IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8141 of 2010 In the matter of an application under Article 226 of the Constitution of India. ------ 1. DR. PRAMOD KUMAR SINGH S/O LATE RAJESHWARI PRASAD SINGH R/O MOHALLA- GAURAKSHNI, P.O. & P.S.- SASARAM, DISTT.- ROHTAS AND A UNIVERSITY TEACHER UNDER V.K.S. UNIVERSITY, ARA 2. DR. RAM TAWAKIYA SINGH S/O LATE JAGESHWAR SINGH R/O MOHALLA- J.P.NAGAR, P.O. & P.S.- NAWADA (ARA), DISTT.- BHOJPUR AND A UNIVERSITY TEACHER UNDER V.K.S. UNIVERSITY ARA AND UNIVERSITY PROFESSOR & HEAD OF P.G. DEPARTMENT OF CHEMISTRY Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY (HIGHER EDUCATION), HUMAN RESOURCE DEVELOPMENT DEPARTMENT, GOVT. 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, DISTT.- GAYA 5. DR. ARVIND KMAR SON OF NOT KNOWN, VICE CHANCELLOR, MAGADH UNIVERSITY, BODH GAYA. 6. DR. SUBHASH PRASAD SINHA SON OF NOT KNOWN VICE CHANCELLOR, VEER KUNWAR SINGH UNIVERSITY, ARA (BHOJPUR). 7. INSPECTOR GENERAL, VIGILANCE, STATE OF JHARKHAND, RANCHI. ----------- For the Petitioners :- Mr. Sunil Kumar Singh For the State :- Mr. Lalit Kishore, AAG I with M/S. Vikash Kumar, Girijesh Kumar & Shivam Singh For the Chancellor :- Mr. Y. V. Giri, Sr. Advocate with Mr. Rajendra Giri For respondent Nos. 3 & 6 :- Mr. Yugal Kishore, Sr. Advocate, with M/S. Sunil Kumar Mandal, Sanjay Kumar and Nutan Sahay. For Respondent nos. 4 & 5:- Mr. Y. V. Giri, Sr. Advocate, - 2 - M/S. Anil Kumar Sinha and Hanshraj ---- P R E S E N T THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. This writ application has been filed by the two petitioners who are Senior Teachers working under Universities of Bihar. Petitioner no. 1 also happens to be the President of the Bihar State University Teachers and Staff Welfare Association having registration No. 4-51/2000. They want quashing of appointment of two Vice Chancellors of Veer Kunwar Singh University, Arrah and Magadh University, Bodh Gaya in light of the facts and materials which emerge. The appointments have been made by the Chancellor of the Universities by exercising power under section 10(2) of the Bihar Universities Act, 1976 (hereinafter referred to as the said Act). They term the two appointments to be illegal and in clear violation of the said provision. When the writ application was filed, the petitioners did not have the requisite notifications in their hand. Therefore, it was not brought on record initially but has been now annexed with I.A. No. 4865 of 2010 as Annexures 7 and 8. A prayer has also been made in the said I.A. to now quash these two notifications dated 9.4.2010 and 15.4.2010 respectively. I.A. No. 4865 of 2010, therefore, is allowed. - 3 - 2. The primary question which has been raised and is required to be answered in the present writ application is whether the Chancellor of the Universities of Bihar has exercised the power of appointment of Vice Chancellors in accordance with the laid down statutory provision or the appointment of the two Vice Chancellors, namely, respondent nos. 5 and 6 are in breach thereof. 3. The relevant provision is required to be reproduced for ready reference as the submissions of the parties to the dispute hinges on the interpretation of the provisions laid down in the said section. Section 10(1) and (2) of the Act are reproduced here-in-below :- 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 Vice Chancellor of Kameshwar Singh Darbhanga Sanskrit Univeristy unless such person is, in the opinion of the Chancellor, reputed for his Scholarship in Sanskrit or has made knowledgeable contribution to Sanskrit Education. (2) The Vice Chancellor shall be appointed by the Chancellor in consultation with the State Government. (emphasis mine). 4. Opening submission on behalf of the petitioners is that the appointment made to the two Universities, namely, Veer Kunwar Singh University, Arrah and Magadh University, Bodh Gaya under the purported exercise of power under section 10(2) of the Act is in actual breach of the same because there is sufficiency of material to - 4 - show that there was no „consultation‟ with the State Government within the meaning of the Statute before the two notifications contained in annexures 7 and 8 came to be issued. Learned counsel for the petitioners submits that this stand or assertion is being made not from the news-paper reports which indicate that there was no consultation but also from the information which the petitioners had sought under the Right to Information Act from the Human Resources Development Department, Higher Education, Government of Bihar as well as the office of the Chancellor which clearly indicate that there was no consultation