IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.482 of 2011 1. RAVI SHANKAR KUMAR, SON OF DAYANAND PRASAD, R/O QR. NO. 28, NEW READERS COLONY, GANNIPUR, KABRA ROAD, DISTRICT- MUZAFFARPUR, PRESENTLY POSTED AS P.T.I. R.D.S. COLLEGE, MUZAFFARPUR 2. CHANDRAMA SINGH, SON OF NAND KISHORE SINGH, R/O VILLAGE + P.O.- PAGAHIYA AIMA, VIA- HARDI, DISTRICT- MUZAFFARPUR, PRESENTLY POSTED AS P.T.I., M.S.K.B. COLLEGE, MUZAFFARPUR 3. SANJAY KUMAR SINGH, SON OF RAMTA PRASAD SINGH R/O VILLAGE- HATIYA, P.S. KARAKAT, P. O. -AMAURA, DISTRICT- ROHTAS, PRESENTLY POSTED AS P.T.I., J.S. COLLEGE, CHANDAULI 4. MITHILESH KUMAR MANI, SON OF SHEO NATH PRASAD, R/O VILLAGE + POST-BASAWAN TAKHAT, P.S. BASANTPUR, DISTRICT- SIWAN, PRESENTLY POSTED AS P.T.I,. L.N.COLLEGE, BHAGWANPUR……………………. APPELLANTS Versus 1. THE B.R.A.BIHAR UNIVERSITY , MUZAFFARPUR, THROUGH ITS REGISTRAR 2. THE VICE-CHANCELLOR, B.R.A. BIHAR UNIVERSITY, MUZAFFAPUR 3. THE REGISTRAR, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR 4. THE SELECTION COMMITTEE, B.R.A. BIHAR UNIVERSITY, MUZAFFAPUR……………………………………….RESPONDENTS 5. NUTAN KUMARI, WIFE OF SHARAD KUMAR, R/O AHIYAPUR ZERO MILE, P.S.-AHIYAPUR, DIST. MUZAFFARPUR………………RESPONDENT/ WRIT PETITIONER with LPA No.408 of 2011 SANJAY KUMAR SINGH, SON OF RAMTA PD. SINGH, R/O VILL- HATIYA, P.S. KARAKAT, P.O.- AMAURA, DISTRICT- ROHTAS…………………………………………………..APPELLANT Versus 1. THE CHANCELLOR BABSAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR 2. THE DEPUTY SECRETARY, GOVERNOR’S SECRETARIAT, BIHAR, RAJ BHAWAN, PATNA. 3. B.R.A. BIHAR UNIVERSITY, MUZAFFAPURPUR, THROUGH ITS REGISTRAR. 4. THE VICE-CHANCELLOR, B.R.A. BIHAR UNIVERSITY, MUZAFFAPUR 5. THE REGISTRAR, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR 2 6. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA…………………………… RESPONDENTS 7. NUTAN KUMARI, W/O SHARAD KUMAR, R/O AHIYAPUR ZERO MILE, P.S.- AHIYAPUR, DIST- MUZAFFAPUR..INTERVENOR ( RESPONDENTS IN ALL THE REMAINING L.P.AS. I.E. L.P.A. NO. 593,713 AND 751 OF 2011) WITH LPA No.593 of 2011 CHANDRAMA SINGH, SON OF NAND KISHORE SINGH, R/O VILLAGE + P.O. PAGAHIYA AIMA VIA- HARDI, DIST- MUZFFARPUR, PRESENTLY POSTED AS P.T.I. M.S.K.B. COLLEGE, MUZAFFARPUR…………………….. APPELLANT Versus THE CHANCELLOR,,B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR AND ORS……………………..RESPONDENTS. with LPA No.713 of 2011 RAVI SHANKAR KUMAR, SON OF DAYANAND PRASAD, R/O Q. NO.28, NEW READERS COLONY, GANNIPUR, KHABRA ROAD, DISTRICT- MUZAFFARPUR………………………….APPELLANT Versus THE CHANCELLOR,,B.R.A. BIHAR UNIVERSITY- MUZAFFAPUR AND OTHERS…………………………………………..RESPONDENTS with LPA No.751 of 2011 MITILESH KUMAR MANI, SON OF SHEO NATH PRASAD, RESIDENT OF VILLAGE-+ P.O. BASAWAN TAKHAT, P.S.- BASANTPUR, DISTRICT- SIWAN…………………APPELLANT Versus THE CHANCELLOR,,B.R.A. BIHAR UNIVERSITY, MUZAFFAPUR AND OTHERS…………………………………………RESPONDENTS ----------- FOR APPELLANTS IN ALL THE L.P.As. --------- 1. MR. RAJENDRA PD. SINGH, SR. ADVOCATE 2. MR. DEVENDRA KR. SINHA, SR. ADVOCATE 3. MR. UJJWAL KUMAR SINHA, ADVOCATE 4. MR. ALOK KUMAR RAHI, ADVOCATE 5. MR. BRAJESH KUMAR, ADVOCATE ---------- FOR RESPONDENTS IN ALL THE L.P.As. 3 1. MR. Y.V. GIRI, SR. ADVOCATE 2. MR. PRANAV KUMAR, ADVOCATE 3. MR. HARENDRA TIWARY, ADVOCATE --------- FOR CHANCELLOR 1. MR. RAJENDRA KUMAR GIRI, ADVOCATE ---------- FOR PRIVATE RESPONDENT ( NUTANKUMARI) 1. MR. BASANT KR. CHAUDHRY,SR.ADVOCATE --------- 6 16-5-2011 Heard learned counsel for the appellants, learned counsel for the University as well as learned counsel appearing for private respondent (writ petitioner of C.W.J.C. No. 14680 of 2009, Nutan Kumari Vrs. B.R.A. Bihar University and others). 