CIVIL WRIT JURISDICTION CASE No.17966 of 2008 (In the matter of an application under Article 226 of the Constitution of India) 1. ASHUTOSH KUMAR, son of Tej Bahadur Roy, resident of Chainpur Kothi, Nawal Kishore Road, Kadam Kuan, PO & PS Kadam Kuan, District –Patna 2. Manish Kumar, son of Sri Abhay Kumar, resident of Village Sachai, PO & PS Kurth,District-Arwal 3. Anamika, daughter of Sri Dinanath Prasad,d resident of New Bangali Tola, East Mithapur, PO & PS New Jakkanpur, District – Patna 4. Ankita Kumari, daughter of Sri Laxmi Narayan Paswan, resident of Bahadurpur Gumti, Rajendra Nagar, PO & PS Kadam Kuan, District – Patna 5. Monika, daughter of Sri Surendra Prasad Singh, resident of SK/4 Road No.11C, Chitrakut Nagar, LIC Colony, PO & PS Digha, District – Patna 6. Ravi Shankar, son of Sri Raj Kumar Sharma, resident of Sanjay Nagar, Road No.10, PS Jakkanpur, District – Patna 7. Priyanka Kumari, daughter of Sri Rabindra Kumar, resident of Mahallah Munnachowk, PS Patrakar Nagar, District – Patna 8. Manjari Kumari, daughter of Shri Sunil Kumar Jha, resident of Maa Jageshwari Tower, B-201, Bahadur Gumti, PS Agam Kuan, District – Patna 9. Dinanath Singh Priyadarshi, son of Sri Surendra Prasad Singh, resident of village Chandni, PS Kadigola, District – Rohtas 10. Abhishek Kant son of Rama Nand Prasad, resident of Kazipur, PS Kadamkuan, District –Patna 11. Pawan Kumar, son of Ram Lochan Singh, resident of Khatri Comercial Complex, Mahendru, PS Pirbahore, District –Patna 12. Chandan Kumar Sah, son of Late Sri Motilal Sah Yadav, resident of VIP Colony, Rai Hasanpur Chaintola, PS Digha, District –Patna 13. Md. Kamran Arif, son of Md. Arif Hussain, resident of Mushalapur, PS Pirbahore, District – Patna 14. Chandan Kumar, son of Sri Pramod Prasad Singh, resident of SK/4 Road no.11C, Chitrakut Nagar, LIC Colony, PO & PS Digha, District – Patna 15. Niharika Ranjan, daughter of Lallan Prasad, resident of Khazanchi Road, PS Pirbahore, District – Patna 16. Avinash Kaushik, son of Sri Randhir Sharma, resident of Khagaul Bazar, PS Digha, District – Patna 17. Kausar Khan, son of Noor Alam Khan, resident of Garhiver Bhagwan, Bazar Chapra, PS, District – Chapra 18. Sonam Kumari, daughter of Sri Anil Kumar Bhagar, resident of Ashok Rajpath, PS Pirbahore, District – Patna 19. Ahmar Hussain, son of Shamim Hussain, resident of Qutubuddin Lane, Dariyapur, PS Pirbahore, District –Patna 20. Versha Rani, daughter of Sri Arun Kumar Bhagat, resident of Ashok Rajpath, PS Pirbahore, District – Patna…………. Petitioners Versus 1. THE STATE OF BIHAR through the Secretary, Human Resources and Development Department, Government of Bihar, Patna 2. The Chancellor of Universities, Bihar, Patna - 2 - 3. The Vice Chancellor, Patna University, Patna 4. The Director-cum-Principal, Patna College, Patna 5. The BBA Course Coordinator-cum-Head of the Department of Economics, Patna College, Patna 6. Rajiv Kumar Pathak, son of Sri Sanjay Kumar Pathak, resident of Block 17, Flat no.5, Adalatganj, PS Kotwali, District -Patna 7. Renu Kumari, daughter of Sri Yogendra Singh,C/o Mukteshwar Upadhya, Pakari Ara, Mission Road North of Gas Agency, PS Ara, District – Bhojpur 8. Sudhir Kumar, son of Sri Satya Narayan Singh, C/o K P Singh, Jai Mahavir Colony, Road no.3, Sandalpur, Patna 6,PS Bahadurpur, District – Patna 9. Najmus Saquib, son of Sultan Loj, resident of Lohianagar, Alamganj, PS alamganj, Patna -7, District –Patna 10. Rajesh Kumar, son of Sri Sukhdev Roy, resident of village Khajpura, PO Bihar Veterinary College, PS Sirpent,District – Patna 11. Sujeet Kumar, son of Virendra Yadav, PO Umagaon, PS Harlakhi, District –Patna 12. Ravi Ranjan, son of Jagat Singh, resident of Kurkuri Phulwari Sharif, PS Phulwarisharif, Patna – 801505, District –Patna 13. Juhi Rani, daughter of Sri Ram Naresh Pandey, resident of Shivpur, Mahendru, PS Sultanganj, District – Patna 14. Dilip Kumar, son of Siyaji Ray, resident of Kadamkuan, Park Road, Patna -3 15. Sudarshan Kumar, son of Arun Singh, C/o Shyam Narayan Singh, P.O. +Vill. Alamalpur, PS Gaurichak,District – Patna 16. Noopur Kumari, daughter of Shiv Shankar Poddar, resident of A-1 Kasturba Nagar, South of Bazar Samiti, Patna – 800006 17. Dhiraj Kumar Dubey, son of Sri Rabindra Nath Dubey, resident of Adalatganj, PS Kotwali, District –Patna 18. Danish Khan, son of Hussain Khan, resident of Anwar Manzil, Moharrampur, PS Pirbahore, Bakerganj, Patna -4 19. Aman Kumar Dubey, son of S N Dubey, resident of Shahugunj Lane, Mahendru, Patna, PS Sulganganj, District – Patna 20. Anand Kumar, son of Sri Binod Prasad, resident of Quila Road, Chamdoria, Patna City – 800008, PS Chowk, District –Patna 21. Md. Shawoor Alam, son of Sri Md. Mohiuddin, C/o M A Wassaif Lodge, Azzimabad Colony, Mahendru, PS Sultanganj, District – Patna 22. Rajesh Kumar, son of Sri Rama Prasad Singh, PO+Vill+PS Khair, District