with the State Government on the question of appointment of two Vice Chancellors, which is mandatory under section 10(2) of the Act. 5. Contention of the learned counsel is that the said information does not stand in isolation but is supported by other circumstantial evidence which exist on record to show that the State Government was not consulted by the Chancellor before appointment of the two respondents on the post of Vice Chancellor because soon after the notifications were issued appointing them on the post, the Human Resources Development Department (hereinafter referred to as H.R.D.) issued a letter dated 19.04.2010 stating that it has come to the notice of the State Government that the Vice Chancellor of Magadh University, Bodh Gaya and Veer - 5 - Kunwar Singh University, Arrah have been appointed by the Chancellor under section 10(2) of the Act. The said appointment has to be made by the Chancellor in consultation with the State Government. However, the consultation as envisaged under the said section have not taken place between the Chancellor and the State Government and as such the appointment, prima facie, appeared not to satisfy the requirement under section 10(2) of the Act. The State Government, therefore, has actively considered the validity/procedural deficiency of the said appointment and the issue is under scrutiny. Therefore, pending such consideration and till such time the State Government takes a final view, it is hereby ordered that the two Vice Chancellors shall not exercise powers as are envisaged under the Act nor shall they take any decision having any future financial implications. This letter has been annexed as Annexure 1/A and has been issued on 19.04.2010 i.e. soon after the notifications appointing two respondents came to be issued from the Chancellor‟s Secretariat at Raj Bhawan in Patna. 6. Yet another contention of the learned counsel for the petitioners is that such a strong decision by the State could not have been taken, if proper procedure had been adopted by the office of the Chancellor, before appointing the two private respondents as Vice Chancellors of the two Universities. He states that there has been a - 6 - complete go-bye to the process of consultation and the appointment to the post of the Vice Chancellors have been made at the level of the Chancellor without any consultation what-so-ever with the State Government. If it is so, then any appointment in breach of section 10(2) of the Act goes to the root of the matter and such appointments will have to be quashed and removal of the two persons have to be ordered. Allegations have also been made with regard to the two appointed persons but they are not required to be noted or gone into because the Court would like to keep the issue focused on the statutory provision based on which the Chancellor has exercised power of appointment. 7. No doubt, under the statute, specially section 10(1) of the Act power to make appointment on the post of Vice Chancellor has been vested in the Chancellor but this power is not an absolute power because the „opinion‟ of the Chancellor with regard to suitability or otherwise of such person is subject to pre-condition that such appointments shall be made by the Chancellor on due consultation with the State Government. What emerges from the two provisions of Section 10(1) and (2) is that though appointment of Vice Chancellors have to be made by the Chancellor based on his opinion, but this opinion has to be an objective opinion and not a subjective opinion. Further the opinion has to be based on consultation which - 7 - the Chancellor shall have with the State Government because section 10(2) of the Act categorically states that the Vice Chancellor „shall‟ be appointed by the Chancellor „in consultation with‟ the State Government. 8. The word “opinion” or “consultation” have not been defined in the definition clause of the Act contained in Section 2 of the said Act but merely because these two words have not been defined, it does not mean that there are no parameters or judicial pronouncements from where the Court can derive assistance on this score. 