CIVIL WRIT JURISDICTION CASE No.13754 OF 2008 (An application under Article 226 of the Constitution of India) PROF.(DR.) JYOTI SHEKHAR, SON OF LATE DR. KAMESHWR PRASAD AMBASTHA, RESIDENT OF A-2, GRAND‟S PALLAVI COURT, JUDGES‟ COURT ROAD, P.S.- PIRBAHORE, DISTRICT AND TOWN- PATNA ------------------ (PETITIONER) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 4. PATNA UNIVERSITY, PATNA THROUGH THE REGISTRAR, PATNA UNIVERSITY, PATNA 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA 6. THE VICE-CHANCELLOR, PATNA UNIVERSITY, PATNA 7. THE REGISTRAR, PATNA UNIVERSITY, PATNA ------------------ (RESPONDENTS) FOR THE PETITIONER :-MR. MADHURESH PRASAD,ADVOCATE FOR THE STATE :- (AAG-3) MR. LALIT KISHORE & MR. SATYABIR BHARTI, J.C. TO A.A.G.-3 FOR THE CHANCELLOR :- MR. RAM BALAK MAHTO, SR. DVOCATE & MR. SHIVENDRA KISHOR, ADVOCATE FOR THE PATNA UNIVERSITY :- MR. AJAY KUMAR SINHA, ADVOCATE & MR. IQBAL AHMAD, ADVOCATE WITH CWJC No.17506 OF 2008 - 2 - DR.DINESH PRASAD SINGH, SON OF LATE SINGESHWAR SINGH, AT AND P.O.- MASARHI, P.S.- GAURICHAK, DISTRICT- PATNA AT PRESENT WORKING AS HEAD OF DEPARTMENT OF HINDI, PATNA UNIVERSITY, PATNA ------------------(PETITIONER) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 4. PATNA UNIVERSITY, PATNA THROUGH THE REGISTRAR, PATNA UNIVERSITY, PATNA 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA 6. THE VICE-CHANCELLOR, PATNA UNIVERSITY, PATNA 7. THE REGISTRAR, PATNA UNIVERSITY, PATNA ------------------ (RESPONDENTS) FOR THE PETITIONER :-MR. MADHURESH PRASAD, ADVOCATE FOR THE STATE :- (AAG-3) MR. LALIT KISHORE & MR. SATYABIR BHARTI, J.C. TO A.A.G.-3 FOR THE CHANCELLOR :- MR. RAM BALAK MAHTO, SR. ADVOCATE & MR. SHIVENDRA KISHOR, ADVOCATE FOR THE PATNA UNIVERSITY :- MR. AJAY KUMAR SINHA, ADVOCATE & MR. IQBAL AHMAD, ADVOCATE WITH CWJC No.17903 OF 2008 KHAGENDRA KUMAR, AGED ABOUT 46 YEARS, S/O SHRI BHAGWAN SINGH, RESIDENT OF PROFESSOR QUARTER-2, PATNA TRAINING COLLEGE CAMPUS, DARIYAPUR, P.S.- KADAMKUAN, DIST.-PATNA ------------------ (PETITIONER) - 3 - Versus 1. THE SYNDICATE, THROUGH THE VICE-CHANCELLOR, PATNA UNIVERSITY, PATNA 2. THE VICE CHANCELLOR, PATNA UNIVERSITY, PATNA 3. THE REGISTRAR, PATNA UNIVERSITY, PATNA 4. THE CHANCELLOR, UNIVERSITIES OF BIHAR, PATNA ----------------- (RESPONDENTS) FOR THE PETITIONER :-MR. SHARAD KUMAR SINHA, ADVOCATE FOR THE STATE :- (AAG-3) MR. LALIT KISHORE & FOR THE CHANCELLOR :- MR. RAM BALAK MAHTO, SR. ADVOCATE & MR. SHIVENDRA KISHOR, ADVOCATE FOR THE PATNA UNIVERSITY :- MR. AJAY KUMAR SINHA, ADVOCATE & MR. IQBAL AHMAD, ADVOCATE P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad, A.C.J. & Ranjan, J. Petitioners in all these writ applications are Heads of Department in different subjects in the Post-graduate departments of the respondent Patna University and their prayer is to declare Sections 3, 4 and 6 of the Patna University (Amendment) Act, 2008 (Bihar Act, 15 of 2008) substituting Sub-clause (b) in Section 27 (6), inserting Clauses (c) and (d) after Section 27 (6) (b) and adding Sub- Section (7) after Section 36 (6) of the Patna University Act, - 4 - 1976 (Bihar Act, 24 of 1976) respectively as ultra vires. Facts lie in a narrow compass. All the petitioners are presently holding the office of the Heads of Department in different subjects in the Post- graduate Departments of the respondent Patna University. It is not in dispute that the post of Head of Department as such does not exist with specific scale of pay, but there are several privileges attached to it. Prior to coming into force of the provisions under challenge Head of Department, ordinarily used to be the senior most teacher in the subject. Section 27(6) of Bihar Act, 24 of 1976 before its amendment by Sections 3 and 4 of the Bihar Act 15 of 2008, read as follows:- “27.The faculties:- x x x x x 6 (a) Each Faculty shall comprise of such departments of teaching as may be prescribed by the Regulations. (b) Where it is proposed to appoint any teacher to be the Head of a Department who is not the senior most Professor, University Professor or Reader of the Department, as the case may be, such appointment shall not be made without the prior concurrence of the Bihar State University (Constituent Colleges) Service Commission. - 5 - x x x x x Section 3 of Bihar Act 15 of 2008, had substituted Section 27 (6) (b) of the Bihar Act 24 of 1976, which reads as follows:- “3. Substitution of Section -27 (6) (b) of the Bihar Act 24, 1976. – In the said Act the Sub-Section- 6 (b) shall be substituted, by the following:- “(b) Subject to the provisions of this Act and the provisions of the statute made thereunder the Head of the department shall be appointed by the Vice-Chancellor by observing, as far as possible, the principle of rotation. Such appointment‟s shall be reported to the syndicate of the University.” Section 4 of Bihar Act 15 of 2008 provided for addition of new clauses (c) and (d) after 27 (6) (b) of Bihar Act , 24 of 2008, same read as follows:- “4. Addition of a Section- 27 (6) (c ) and 27 (6) (d) of the Bihar Act 24, 1976. – The following shall be Added after Section – 27 (6) (b) of the Patna University act, 1976 (Bihar Act 24, 1976):- “(c) – The Head