IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.822 of 2011 IN (CIVIL WRIT JURISDICTION CASE 8141/2010) ========================================================== Subhas Prasad Sinha S/o Shri Ram Nandan Sinha the Vice Chancellor Veer Kunwar Singh University, Ara, resident of Sheo Puri, PS Shastri Nagar, Town and District- Patna .... .... Appellant Versus 1. Dr. Pramod Kumar Singh, son of Late Rajeshwari Prasad resident of Mohalla- Gourakshani, PO & PS Sasaram, District Rohtas and a University Teacher under V.K.S. University, Ara 2. Dr. Ram Tabkya Singh, son of Late Jageshwar Singh, resident of Mohalla- J.P. Nagar, PO & PS Nawada (Ara), District Bhojpur and a University Teacher under V.K.S. University Ara and University Professor and Head of PG Department of Chemistry 3. The State of Bihar through the Secretary (Higher Education) Human Resources Department, Government of Bihar, Patna 4. The Chancellor of Universities, Raj Bhawan, Patna 5. The Vice Chancellor, Magadh University, Bodh Gaya 6. Sri Arbind Kumar, Vice Chancellor of Magadh University, Bodh Gaya, District Gaya 7. The Vice Chancellor, Veer Kunwar Singh University, Ara 8. Inspector General Vigilance, State of Jharkhand, Ranchi ... .... Respondents ========================================================== With Letters Patent Appeal No. 824 of 2011 ========================================================== (Dr.) Arvind Kumar, V.C. Magadh University, Bodh Gaya, S/o Late B.D. Sinha, resident of Vice Chancellor’s Residence, Mohalla- Rampur, PO Rampur, PS Rampur, District Gaya .... .... Appellant Versus 1. The State Of Bihar through the Chief Secretary (Higher Education), Human Resources Development Department, Government of Bihar, Patna. 2. The Chancellor of Universities, Raj Bhawan, Patna 3. The Vice Chancellor, V.K.S. University, Ara 4. The Vice Chancellor, Magadh University, Bodh Gaya, District Gaya 5. Dr Subhash Prasad Sinha, S/o not known, Vice Chancellor, Veer Kunwar Singh University, Ara 6. Inspector General- Vigilance, State of Jharkhand, Ranchi 7. Dr. Pramod Kumar Singh, S/o Late Rajeshwari Prasad Singh, resident of Mohalla- Gaurakshni, PO & PS Sasaram, Distt- Rohtas and a University Teacher under V.K.S. University, Ara 8. Dr. Ram Tawakiya Singh, S/o Late Jageshwar Singh, resident of Mohalla- J.P. Nagar, PO & PS Nawadah (Ara), District Bhojpur and a University Teacher under V.K.S. Ara and University Professor and head of P.G. Department of Chemistry. .... .... Respondents 2 ========================================================== Appearance: For the Appellant (LPA No. 822 of 2011):Mr. Shravan Kumar, Sr. advocate Mr. Birendra Narayan Sharma, advocate For the Appellant (LPA no. 824 of 2011): Mr. Shashi Anugraha Narayan, Sr. Advocate, Mr. Mrigendra Kumar and Mr. Navin Prasad Singh, advocates Mr. Narayan Singh, Advocate For the State of Bihar (in both cases): Mr. Lalit Kishore AAG 1 Mr. Shivam Singh, AC to AAG 1, Mr. Vikash Kumar AC to AAG 1 Mr. Girjesh Kumar, AC to AAG 1 For the Chancellor (in both cases): Mr. Amarnath Singh, advocate Mr. Ajatshatru, advocate For the Magadh University: Mr. Abhay Singh, Sr. advocate Mr. Hansraj, advocate For Veer Kunwar Singh University: Mr. Yugal Kishore, Sr. advocate, Mr.Ajay Bihari Sinha, advocate Mr. Sunil Kumar Mandal, advocate For the State of Jharkhand (Vigilance Bureau): Mr. Dhruba Mukherjee, advocate For private respondents: Mr. Rajendra Prasad Singh, Sr. advocate Mr. Sunil Kumar Singh, advocate Mr. Amresh Kumar Singh, advocate ========================================================== CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH And HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Since both the Letters Patent Appeals arise out of the same judgement dated 4-5-2011 allowing CWJC no. 8141/2010, they have been heard together 3 and are being disposed of by this common judgment. 2. The main dispute is on account of appointment of appellant Subhash Prasad Sinha and appellant Arvind Kumar on the post of Vice Chancellor of Veer Kunwar Singh University, Ara and Magadh University, Bodh Gaya vide orders of appointment dated 9-4-2010 and 15-4-2010 respectively which have been issued by the Principal Secretary to the Governor- cum- Chancellor under the orders of the Chancellor, the appointing authority u/s 10 (2) of the Bihar State Universities Act, 1976 (hereinafter referred to as the “Act”). The real controversy between the parties is whether it is necessary or mandatory for the Chancellor to appoint Vice Chancellor in consultation with the State Government and whether there was such a consultation as provided u/s 10 (2) of the Act for appointing the appellants as Vice Chancellors. The writ court has held that the requirement of consultation is mandatory and there was no consultation for appointment of the appellants and, hence, their appointments are fit to be quashed as void ab initio. 