Chapra 23. Amit Raj, son of Rabindra Prasad, C/o Late Ayodhya Mahto, At Bishwa Sadar, Indira Nagar, Road no.1, PS Jakkanpur, District – Patna 24. Dharmendra Kumar, son of Sri Pramod Yadav, At PO Bari Pahari, PS Agam Kuan, District – Patna 25. Rishikesh Ranjan, son of Shambhu Sharan Singh, resident of East Chitragupta Nagar, Kankarbagh, Patna -20, Patrakar Nagar, District – Patna 26. Amit Kumar, son of Anil Kumar, At + PO Thari Bhawanipur, PS Pipra, Via Pipra, District- Supaul…….. ……….. Respondents ****** - 3 - For the Petitioners : Mr. Y V Giri, Sr. Advocate Mr. Tej Bahadur Roy & Mr. Raj Kishore Prasad, Advocates For Respondent no.1 : Mr. Manoj Kumar, JC to GA 10 For Respondent no.2 : Mr. Shivendra Kishore, Advocate For respondent nos. 3 to 5 : Mr. Rajendra Kumar Giri,Advocate Mr. Kinkar Kumar,Advocate For the intervenor : Mr. Sunil Kumar Thakur 2 Respondents Mr. Vinay Mistry, Advocates ******* P R E S E N T THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR ----------- SK Katriar, J. Twenty students have joined this writ petition with the prayer to set aside the decision of the Patna University, whereby the admission of 146 students including the petitioners and respondent nos. 6 to 26, to the Bachelor of Business Administration (Honours Course) (hereinafter referred to as `BBA’), has been cancelled, inter alia, on the ground that the same were beyond the sanctioned strength of seats for the course, and their admissions were actuated by ulterior motives and extraneous considerations. BBA is a three years course and the present writ petition is with respect to the session 2008-2011, commencing with the academic year 2008-09. Respondent nos. 6 to 19, as well as respondent nos. 20 to 26, are similarly circumstanced persons and were on their own motion impleaded as party respondents. The petitioners and respondent nos. 6 to 26 make common cause in challenging the action of the University. In substance, the prayer of the petitioners and respondent nos. 6 to 26 is - 4 - to set aside the order dated 20.11.2008 (Annexure M), issued under the signature of the Registrar of the Patna University, whereby admission of the said 146 students have been declared null and void. 2. The affairs of the Patna University are governed by the Patna University Act 1976 (hereinafter referred to as `the Act’). In exercise of the powers conferred by Sections 37 and 38 of the Act, and as per the procedure prescribed therein, the University created the course of BBA and issued the requisite order, a photocopy of which is marked Annexure-1 to the writ petition. In terms of Sections 37 and 38 of the Act, such an order of the University is described as “Ordinance”. It is evident on a plain reading of the ordinance dated 11.4.2005 (Annexure -1) that the University had sanctioned 60 seats, and 5 additional seats for “….wards of NRI on payment of fee and first-come-first-serve basis”. The University issued the requisite “Regulations” in terms of Section 39 of the Act, inter alia, prescribing the structure of the courses, fee structure etc., photocopy of which is part of Annexure-1. The University had published the advertisement for the course in question (apart from other courses not relevant in the present context) which had appeared in the local dailies on 2.5.2008 (Annexure-C), inviting applications from eligible candidates. After completion of the selection process, the merit list was prepared and 60+5 candidates were admitted without causing any grievance. The same is indeed not the subject matter of the writ petition. Thereafter, 146 more students were admitted over and above the sanctioned strength. The list of these 146 persons is marked Annexure –F to the - 5 - supplementary counter affidavit of the University, some of whom are the petitioners and respondent nos. 6 to 26. 3. The Vice Chancellor of the University received reports about irregularities committed in the admission of 146 students leading to constitution of a fact-finding Committee, comprising of three senior members of the faculty of the University, headed by the Principal of the Patna Science College. The Committee submitted its report dated 15.11.2008, and a copy of the findings is marked Annexure-J to the supplementary counter affidavit. Thereafter action has been taken as per the recommendations, the admissions have been declared null and void by the impugned order, the Course Co- ordinator has been placed under suspension, and has been served with charge-sheet. The Director of the Course-cum-Principal of the Patna College has been transferred, has been served with charge-sheet, and similar action has been taken against two clerks of the Patna College. 