IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1843 of 2011 1. Dr. Rai Murari, son of late Rai Gopal Sharma, resident of Lali Bhawan Compound, Nehru Nagar, P.S. Patliputra, District – Patna. 2. Dr. Madhurendra Nath Sinha, son of late Rajendra Nath Sinha, resident of 304, Indralok Apartment, New P.P. Colony, P.S. Patliputra, District – Patna. _______ Petitioners Versus 1. THE PATNA UNIVERSITY through its Registrar. 2. The Vice Chancellor, Patna University, Patna. 3. The Registrar, Patna University, Patna. 4. Dr. Rajkishore Prasad, presently holding the post of Principal, Bihar National College, Patna University, Patna. ________ Respondents ----------- For the petitioners : M/s. Vinod Kumar Kanth, Sr. Advocate and Abhinav Srivastava. For Patna University: Mr. Ajay Kumar Sinha. For respondent no.4: M/S. Shivaji Pandey, Sr. Advocate, Mr. Rupak Kumar and Ram Kumar Singh. ------ 07. 13/05/2011 Private respondent No.4 was appointed as a Principal of what is known as Bihar National College (B N College), Patna, which is stated to be a constituent college of Patna University. The notification by virtue of which the private respondent came to be appointed is dated 3.6.2009 and is Annexure-3 to the writ application. This notification has been issued under the so-called orders of the Vice Chancellor of Patna University under the signature of the Registrar of Patna University. His appointment is under challenge in the present writ application on many a grounds but primarily that respondent‟s appointment is not in accordance with the Patna University Act, 1976 and the related statutes notified from time to time as also that respondent No.4 lacks basic eligibility in 2 terms of the advertisement. 2. Petitioner No.1 is stated to be a Professor of Economics working under Patna University and petitioner No.2 is a Professor and Head of Department of Geology in B N College and both of them were applicants to the post and have vital interest in the matter as to who and how he is occupying the post of a Principal of the College in question. Whether he has the requisite qualification coupled with the fact whether such selection or appointment is in conformity with law or not as according to them the selection has been carried out in an illegal and capricious manner. 3. B N College is a premier institution imparting teaching in a number of disciplines under the Science and Arts stream for over 121 years. It became a constituent college under Patna University after the enactment of Patna University Act, 1951. According to the pleadings, the teaching imparted in the College is of under graduate and post graduate level, basically relating to the general stream with no specialized` courses as such being offered. One of the first and foremost contention against the appointment of respondent No.4 is that he does not come within the definition of a teacher as defined under section 2(r) of the Patna University Act, 1976. Section 2 (r) of the Act reads as follows: “Teacher” includes Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instruction in any 3 department, or in any College or institute maintained by the University.” 4. The word “Principal” has been defined in section 2(k) of the Patna University Act, 1976, which reads “Principal” means the head of a college”. The private respondent is supposed to be holder of degrees in Electronics and Electronics is not one of the subjects which is taught in B N College. Since Electronics is not a part of curriculum of the University much less the College, then a person alien to the courses which are taught, cannot be picked up for shouldering the responsibility of the Principal of the College in question. The basis for making such a submission is a judicial pronouncement which came to be made in the case of Dr. (Mrs.) Annapurna Devi and others v. State of Bihar and others, reported in 1997 (1) PLJR 965. In a similar circumstances after taking note of the various provisions under the Patna University Act, 1976 including the definition clauses, the Court crystallizes its opinion in para-8, 10 and 12. These paragraphs are reproduced below as they are of vital significance to the issue raised in the present writ application:- “8. It is no doubt that a Principal has been defined to mean the Head of a College. But, it is equally true that the Act envisages a teacher to include the Principal of a College. Sections 2(k) and (r) must be read with Section 7 which provides that teaching in connection with the University courses shall be conducted through the Colleges and through Departments maintained by University by the 4 University Professors, Professors, Readers, Lecturers and Teachers in accordance with any syllabus prescribed by the regulations. (Emphasis supplied). Reading the provisions together I have no doubt that though the Principal is a Head of a College, he is also a teacher, and as such, he is entitled to conduct teaching