4 3. Since the main controversy and vital issues relate to Sub-section (1) and (2) of Section 10 of the Act, it will be useful to extract the same for easy reference. “10. The Vice Chancellor.- (1) No person shall be deemed to be qualified to hold the office of Vice – Chancellor unless such person is, in the opinion of the Chancellor, reputed 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 or has made notable contribution to Sanskrit education. (2). The Vice- Chancellor shall be appointed by the Chancellor in consultation with the State Government.” 4. Before adverting to the detailed arguments advanced on behalf of appellants and the respondents, the relevant facts may be noticed in brief. 5. The writ petition was filed on 6-5-2010 by two respondents herein, Dr. Pramod Kumar Singh and Dr. Ram Tawakiya Singh, both University 5 Teachers under Veer Kunwar Singh University, Ara. They prayed for cancellation of appointments of both the appellants on the post of Vice Chancellor and also for cancelling similar other appointments, if any, in the Universities of Bihar on the allegation that they were illegal appointments. They prayed to make fresh appointments of genuine and reputed scholars in the various Universities of Bihar on the basis of recommendation of the State Government after considering the inter-se merit of all the applicants. They also prayed for directing the respondents to ensure that all appointments on the post of University officers, that is, Inspector of Colleges, Registrar etc. are also made in compliance of Article 16 of the Constitution of India after inviting applications from eligible candidates and then selecting the best. According to writ petitioners the merit for the post of Vice Chancellors and other University Officers should be reckoned on the basis of “published work” (books/ research papers). The main point raised on behalf of writ petitioners was whether the appointments made are illegal and against the 6 provisions of sub section (2) of Section 10 of the Act. 6. The writ petitioners claimed to be aspirants for the post of Vice Chancellors and that they had submitted application/ bio data for that purpose before the concerned authorities of the State of Bihar as well as the Chancellor of Universities. According to them the appellants were illegal appointees and did not deserve the post. Originally, the appellants were impleaded in their official capacity by their designation but later, after obtaining the orders of the Court they were impleaded by name in their personal capacity. Both the appellants claimed to be reputed scholars and men of academic interest. Appellant Subhash Prasad Sinha has claimed that he had also submitted his bio data to the Minister, Human Resources Development Department, Government of Bihar as well as to the Chancellor and that his name was included in the panel prepared by the Minister, Human Resources Development Department on 15-1-2010 and the panel was sent to the Chief Minister, Bihar on 19-1-2010 where it remained pending till 14-4-2010. This stand 7 is supported by relevant letters and notes in the connected files which have been brought on record as annexures. While, admittedly, the panel or the names which the State Government or the concerned Minister wanted to be considered during consultation for filling up the posts of Vice Chancellors in various Universities of Bihar remained pending for approval of the Chief Minister till 14-4-2010, a meeting between the Governor and the Minister took place on 29-3-2010. The agenda of that meeting is available on record and has been extracted by the writ court at pages 20 and 21 of the judgement under appeal. It shows that the relevant file related to a Bill for constitution of a Tribunal for settling certain disputes and conflicts among the employees and teachers of Universities and Colleges. The Bill had been resent to the Governor for considering the views of the government. On the margin of the pages of relevant file bearing file no. Act- 01/ 10 which had been called by the writ court for perusal, the Governor/ Chancellor has recorded his minutes in hand on 29-3-2010 at 7.30 PM. The typed 8 copy of this minutes signed by the Governor, Bihar is extracted as page 22 of the judgement under appeal. These have been noticed because the learned counsels for appellants, the Universities and for the Chancellor have relied heavily upon the minutes in support of their case that there was a consultation between the State Government and the Chancellor as required by Section 10 (2) of the Act. 7. After appointment of Vice Chancellor of Veer Kunwar Singh University, Ara on 9-4-2010, the Chief Minister, Bihar made a query on the file relating to panel of names under preparation for consultation, as to who had been consulted in relation to the said appointment. In reply, the