4. It is stated in the writ petition that the BBA course has started with the session 2005-2008, commencing with the academic year 2005-06. The course became very successful. Large number of students applied for that batch and the successive batches, all of them got placements with various Companies etc. Encouraged by the situation, the Director submitted his recommendation on 25.7.2007 (Annexure-2), to respondent no.3, (Vice-Chancellor of the Patna University), to enhance the sanctioned strength of the course from 60 to 120, and from 5 to 20 for NRIs, for the session 2007-2010. This was followed by letter dated 25.8.2008 (Annexure -5), issued under - 6 - the joint signatures of the then Co-Ordinator as well as the Director of the Course, to the Minister for the Department of Human Resource Development, through the proper channel, requesting for enhancement of seats in BBA course giving detailed facts and figures in justification of enhancement of the sanctioned strength. It is relevant to state that the selection process for the 60+5 candidates for the session in question had already taken place, and classes commenced. This was followed by letter dated 1.9.2008 (Anenxure 7 series), from the Minister to the Vice-Chancellor, approving the request of the college for “start of the additional sections in BBA course in Patna University.” The letter further stated that “….if needed, administrative formalities should be used at the earliest”. The approval is for the start of additional BBA course from the present financial year. The Minister had also issued his letter dated 2.9.2008 (Annexure 7 series), addressed to respondent no.3 (the Vice-Chancellor), sanctioning 20 extra seats for NRIs for the BBA course. This was followed by admission of at least 146 students which is the subject matter of the present writ petition. 5. While assailing the validity of the impugned action, learned counsel for the petitioners submits that the seats were validly enhanced by the State Government. He further submits that all the petitioners fulfilled the minimum qualifications for admission to the course, and figured in the merit list, though lower down because the candidates above them were no longer interested in joining the course for their own reasons, for example, they took admission elsewhere. He - 7 - next submits that none of the candidates above the petitioners in the merit list has raised grievance anywhere. He next submits that the University is bound by the principles of estoppel, inasmuch as the students had deposited money in the treasury on the strength of the challans issued by the authorities. He relies on the following reported judgments :- (i) AIR 1976 SUPREME COURT 376 (Shri Krishnan v. Kurukshetra University) (ii) 1982 BBCJ 302 (Amresh Kumar v. Principal, Medical College) He next submits that cancellation of the admissions without issuance of show-cause notices to the petitioners is violative of the principles of Natural Justice. He lastly submits that the equities are entirely in favour of the petitioners who have already attended classes for two months. None else can be admitted at this belated stage. 6. Learned counsel for respondent nos. 2 has opposed the writ petition. He submits that the Ordinance and the Regulations have been issued in terms of Sections 37 and 38 of the Act. It can be amended only as per the detailed procedure prescribed therein. He relies on the judgment of a Division Bench of this Court reported in 1990 BBCJ 132 [Patna High Court Ministerial Officers Association v. State of Bihar]. He next submits that in a situation like the present one, prior permission of the State Government in terms of Section 35 is imperative because it may involve creation of new posts with financial implications. The alleged enhancement of seats without following the mandatory procedure prescribed by Sections 37 and 38, as well as Section 35 of the Act, is null and void. Neither the petitioners nor - 8 - respondent nos. 6 to 26, have placed on record any material to show, nor is any available in the records of the University, that the Vice- Chancellor of the University had forwarded the recommendations of the Director and the Course Co-Ordinator to the State Government for enhancement of seats. He next submits that the letters dated 1.9.2008 and 2.9.2008 (Annexure 7 series), from the Minister to the Vice- Chancellor, were not orders of the Government. No decision at the Government level was taken to enhance the seats. He submits that, in any view of the matter, the recommendation was to enhance the seats to the extent of 60+15 seats, and at least 146 students were admitted. He next submits that enhancement of seats were not notified, let alone given wide publicity, so that the students in the merit list may take their turn for Admission. The alleged two notices dated 4.9.2008 (Annexure 12 series), described as “Admit for Waiting List”, and “Admit for Waiting List NRI quota seats”, are of doubtful authenticity, and even if taken