9. There can never be a dispute on the question that appointment of Vice Chancellors is appointment on a public post. Any appointment on public post must satisfy the requirements of the constitutional provisions contained in Articles 14 and 16 of the Constitution besides the statutory provision which govern such appointments. If an appointing authority is given a discretion by the use of expression „opinion‟, this opinion is not in absolute terms but has to be read to mean objective opinion on the subject matter, based on materials which shall be made available in the relevant context. This is to ensure that no individual is picked up for conferment of benefit of appointment, to a public post, without due deliberations with regard to the suitability or otherwise of all such persons who - 8 - may be claimant/applicant or come within the ambit of consideration for such appointment and have expressed interest in such appointments. There is a clear and categorical assertion in the writ application that both these petitioners hold very senior positions in the University and were claimants for consideration for appointment on the post of Vice Chancellors which were/are vacant in the State. This included the post of Vice Chancellors of Veer Kunwar Singh University and Magadh University. 10. The Court does not want to go by the news-paper reports which do indicate that all had not been well on the issue of appointment of these two Vice Chancellors between the State government and the office of the Chancellor since there are various materials such as file notings, letters and communications which have now been brought on record even by the State Government in their counter affidavit to show that there was no consultation. After the appointment of the two private respondents as Vice Chancellors, the State government decided to curtail their powers and even wrote letters to Raj Bhawan for re-consideration of the decision. It would not have been so if there was consultation with the State. 11. Looking at the nature of the dispute which has been raised by the petitioners, the Court directed not only the private respondents to file their counter affidavit but even the State - 9 - government and the Chancellor to file their response to the vital questions of law which had been raised in the present writ application. 12. The stand of the private respondents on the issue is that they have been properly and validly appointed by the Chancellor because power to appoint vests in the Chancellor. He is the best judge on the issue of suitability of a person to hold the office of the Vice Chancellor. Both the respondents are highly accomplished people and the controversies which are sought to be created in the present writ application are mere figment of imagination of the petitioners because they have their own axe to grind. Though the learned counsels fairly did submit that whether there was consultation or no consultation between the State Government and the Chancellor cannot be effectively answered by them because they were not privy to the decision and have no personal knowledge with regard to the issue more so since all materials are within the domain of either the State Government or the office of the Chancellor. Yet another question which has been raised is with regard to the locus of the petitioners to challenge the appointment of the two respondents and the question whether a writ of Quo Warranto as such would be warranted in the present context because it cannot be said that the private respondents are usurpers of office as they are legally - 10 - appointed. 13. Learned counsel for the petitioners thereafter submits that the law on this question is well settled that any citizen has a right to raise such an issue of appointment if it is otherwise illegal. In this regard reliance is placed in the case of Sunil Kumar Tiwary Vs. The State of Bihar and others reported in 2009(1) PLJR, 516. Para 5 of the said decision states as under : “In my opinion, an application challenging the validity of an appointment to a public office shall be maintainable at the instance of any person, notwithstanding the fact that none of his fundamental or other legal right has been infringed, if the Court comes to the conclusion that in the interest of public the legal position with respect to usurpation of a public office deserves to be judicially declared nothing shall prevent this Court to issue a writ in the nature of quo warranto at the instance of any member of the public, unless it is shown that the petition lacks bona fide and the person questioning the appointment is a mere pawn in the game, having been set up by other. Petitioners in this proceeding are not seeking to enforce any of their right as such nor complaining non performance of any duty to them, but this will not decide the issue. In a writ of quo warranto the question is of the right of the person to hold the office. Tested in the light of the aforesaid legal position it is difficult to hold that the petitioner had acted malafide and he has been set up by other. Accordingly, I over rule this objection.” Thus, the Division Bench has held that any citizen can approach the High Court on such an issue so long as the parameters as above are satisfied. In addition to that, it is also submitted by the - 11 - learned counsel representing the petitioners that prayer in the writ petition is not limited to issuance of writ of Quo Warranto but it is also for any other appropriate Writ or direction to quash the appointments of the two private respondents in light of the fact that their appointment is in violation of the statutory provision, which is section 10(2) of the Act and even these petitioners had a right for consideration. 