Minister, Human Resources Development Department gave a note on 19-4-2010 that the department had long back requested the Chancellor to initiate the process but no consultation in the light of the Act had taken place at any level of his department and the Chancellor. The Minister in his notes categorically mentioned that for filling up the vacant posts of Vice Chancellors in the Universities of 9 Bihar no talks had taken place between him and the Chancellor. On the same date the Secretary of Human Resources Development department issued an order mentioning the fact that the Vice Chancellors of Magadh University, Bodh Gaya and Veer Kunwar Singh University, Ara had been appointed without consultation as envisaged under the Act and, therefore, the State Government was considering the validity/ procedural deficiency of the said appointments and the issue was under consideration. Pending such consideration and till final view could be taken by the State Government the two Vice Chancellors were not to exercise any financial powers and they were not to take any decision having any financial implications. On 26-4-2010 the Secretary issued another order reiterating the earlier order and it was clarified that financial decision shall be taken by the pro Vice Chancellors. Payment of salary of both the newly appointed Vice Chancellors was also ordered to be stopped. 8. The relevant notings on the file show that the Chancellor’s office stuck to its stand that 10 consultation had already taken place and there was no need for reconsideration. For sending appropriate reply, the Secretary of the department on 8-6-2010 placed the matter before the Minister who in his note dated 9-6-2010 wrote that on 29-3-2010 discussion between him and the Chancellor was confined to constitution of University Tribunal and no talks had taken place for filling up the vacancies for the vacant posts of Vice Chancellors and pro Vice Chancellors. 9. Thereafter the Chief Minister met the Chancellor on 10-6-2010 to ascertain the views of the latter in respect of the appointments in question and then on 12-6-2010 he recorded his minutes that the Chancellor informed him that he had talked with the Minister, Human Resources Development department in respect of appointment of the two Vice Chancellors although the Minister had informed the Chief Minister differently and had also written in the file that he had no talks with the Chancellor with respect to the related matter. The Chief Minister further recorded that considering the manner in which the Governor had 11 described his talks with the Minister, there could be no justification for keeping the matter alive and it would be a proper step to accept the decision taken by the Governor as Chancellor. This note has been subject of rival interpretations and contentions and, hence, it will be considered further while dealing with the detailed submission of the parties. 10. In view of stand of the Chief Minister, the letters issued by the Secretary, Human Resources Development department dated 19-4-2010 and 26-4-2010 were withdrawn by order of the Principal Secretary of that department on 13-6-2010. On the basis of minutes of the Chief Minister and the letter dated 13-6-2010 the appellants have seriously raised another issue. According to them the Chief Minister’s views amount to an acceptance that there was a consultation earlier on 29-3-2010 between the Chancellor and the Minister and in that view of the matter the writ court had no occasion to decide the issue any further because, according to appellants, the lis came to an end. In the alternative, it was contended 12 that the talks between the Chief Minister and Governor itself amounted to subsequent consultation and that would cure the defect of consultation, if any. This contention would also be considered later at appropriate stage. 11. The issues, as per their significance may be noted in the following sequence:- (1). Whether the consultation required u/s 10 (2) of the Act is directory or mandatory, (2) Whether there was consultation between the Chancellor and the State Government for appointing the appellants as Vice Chancellors and (3) whether the minutes of the Chief Minister dated 12-6-2010 would be conclusive for determining as to whether the consultation required by law took place or not or whether it shows fresh consultation so as to cure the defect of lack of consultation, if any. Some other ancillary issues were raised by the parties relating to the aforesaid issues and they will be discussed at appropriate stage. Issue No.1: Whether consultation u/s 10(2) of the Act is mandatory or directory- 13 12. The stand of the appellants is that although sub section (2) of Section 10 uses the word “shall”, it does not make the requirement of consultation with the State Government in the matter of appointment of Vice Chancellors