to be on their face value, were alleged to have been pasted on the notice board which has very limited circulation/publicity, and does not meet the requirement of law. He relies on the following reported judgments :- (i) 2003 (3) PLJR 71 (Rita Kumari v. State of Bihar ) (ii) 2005 (3) PLJR 195 (Ashutosh Kumar v. State of Bihar) He also submits that the Court should never perpetuate an illegality. He relies on the judgment of the Supreme Court reported in (1997) 1 Supreme Court Cases 35 (Secy., Jaipur Development Authority v. Daulat Mal Jain). - 9 - 7. Learned counsel jointly representing respondent nos. 3, 4 and 5 has made common cause with respondent no.2, and has opposed the writ petition. He submits that the seats were never validly enhanced. He next submits that except petitioner no.7 (Priyanka Kumari), all the 145 candidates were down below the merit list and have been admitted by surreptitious methods. He also submits that the candidates admitted against NRI quota did not qualify for the quota. None of them were wards of NRIs. He further submits that a large number of admissions were made much before receipt of the letters dated 1.9.2008 and 2.9.2008 (Annexure-7 series), and also before the notices were allegedly pasted on the notice board. The recommendations of the Director and the Course Co-Ordinator were for enhancement of seats to the extent of 60+15 seats, but 146 or more candidates were instead admitted. He further submits that admission to any course beyond the sanctioned strength is impermissible in law and can never be countenanced. He relies on the judgment of the Supreme Court reported in 2000 (4) PLJR (SC) 99 (Mallikarjuna Mudhagal Nagappa v. State of Karnataka). He next submits that the impugned action has been taken after the fact-finding Committee submitted its report. Action is being taken as per the findings of the report against the allegedly erring persons. He lastly submits that suspension of the then Director-cum-Principal of the Patna College as well as the clerical staff, and equally criminal case against the erring persons, is in contemplation. 8. Learned counsel for respondent nos. 6 to 9, as well as - 10 - for respondent nos. 20 to 26, have supported the writ petition. 9. Learned counsel for the petitioners in reply has submitted that it is evident from a perusal of the Ordinance (Annexure 1) that prior permission of the State Government was the only requirement for enhancement of seats. He further submits that a course on self-financing basis does not need any financial assistance from the State Government or the University and, therefore, the provision of Section 35 of the Act is not attracted. He also submits that sanction of the State Government was conveyed by the letter dt. 1.9.2008, of the Minister for Human Resources Development Department, sanctioning additional sections for the course without specifying the exact number of seats, which was left to the discretion of the Director and the Course Co-Ordinator. He lastly submits that the NRI seats were enhanced to the extent of 20 more seats as per the letter dated 2.9.2008 of the Minister (Annexure 7 series). 10. We have perused the materials on record and considered the submissions of learned counsel for the parties. We shall first deal with the issue whether or not there was valid enhancement of the sanctioned strength of seats for the course. It is evident on a perusal of the Ordinance (Annexure 1), that maximum number of 60 seats, and 5 additional seats for the wards of NRI, were created for the course. The Ordinance stipulated that the same may be revised with prior permission of the State Government. Sections 37 and 38 of the Act provide detailed procedure for enhancement of seats. In substance, Section 37 empowers the Syndicate of the University to issue - 11 - ordinance making provision for the items mentioned therein. Section 38 of the Act provides that the Ordinance under Section 37 shall be submitted to the Senate which, in its turn, may recommend to the Chancellor for the approval of the Ordinance. It is evident that the Ordinance (Annexure 1) could be modified after following the procedure prescribed by Sections 37 and 38 of the Act. The petitioners have not placed any material on record to show that the procedure prescribed in Sections 37 and 38 were followed. It appears that enhancement of the seats were the handiwork of the Director and the Course Co-Ordinator. We do not wish to make any comment on the conduct of the Minister because he is not a respondent in the present proceedings. As stated hereinabove, the Ordinance (Annexure 1) sanctioned 60+5 seats which by necessary implication means that the members of the teaching faculty, the staff, and the infrastructure are available to meet the requirements of the strength to that extent. It is inherent in the