behalf of the Chancellor submits that there is no specific approval of the Chancellor prior to passing of the impugned order by the Vice Chancellor. I have heard counsel for the parties. As respondent no.4 had completed more than five years of Patna High Court CWJC No.6540 of 2011 (10) dt.18-03-2013 5 tenure, thus in view of section 27(6)(C) of the Patna University Act read with Statute of scheme for rotation dated 27.6.2008 issued by the Governor‟s Secretariat, the respondent no.4 could not have continued as Head of the Department beyond the period of three years. As both respondent no.4 and the petitioner were lecturer and there being no Reader or Professor in the P.G. Department of Law, the petitioner was made Head of the Department in terms of Clause 3 which states that if there is neither a Professor nor a Reader in the department, the Headship of the department, may be rotated amongst the teachers of the department. Clause 3 provides that a Head of the Department can be removed within the term of his/her tenureship if for any reason the Vice Chancellor feels that change in the Headship even prior to completion of term is necessary in the interest of department which too would be subject to the approval of the Chancellor. The term if „for any reason the Vice Chancellor feels‟ that change in the Headship of the Department is necessary prior to completion of the term would not confer leverage to the Vice Chancellor to act freely bordering on indiscretion. The term „for any reason‟ or the Vice Chancellor if so „feels‟ would ought to be based on objective reasons on the touch stone of Articles 14 and 16 of the Constitution of India. Patna High Court CWJC No.6540 of 2011 (10) dt.18-03-2013 6 The order removing a person before completion of tenure post must reflect that there was some reason for such removal and it was in the interest of the department. If the aforesaid two conditions are not fulfilled, apart from approval of Chancellor, the order can be interfered with. In the instant case the respondents have failed to show that it was necessary in the interest of the department to change the Headship much less there was any approval of the Chancellor. The removal of the petitioner from the post of the Head of the Department before completion of term has to be done for very cogent reason and as such the impugned order 1.4.2011 is not sustainable in the eyes of law and is accordingly set aside. In the result, this writ application is allowed. KHAN/- AFR (Samarendra Pratap Singh, J)