2. Initially Nutan Kumari preferred a writ petition challenging the selection process in respect of selection of Physical Training Instructors (P.T.I.) for four constituent colleges under the B.R.A. Bihar University, Muzaffarpur (herefinafter referred to as the University). She had also approached the Chancellor for cancelling the selection process pursuant to which an enquiry was ordered by the Chancellor. Based upon the result of enquiry, the Chancellor issued an order which is evident from letter dated 5-1-2010 whereby the Vice- Chancellor of the University was informed 4 about the decision to cancel the appointment of four physical training instructors by the University through memo dated 14- 2-2009. In view of such development which led the University to cancel the appointment of four appellants, they also filed separate writ petitions which were heard together with the writ petition preferred by Nutan Kumari. By the order under appeal dated 10-2-2011 the writ petition filed by Nutan Kumar has been allowed and rest of the writ petitions have been dismissed. 3. The allegation made on behalf of appellants that the order of the Chancellor leading to termination of their appointment on the post of P.T.I. was without giving them any opportunity of hearing or participation in the enquiry ordered by the Chancellor stands admitted. Hence submission is to quash the order terminating the services of the appellants on the ground that after the order of the Chancellor on the basis of enquiry held behind the back of the appellants, the proceeding conducted by the University was an empty formality. Therefore, the matter should be left open for the University or the Chancellor for proceeding afresh in accordance with law after giving opportunity of hearing or 5 after giving notice to the appellants at the stage of enquiry as well as decision by the Chancellor. 4. However, on behalf of respondents it was argued that giving notice or opportunity of hearing itself shall be an empty formality because the writ court had gone into the merits of the matter and had held that grievances raised by Nutan Kumari are correct and the entire selection process was vitiated because the Selection Committee was not properly constituted of experts in the subject and marks assigned for educational qualification was not uniform in asmuch as less marks were allotted to those holding deploma in physical education in preference to those who had degree of B.P.Ed. and B.P.E. awarded by the University. The writ court has also criticized award of different marks to the same candidate in four different interviews held separately for filling up four posts of P.T.I. in four different constituent colleges. 5. We find merit in the submission that if the findings of the writ court for allowing the writ petition preferred by Nutan Kumari are found unassailable, there would be no purpose in remanding the matter to the authority concerned. We have heard the parties on the issues which 6 led the writ court to interfere with the selection process. 6. There is no dispute that there are no statutory provisions or rules governing recruitment of P.T.I. for the constituent colleges of the University. Advertisement prescribed the minimum eligibility criteria to be Bachelor Degree in physical education or Graduation with Diploma in Physical Education. On this ground it has been held that different marks could not have been assigned in course of selection process to holders of Bachelor Degree granted by the University and to those who were graduate but with diploma in physical education which used to be granted by the Bihar School Examination Board. We have considered this issue and it is found that no doubt the advertisement does not contain any indication as to how different degrees will be evaluated during selection process and both the degrees have been mentioned as basic eligibility criteria but there is no arbitrariness or infraction of law in deciding to give up to 40 marks to those who had bachelor degree in physical education while also allotting marks up to 40 raduates with diploma in physical education but under two heads, up to 20 marks on the basis of performance in graduation and up to 20 7 marks for performance in diploma in physical education. It may be noticed that the maximum marks for performance in bachelor degree in physical education was same i.e. 40 marks at the maximum. 