situation that enhancements of seats may involve addition of the members of the teaching faculty and the staff, and possibly infrastructure also. The existing strength of members of the teaching faculty and staff is meant to cater to 65 students, whereas at least 146 more students were admitted. Section 35 is headed “Post for appointment shall not be created without sanction of the State Government”. The same Section uses the expression “…..without prior permission of the State Government” also occurring in the Ordinance (Annexure 1). Law is well settled that it is the duty of the State Government to meet the entire deficit of the Universities created - 12 - under the Act. Reference may be made to Section 47 of the Act and the judgments. Therefore, the present case is covered by the terms of Section 35 of the Act also. Prior permission of the State Government in terms of Section 35 of the Act in the present situation was essential. 11. I must consider the documents placed on record by the petitioners in an effort to satisfy this Court that the seats were enhanced in accordance with law. The letter dated 25.7.2007 (Annexure 2) is from the Director to the Vice-Chancellor, recommending enhancement of seats from 60 to 120 seats, and for the NRIs to be increased from 5 to 20, for the session 2007-2010. The letter dated 25.8.2008 (Annexure 5) is under the joint signature of the Director and the Course Co-Ordinator, to the Minister for the Department of Human Resources Development, through the Registrar of the Patna University, recommending enhancement of seats. This was followed by the letter dated 1.9.2008 (Annexure 7 series), from the Minister to the Vice-Chancellor, conveying approval of the State Government of additional sections in the BBA course. It also stated that “…….if needed, administrative formalities should be used at the earliest.” The letter dated 2.9.2008 (Annexure 7 series), added 20 more seats for NRIs. It is manifest on a perusal of these letters that the Vice- Chancellor of the University nowhere figured except that the letters were addressed to him. He does not seem to have taken any action at all on the letters received from the Director and the Course Co-Ordinator, nor did he act upon the letters received from the Minister. This is apart from non-observance of the procedure - 13 - prescribed by Sections 37 and 38, as well as Section 35 of the Act. It thus appears that enhancement of seats and admission of students to these seats was the malafide act of the Director, the Course Co- Ordinator, and others. Furthermore, learned counsel for respondent no. 2, as well as respondent nos. 3 to 5, are right in their submission that the Director and the Course Co-Ordinator had recommended for enhancement of seats to the extent of 60+15, whereas at least 146 students have been admitted. 12. It appears from a perusal of the letter dated 16.11.2008 (Annexure 13 to the petitioners’ rejoinder), from the Personal Secretary of the Minister to the Vice-Chancellor, that the Minister’s said letter dated 1.1.2009 (Annexure 7 series) was a “gair- sarkari preshan”. It thus appears that Annexure-7 was not an order of the State Government. The Minister ought to have taken full care to follow the prescribed procedure as per the statute and should not have ventured to enhance the sanctioned strength by issuing a “gair-sarkari preshan”, and without obtaining prior approval of the State Government. 13. Learned counsel for the official respondents have rightly relied on the Division Bench judgment of this Court in Patna High Court Ministerial Officers’ Association v State of Bihar (supra), wherein it has been laid down that the same procedure has to be followed for revising or altering an administrative decision. The proposition applies with greater force to the present case which relates to exercise of statutory powers. - 14 - 14. To conclude this part of the matter, we are convinced that the procedure prescribed for enhancement of seats of the BBA course was not followed. It was the handiwork of the Director and the Course Co-Ordinator of the University, and others. 15. Learned counsel for the petitioners has next contended that the petitioners fulfilled the minimum educational qualifications, and did figure in the merit list. Learned counsel for respondent nos. 2 to 5, inter alia, submits that some of the candidates amongst the 146 students including the petitioners did not appear at the entrance test. It is further manifest from a perusal of the merit list (Annexure F) that, except petitioner no.7 (Priyanka Kumari), all the rest figured very lower down in the list. Paragraph -18 of the supplementary counter affidavit of respondent nos. 3 to5 is reproduced hereinbelow :- About the petitioners: Sl Name Pet. No. Marks Rank Roll No. Category 1 Ashutosh Kr. 1 68 403 4468 GEN 2 Manish