of the department shall hold office for a period of three years. A person shall not ordinarily be appointed as Head of the department for a second consecutive term.” “(d) – The principal shall hold office for a maximum period of five years in one college.” - 6 - By virtue of section 6 of Bihar Act 15 of 2008 a new Sub-section (7) was added after Section 36 (6) of Bihar Act 24 of 1976, hereinafter referred to as the Act same reads as follows:- (7) - Notwithstanding anything contained in the above clause, if at any time, the chancellor is satisfied that it is necessary to frame Statute of any subject of common interest after obtaining the advice of the committee of three Vice-Chancellors constituted by the Chancellor, shall send the Draft Statute to all the Vice-Chancellors for opinion, who shall send their opinion within ten days from the receipt of draft. The Chancellor shall give assent to the Statute with such amendment as he may deem necessary in the light of the opinion of the Vice- Chancellors. The Statute shall be deemed to come into force in the Universities from the date of assent; Provided that the State Government may also suggest the Chancellor to frame Statute of any subject of common interest of all the Universities. The Chancellor of the Universities in exercise of power under Section 36 (7) of the Act constituted a committee of three Vice-Chancellors, namely the Vice- Chancellor of Patna University, T. M. Bhagalpur University and M.M.H Aarbic and Persian University to advice it on the issue of appointment of Heads of Department on the principle of rotation. The Vice-Chancellor of the Patna - 7 - University was made its Convenor. The committee of three Vice-Chancellors so constituted held its deliberations on various dates and sent its report to the Chancellor. The report so received was forwarded to all the Vice-Chancellors for opinion and a meeting of all the Vice-Chancellors was held in which the draft statute submitted by the committee of three Vice-Chancellors was discussed and the Vice- Chancellors concurred with that. Ultimately Statute for the scheme of rotation of Headship was assented by Chancellor of the Universities and made applicable to all the Universities of Bihar, except Rajendra Agriculture University and Nalanda University. Statute provides as follows:- “1. Headship of the Department be rotated only amongst the first four seniormost teachers (Professors and Readers) as the case may be of the subjects concerned. For headship in P.G. Departments, first four seniormost teachers shall essentially be posted in the Department concerned. 2. Where there is no Professor, the Headship shall be rotated amongst the four seniormost Readers, or less if the number of Readers in the Department is less than four. 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 Department will be for three years. If for any - 8 - reason, the Vice-Chancellor feels that change in the Headship of the Department even prior to the completion of term of existing incumbent is necessary in the interest of the Department, change in the Headship of the Department be made subject to the approval of the Chancellor. 4. During the period of absence or leave of the duly appointed Head of the Department, the seniormost teacher in the department shall carry on the office of the Head of the Department provided that if the absence extends over a period of three months or more, the Vice-Chancellor may keeping in view the circumstances entrust the work to the next senior teacher in the subject. If however, the vacancy in the office of Head of the Department is to last or likely to last over a period of one year or more, the Vice- Chancellor may appoint another Head of the Department in accordance with these rules in the vacancy.” Mr. Madhuresh Prasad and Mr. Sharad Kumar Sinha appear on behalf of the petitioners. Submissions on behalf of the petitioners have mainly been advanced by Mr. Prasad. Mr. Lalit Kishore, Additional Advocate General-III, had appeared on behalf of the State. Mr. R.B. Mahto, Senior Advocate appears on behalf of the Chancellor of the Universities, whereas the Patna University is represented by Mr. Ajay Kumar Sinha and Mr. Iqbal Ahmad. While assailing Section 3 of Bihar Act 15 of 2008, Mr. Jha, contends that the Vice-Chancellor has been given - 9 - unguided power to appoint the Head of Department. As such according to him the appointment of Head of Department shall be at the whim and caprice of the Vice-Chancellor and conferring such an unguided power by the Legislature to the Vice-Chancellor makes the provision arbitrary and violative of Article 14 of the Constitution of India and thus fit to be struck down on that ground alone. It has been pointed out that use of the expression “as far as possible” in Section 27 (6) (b) of the Act by Section 3 of Bihar Act, 15 of 2008 clearly makes the provision vague and discretion unlimited. While challenging the vires of Section 4 of Bihar Act, 15 of 2008, it has been pointed out that prohibiting appointment as Head of Department ordinarily for a second consecutive terms also gives unguided power to the Vice- Chancellor. Before we examine the