7. The other ground for invalidating the selection process is on account of a finding that the Selection Committee which held the interview for 30 marks did not consist of real experts in physical education. Learned counsel for the appellants has submitted that the constitution of the Selection Committee which held the interview was by the University and well known before the interview, therefore any objection with regard to constitution of the selection committee or Interview Board cannot be permitted to be taken by a candidate who could not obtain sufficient marks to be selected. In support of this proposition reliance has been placed upon two judgments of the Supreme Court, one in the case of Madan Lal and others Vrs. State of J & K and others ( 1995 ) 3 SCC 486 and the other in the case of Trivedi Himanshu Ghanshyambhai Vrs. Ahmedabad Municipal Corporation, AIR 2007 SCW 6338. In those cases the Apex Court has held that it is well settled that if a candidate takes a 8 calculated chance and appears at the interview, then, he cannot turn round and challenge the process of interview as unfair or that the Selection Committee was not properly constituted. Hence, on the aforesaid issue the writ court ought to have held that the petitioner of one of the writ cases, Nutan Kumari did not have locus to challenge the constitution of the Selection Committee and the process of interview. 8. In the matter falling within the jurisdiction of an autonomous authority like University the writ court should be cautious and ordinarily should not interfere unless there be a good case of mala fide or a gross case showing large scale illegality vitiating the entire selection process. Here the same Selection Committee had interviewed all the candidates on four occasions because the applications for each of the four constituent colleges had to be dealt with separately and marks may vary depending upon performance on each of the four occasions. Some variation in the marks obtained by various candidates in four different interviews alone cannot indicate with certainty that the selection process was grossly vitiated so as to require interference. The authorities of the University have sufficient autonomy to fix the yard stick and 9 criteria for award of marks under different heads for the purpose of selection. It will not be proper for this Court to go into such issue when all the candidates were subjected to same yard sticks. 9. Hence, in our considered view, there is no merit in the writ petition of Nutan Kumari requiring interference by this Court in exercise of writ jurisdiction. The judgment and order under appeal is therefore, set aside and the writ petition is dismissed. 10. So far as writ petitions of the appellants are concerned, we would not like to go into the merits of the findings in the enquiry held at the instance of the Chancellor but since it has already been noticed earlier that there was no notice to the appellants at the stage of enquiry ordered by the Chancellor or during the decision taken by the Chancellor, we have no option but to hold that the termination of their services by the University is only on account of order of the Chancellor which was passed without hearing the appellants and was based upon an enquiry held behind their back. The termination orders are bad in law for violation of principles of natural justice. 10 11. For these reasons the impugned orders terminating the services of 4 P.T.I’s including the direction issued by the Chancellor and the enquiry report are quashed. However, it is made clear that if the authorities of the University including the Chancellor are so inclined, they would be free to proceed with the enquiry afresh after notice to the appellants and reach at any appropriate conclusion in accordance with law. 12. Some specific grievances were raised with respect to qualification of one of the appellants Chandrama Singh during the hearing of this appeal. It goes without saying that the authorities would be at liberty to take notice of the allegations raised against one of the appellants, Chandrama Singh and proceed as per law. 13. The appeals are allowed to the aforesaid extent. No costs. ( Shiva Kirti Singh,J) ( Dr. Ravi Ranjan,J) Naresh 11