mandatory for the following reasons:- (i) Under Section 10 (1), the Chancellor has been named as the sole authority for deciding who shall be deemed qualified to hold the post of Vice Chancellor, (ii) Under sub section (2) of Section 10 the Chancellor has been made the sole appointing authority, (iii) The Act itself is self contained code wherein the University with Chancellor as its head has been created as an autonomous body. The State Government has been assigned a limited role in financial or budgetary matters including the matter of creation of teaching or non teaching posts. Although consultation with the State Government is required in the 14 matter of appointment and removal of Vice Chancellors as well as in appointment of Pro Vice Chancellors, the Act grants primacy to the Chancellor and only his decision is important and binding. (iv) The Act does not lay down any consequence of non compliance with the requirement of consultation. Learned counsels for the two Universities have adopted the aforesaid stand of the appellants. 13. Learned counsels appearing for the writ petitioners and learned AAG 1 appearing for the State, however, have taken a contrary stand. According to them the provision for consultation is mandatory because;- (1) The word “shall” generally as well as by its ordinary grammatical meaning renders the required action mandatory, (2) There is no suitable or good reason why the ordinary grammatical meaning of the word 15 “shall” should be replaced by reading it as “may”, (3) The words used, nature, context and object of the provision in Section 10 (2) make the requirement of consultation mandatory, (4) The old Acts, that is, the Bihar State Universities (Bihar, Bhagalpur, Ranchi University) Act, 1960, the Magadh University Act of 1961 and other Acts also relating to different Universities which have been replaced by the Act of 1976 vested the power of appointment of Vice Chancellors in the Chancellor of the Universities without any requirement of consultation with the State Government. The Legislature, on account of experience, in its wisdom has now introduced the requirement of consultation under the Act as well as in the Patna University Act, 1976. Such deliberate introduction indicates that the consultation has been given clear importance and significance. It takes care of mischief or perceived mischief 16 in the earlier Acts and, hence, must be treated to be mandatory. 14. Various judgements cited by the parties on this issue show that there is no conflict of opinion so far as general principles are concerned. The relevant judgments cited for explaining the concept of Mandatory and Directory provisions or treating “shall” as Mandatory are:- 1.(2009)7SCC 1 N.Kannadasan V. Ajoy Khose, 2. AIR 1958 SC 419 K.S. Srinivasan V. Union of India, 3. AIR 1961 SC 1480 M/s Sainik Motors V. State of Rajasthan, 4.AIR 1966 SC 1987 Chandra Mohan V. State of U.P and 5.AIR 1994 SC 268 S.C. Advocates-on- Record Assn. V. Union of India. Some other judgements cited on behalf of appellants in support of the proposition that provision for consultation should not be treated as mandatory have been dealt with separately hereinafter. Learned AAG 1 placed special reliance upon the case of Shri Mandir Sita Ramji V. Governor of Delhi & Ors., AIR 1974 SC 1868 and upon the case of State of U.P. V. Singhara Singh, AIR 1964 SC 358 in support of the proposition that if the statutory 17 provision uses the word “shall” while prescribing a procedure for appointment or for doing of any other important work then such provision should be considered as mandatory. 15. From the general principles it follows that for forming a definite opinion as to whether a particular provision such as one for “consultation” is mandatory or not, the words of the Statute, the nature of concerned duty and responsibility, the context in which the provision appears and its object have to be kept in mind. If the consultation is prior or it is to secure a fair procedure and its disregard may affect fundamental rights, the requirement of consultation is mandatory. It is also mandatory where the advice or opinion binds the authority who is to propose for consultation to seek opinion or advice. However, if the opinion or advice is not binding, the proposer after seeking the opinion or advice by way of consultation may take a contrary decision and in that eventuality, the decision may not be illegal or void. It is also well recognized in law that if a Statute lays down the 18 manner of doing something, it must be done in that manner or not at all. 16. The mischief rule is well known as one of the principles of interpretation. If the Legislature changes the earlier law by providing safeguard like consultation with another authority, clearly a mischief or likely mischief in the estimate of the Legislature is sought to be remedied. Such provisions introduced by way of remedy cannot be easily disregarded as trivial or unimportant and, hence, they are generally treated as mandatory. In this context learned AAG 1 has relied upon the following three judgements of the Supreme Court:- 1. (1992) 4 SCC 80 Mohan Lal Tripathi V. District Magistrate, Rai Bareilly, 2. AIR 1974 SC 1708, R.B.M.B Mills V. Govind Ram Bros. and 3. (1988) 4 SCC 108 Jayawant S. Kulkarni V. Minochar D. Shroff. These judgements support the aforesaid proposition put forward on behalf of the State. 