submission of the learned Counsel, we deem it expedient to consider the scope for judicial review for striking down an Act or a provision thereof to be ultra vires. In this connection Mr. Lalit Kishore submits that the Act made by the Legislature or the provision thereof can be declared ultra vires only when it affects one - 10 - or the other provisions of the Constitution. He submits that the petitioners have not been able to demonstrate that the impugned provisions in any way offends any of the Constitutional provision. It is well settled proposition of law hallowed by time and sanctified by precedent that an Act of the Legislature or the provision thereof can be declared ultra vires only when it affects one or the other provision of the Constitution. A provision in the Act or the Act made by the Legislature, in our opinion can be held to be ultra vires only when it violates one or the other provision of the Constitution. It is also well settled that when two views are possible, one making the Act of the Legislature or the provision thereof to be Constitutional and other Unconstitutional, the Court in exercise of its power of judicial review shall prefer the former. It is none of the concern of the Court, exercising the power of judicial review to term a Legislation to be unwise and declare the same to be ultra vires. After all an Act of the Legislature represents the will of the people and that can not be lightly interfered with. As the aforesaid proposition of law is so well settled - 11 - that no detailed discussion is required. However, in deference to Mr. Lalit Kishore, we may point out that in this connection he has drawn our attention to the judgment of the Supreme Court in the case of Government of Andhra Pradesh Versus P. Laxmi Devi (Smt.) (2008) 4 SCC 720 and our attention has been drawn to paragraph 46 of the judgment, which reads as follows:- “In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246 (1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto V. State of Kerala 13 SCC para 6 : AIR para 6. Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.” - 12 - Reliance has also been placed on a judgment of the Supreme Court in the case of State of Bihar and Others Versus Bihar Distillery Ltd. and Others, (1997) 2 SCC 453 to contend that an enactment cannot be struck down by saying that it is arbitrary. It has been pointed out that an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with and its Constitutionality has to be tested on the anvil of the Constitutional provision and not on the ipse dixit of the petitioner that it is arbitrary. In the said case it has been held as follows:- x x x x x x “The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application. Now, the result of the impugned judgment is that the Amending Act has become an exercise in futility – a purposeless piece of legislation. And this result has been arrived at by pointing out some drafting errors and some imperfection in the language employed. If only the High Court had looked - 13 - into the minutes of the meeting dated 15-12- 1989 and the two letters of the Commissioner aforementioned, it would have become clear that the Amending Act was doing no more than repeating contents of the said letters and placing the legislative imprimatur on them. As the impugned judgment itself suggests, part of the imperfection of language is perhaps attributable to translation from Hindi to English. Indeed, it is surprising that the Court has not even referred to the long preamble to the Act which clearly sets out the context and purpose of the said enactment. It was put in at such length only with a view to aid the interpretation of its provisions. It was not done without a purpose. To call the entire exercise a mere waste is, to say the least, most unwarranted besides being uncharitable. The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of “checks and balances” inherent in such scheme.” Bearing in mind, the principle aforesaid, now, we proceed to consider the submission of Mr. Jha. Section 3 of Bihar Act, 15 of 2008 confers power to the Vice-Chancellor to appoint Head of Department by following the principle of rotation and the aforesaid provision itself makes it clear that such an appointment shall be subject to the provisions of the Act and the statute made thereunder. In that view of the - 14 - matter, it is difficult to hold that the Vice-Chancellor has been conferred with unguided and un-canalized power. The expression “as far as possible” used in Section 3 of Bihar Act 15 of 2008 is well known in law. There may be exceptional circumstances in which the application of the principle of rotation becomes difficult or impossible and in that circumstance the Vice-Chancellor has been conferred with this discretion. This can be appreciated by citing an example of a department in the University which may consist of only one teacher and in that circumstance the appointment of Head of Department cannot be by rotation. Therefore, in our opinion, use of the expression „as far as possible‟ in Section 3 of Bihar Act, 15 of 2008 shall not render the provision ultra vires. So far as Section 4 of Bihar Act, 15 of 