14. Counter affidavit on behalf of respondent no. 1 i.e. the State of Bihar was filed on 7.2.2011. The stand of the State is that a plain reading of the provisions relating to appointment of Vice Chancellor or Pro Vice Chancellor would show that consultation with the State by the Chancellor on matters of such appointment was a sine qua non and a condition precedent for any lawful appointment to the post, either of Vice Chancellor or Pro Vice Chancellor. They take a stand in the counter affidavit that there was no consultation with the State Government on the issue of appointment of two Vice Chancellors with the Minister of H.R.D. as the Minister himself has recorded in his own pen that there has been no consultation for filling up the post of Vice Chancellor or Pro Vice Chancellor in the discussion, if any held with the Chancellor. However, a stand was taken on behalf of the Chancellor that there was consultation with the Minister. In other words, there are two kinds of stand, both coming - 12 - from high functionaries, contradicting each other on the issue, which in the opinion of the Court is not a very happy position because two constitutional functionaries, at least, cannot be so diverse in their stand on the issue of consultation, if there was one. 15. Since in the earlier counter affidavit filed on behalf of the State adequate evidence in this regard was not produced, the Court directed not only production of the records by the State Counsel but even by the Office of the Chancellor. State Government decided not only to produce the original file relating to the issue of appointment of the Vice Chancellors but also decided to supplement it by filing a supplementary counter affidavit on 31.03.2011 re-asserting their position with supporting materials. What emerges from the supplementary counter affidavit is that there is sufficiency of material to show from various file notings as well as some of the letters written by the then Minister of H.R.D. and the Secretary of the Department to the office of the Chancellor to show that there was no occasion for having any consultation on the issue of appointment of Vice Chancellor muchless the appointment of the two private respondents. There is a clear averment in paragraph 9 of this affidavit that on 16.12.2009 (wrongly typed as 16.12.2010) the screening committee had met twice and evaluated the candidature of 28 persons for filling up the post of Vice Chancellor and Pro Vice - 13 - Chancellor and a panel was prepared. The Secretary of the department forwarded the said file to the Principal Secretary who in turn endorsed the said file to the Hon‟ble Minister of H.R.D. on 5.1.2010. Soon thereafter the Principal Secretary of the Department put up a note dated 13.01.2010 endorsing the file to the Minister of H.R.D. for approval of the panel so prepared, for filling up the post of Vice Chancellors and Pro Vice Chancellors in the four Universities whose names figure in the said note. The then Minister duly approved the panel on 15.01.2010 and the file was endorsed for approval of the Hon‟ble Chief Minister on 18.01.2010. While approval of the Chief Minister was still pending, the State Government learnt that the Chancellor has made appointments in the two Universities on the post of Vice Chancellors. This is even before any panel or material was forwarded by the State Government to the office of the Chancellor. When the issue came to the knowledge of the Hon‟ble Chief Minister, vide noting dated 14.04.2010 the Chief Minister desired to know as to with whom consultation had been made in respect to the said appointments. Accordingly, the Principal Secretary put up a note on 17.04.2010 before the then Minister of H. R.D. to apprise him as to whether any consultation at his level had been made with the Chancellor or not before such appointments, as the Chief Minister desired to know the actual state of affair. - 14 - 16. The then Minister, H.R.D. vide his note dated 19.04.2010 stated that before making appointment to the two Universities, there was no consultation between him and the Chancellor on the issue. These notes have been annexed as annexure-1 series in support by the State. 