17. The Universities under the Act are autonomous bodies and the Act is a complete code in which the Chancellor enjoys unique primacy having 19 administrative as well as adjudicatory roles. The purpose of making the Universities autonomous and free from day to day control of the State Government is quite understandable. Day to day control and care of higher education has been kept insulated and free from political expediency and compulsions. The role of Vice Chancellor is that of Chief Executive Officer of the University. The Chancellor is superior but his powers are generally supervisory. He grants approval to the Regulations and Statutes framed by the bodies of the Universities, reviews decisions where grievances are brought to him by the teachers or other employees and issues necessary directions wherever deemed necessary. The Governor of the State is the ex-officio Chancellor of the Universities. The Governor of a State is head of the executive of the State and in all normal situations he is required to act on the aid and advice of the State Government. Any citizen of India who has completed 35 years of age is eligible for appointment as Governor. On the other hand the Vice Chancellor is a whole time officer who has to take care of 20 Academics, run the day to day affairs of the University as well as plan its development. Hence, he is required to be a person “reputed for his scholarship and academic interest”. The search for a suitable person to head a University as its whole time officer, in the context of the Act as well as Section 10 of the Act, is a task of utmost significance and importance. That appears to be the reason why need for consultation with the State Government was introduced in the Act. On applying well accepted canons of interpretation of law including the Mischief Rule, and on consideration of the words used, the nature of the Statute and context relating to consultation and its object, the requirement of consultation u/s 10 (2) of the Act has to be held as mandatory. 18. The word “shall” is only indicative. The need of consultation is between two constitutional authorities, one is the Chancellor whose role has been noticed above and the other is the State Government which has a high stake in ensuring that standard of higher education in the State is maintained and the 21 hundreds of crores of rupees allocated to the Universities every year are well utilized by appointment of suitable persons who are not only reputed for their scholarship and academic interest but can also be good administrators, capable of safeguarding the finances and interests of the Universities. The Governor as Chancellor does not have the elaborate requisite machinery to enable him to form the appropriate opinion for appointing persons as Vice Chancellors and this is adequately taken care of by providing consultation with the State Government. The nature of duty of both the Constitutional authorities in this context is to promote public interest and interest of higher education by selecting and appointing best persons available out of eligible candidates. To achieve this object the stipulated consultation has to be effective. It is not only desirable but clearly a must, before selection and appointment. 19. Though the judgement of the Supreme Court in the case of Indian Administrative Service (S.C.S.) Association vs. Union of India (1993 )1 Supp. 22 SCC 731 has been cited on behalf of the appellants, a careful perusal shows that the settled principles as to what shall constitute consultation and when it is mandatory do not support the case of the appellants. The judgement approves that prior consultation is mandatory and more so if its violation would affect fundamental rights or fair procedure. In the present case, the dispute whether opinion or advice of the State Government will bind the Chancellor or not is not at all in issue. The controversy is in respect of earlier stage- as to whether the State Government should have adequate opportunity to give its opinion or advice in respect of the appointees. The procedure and details as to who shall be taken into consideration on account of eligibility and who shall be selected out of eligible persons has rightly not been prescribed by the Act because the appointment and consultation process has been left in the