2008 is concerned, it inter alia provides that the Head of Department shall hold office for a period of three years and a person shall not „ordinarily‟ be appointed as the Head of Department for a second consecutive term. Use of the expression „ordinarily‟ in the aforesaid provision according to the petitioners gives unguided authority to the Vice- - 15 - Chancellor to continue or not to continue a teacher as the Head of Department for a second consecutive term. This submission of the petitioners is totally on an erroneous assumption that the Vice-Chancellor has been given unguided power. The Legislature while amending the Act seems to be conscious of the position that there may be a case in which rotational system may not be feasible and a person appointed as a Head of Department may have to be appointed again as such, for a second consecutive term. Possible abuse of a provision in the Act cannot be a ground to declare the provision itself ultra vires. In case the Vice- Chancellor of the University makes appointment not in conformity with the provisions of the act that act of appointment may be declared illegal, but the provision itself on the ground of its possible abuse cannot be declared as such. Similarly, while attacking Section (6) of Bihar Act, 15 of 2008 which had added Sub-section 7 after Section 36 (6) of the Act it has been pointed out that Chancellor has been given the power to frame statute of any subject of common interest and in the garb of this power, he may frame - 16 - statute on any subject and in the process existence of Senate and Syndicate in the University shall be meaningless. It is pointed out that the expression “any subject of common interest” used in Section 36 (7) of the Act having not been defined, Chancellor shall exercise the powers to frame statute on any subject. We do not find any substance in this submission. Section 36 (7) as inserted by Section 6 of Bihar Act, 15 of 2008 starts with non obstante clause and Chancellor has been conferred with the power to frame statute of „any subject of common interest‟. The expression „common interest‟ is well known in law. In a case in which the Chancellor chooses to frame statute on a subject not of „common interest‟ that statute may be declared illegal, but simply on the ground that the Chancellor in the garb of its power under Section 36 (7) of the Act may frame statute in respect of all matters itself shall not render the provision ultra vires. Not only this, there are procedural safeguard in Section 36 (7) of the Act. The Chancellor has been conferred with the power to make statute on any subject of common interest after obtaining the advice of the committee of three Vice-Chancellors. Not only this the draft statute is required - 17 - to be sent to all the Vice-Chancellors for opinion and the Chancellor is conferred with the power to give assent to the statute with such amendment as may be in necessary in the light of the opinion of the Vice-Chancellors. Therefore, the Chancellor‟s power to frame statute on any subject of common interest is not unguided. Further one cannot loose sight of the fact that the Governor of the State is the Chancellor of the Universities and it is not expected of the holder of such a high office to travel beyond law. In any view of the matter, the provision of law cannot be declared ultra vires on fear of being abused. It has been further contended that for appointment as Head of Department the statute requires determination of seniority and the seniority list having not been prepared, the statute is unworkable. It has been pointed out that Article 1 of the statute provides that the headship of the department shall be rotated only amongst the first four senior most teachers and the seniority being one of the consideration, in the absence of the gradation list, it cannot be given effect to. It has also been pointed out that while framing the statute only four senior most teachers have been made eligible also - 18 - smacks of arbitrariness. This submission in our opinion has no substance. Various contingencies have been provided under the statute for appointment of Head of Department. It provides for rotating the Headship of Department amongst the first four senior most teachers (Professors and Readers) and in case there is no Professor it shall rotate amongst four senior most Readers or less if the number of Readers in the department is less than four. It has also provided that in a case of non-availability of either a Professor or Reader in the department, the headship of the department may be rotated amongst teachers of the Department. Thus, the statute has taken note of various contingencies. At the first instance, it has to be rotated amongst four senior most teachers (Professor and Reader). The allegation that the seniority list of the teachers does not exist, though has been denied by the respondents, but even if we assume in favour of petitioners that there is no published gradation list that itself shall not make the Statute unworkable. For giving effect to the provisions of the Statute, nothing prevents the University to prepare the gradation list and make appointment as Head