17. The State Government even sought an opinion from the Advocate General on the issue of the two appointments and the legal position in this regard. The Advocate General gave his opinion that though the ultimate power to appoint Vice Chancellors is vested with the Chancellor under section 10 of the Act but such appointment cannot be without proper and effective consultation with the State Government. He further opined that since there is sufficiency of material to show in the file that neither the Minister Incharge of the department nor the department itself had been consulted by the Chancellor before deciding to make appointments to the posts, he concluded that in no eventuality it was open to the Chancellor to make any appointment to the post of Vice Chancellor without consulting the State Government. 18. Annexure-1/B is the letter which has been written by the Principal Secretary, HRD to the Principal Secretary to Governor, Raj Bhawan, Patna on the issue of appointment of the two Vice Chancellors. This letter is dated 22.04.2010. It reiterates the - 15 - governmental position that they have heard that appointments to the two Universities i.e. Magadh University, Bodh Gaya as well as Veer Kunwar Singh University, Arrah have been made but they have not received any copy of the notifications in this regard. It reiterated the position that consultation with the State was a must and in absence of such a consultation the matter required re-consideration at the level of the Chancellor. 19. From the very noting which has been annexed as Annexure 1/C it is evident that the State government did not receive any response from the office of the Chancellor and a decision was taken to send a reminder. There is again a reiteration of the stand of the State in the file notings annexed to show that there was no consultation with the State Government in terms of section 10(2) of the Act. The Minister in his noting dated 9.6.2010 recorded in so many words as under :- “ DINANK 29.03.10 KO MANNIYA KULADHIPATI MAHODAYA SE MULAKAT KE DAURAN MUJH SE SIRF VISHWAVIDAYALAYA PRADHIKARAN GATHAN KE SAMBANDH MEIN VIMARSH HUA HAI. BIHAR KE VISHVAVIDAYALAYON KE RIKT KULPATI EVAM PRATIKULPATI KE PADON KO BHARNE KE SAMBANDH MEN MANNIYA KULADHIPATI MAHODAYA SE VISHWAVIDAYALAYA ADHINIYAM KE AALOK MEIN IN PADON KO BHARNE KE LIYE MUJHSE KOI VARTA NAHIN HUI HAI. SD/- HARINARAYAN SINGH” - 16 - 20. Yet another document of significance is the letter of the then H. R. D. Minister dated 09.06.2010 which is annexure-1/D. This is a D.O. letter addressed to the Chancellor reiterating his stand that there was no consultation with him on the issue of appointment of Vice Chancellors. 21. From the noting of the Minister dated 09.06.2010 it is evident that the Minister did have a meeting with the Hon‟ble Chancellor on 29.03.2010 but that meeting related to the issue of constitution of an University Tribunal and the pending Bill before His Excellency, the Governor for his assent but there was no „consultation‟ on the issue of appointment of Vice Chancellors muchless the two appointments which are subject matter of challenge in this writ application. 22. There are other communications also addressed to the Chancellor by the present H.R.D. Minister making request for appointment, so that consultations could be effected for making appointments on the post of Vice Chancellors to the various Universities of the State but till date there is no progress or development on this count. 23. From the various averments as well as the relevant extract of the notings of the file annexed with the supplementary counter affidavit filed on behalf of the State there is sufficiency of - 17 - material to show that the stand of the State is un-ambiguous that there was no consultation of any kind on the issue of appointment of Vice Chancellors including the two Vice Chancellors whose appointments are under challenge in the present writ application. The Court opines that if there was any consultation, there would not have been occasion for the Minister or the State to take such clear and categorical stand on the issue of consultation and to annex all those notings of the file to show that there was actually no consultation, so far as the State was concerned. 24. Now, let us take notice of the stand taken by the office of the Chancellor on whose behalf counter affidavit dated 23.03.2011 was initially filed. This counter affidavit has been sworn by one Kumar Braj Kishore Sahani, who is stated to be the Joint Secretary in the Governor‟s Secretariat and he has