work in the College/faculty of which he is the Principal. There is no reason to give a restricted meaning to the definition of the term „teacher‟ in Section 2(r) of the Act, because to me it appears that there is nothing in the context which may compel one to give to the definition of teacher a restricted meaning and to conclude that though a Principal is also a teacher, his inclusion as a teacher is only for the limited purpose of granting to him the benefit of general service conditions and such other similar purpose only. In my view, Section 2(r) as well as Section 7 make it quite clear that a teacher, which includes a Principal, may impart instructions in the College maintained by the University, and is entitled to engage classes and conduct teaching work. Similarly, I am of the view that Section 2(k) which defines a Principal to mean the head of a College, without laying down the qualification for such post, does not automatically lead to the conclusion that he is not required to do teaching work under the Act(Emphasis mine). The aforesaid view overlooks the fact that a Principal, is appointed under the Act in the sanctioned scales of University Professor/Reader and, therefore, the person so appointed must possess the requisite qualification for being appointed as University Professor/Reader. It was, therefore, not necessary to prescribe the 5 qualification while defining the post of Principal under Section 2(r). In fact the advertisement issued by the Commission itself provided that the posts advertised were sanctioned in the scales of University Professor/Reader. The advertisement in terms prescribed the qualification and experience which made a person eligible for appointment as Principal. It was provided that the candidate must possess a first or high second class Master‟s degree or equivalent degree of a foreign University with consistently good academic record, and not less than 12 years‟ teaching experience at least as a lecturer in a Degree College/University Department. The insistence on 12 years teaching experience as Lecturer in a Degree College/University Department itself emphasizes the fact that in order to become a Principal of a College, the candidate must first be an experienced lecturer with long teaching experience. If the post of Principal was merely an administrative post unrelated to teaching, such a qualification would not have been prescribed. It must, therefore, be held that the University itself recognized the fact that the Principal of a College must also be an experienced teacher (Emphasis mine). On appointment as Principal of the College, he acquires the status of a University Professor/Reader, as the case may be. The provisions of the Act leave no room for doubt that a Principal is also a teacher and the provisions affirmatively provide that he may conduct teaching work. As against this there is nothing in the Act or the statutes which prohibits a Principal from conducting teaching work. 10. I have, therefore, no hesitation in agreeing with Aftab Alam, J., that a Principal of a College is also a 6 teacher. He is authorized by the Act to conduct teaching work which obviously must be in the subject of his specialization, but as a Principal of the College he is also the Head of the College. In other words, a Principal is also a teacher, but with added administrative responsibilities as head of a College. 12. I, therefore, find myself in agreement with Aftab Alam, J. and I hold that the Principal of a College must possess the requisite qualification and experience as a teacher in one of the subjects assigned to the faculty to which the College belongs. He is not a mere administrative head, but is also a teacher and authorized by law to conduct teaching work and engage classes and otherwise impart instruction in the College. This he cannot do unless he is eligible and qualified to teach the subject taught in the College of which he is the Principal. In the cases of Colleges where more than one subject is taught, a person appointed as a Principal must possess the requisite qualification and experience in any of the subjects taught in the College. However, in Colleges where only one subject is taught, he must have the necessary qualification and experience to teach that subject. In other words, a person cannot be eligible or qualified to hold the post of Principal, if he does not possess the requisite qualification and experience in any of the subjects taught in that College/faculty” (Emphasis mine). 5. The fact is reiterated that Electronics is not a stream or subject which is taught in Patna University, much less B N College. Therefore, as per the provisions of law settled by this Court years ago, respondent No.4 could not be appointed as 7 a Principal of the College having the qualification which he has. 6. The second limb of the argument is that after the issuance of advertisement on 19.10.2008, which laid down the basic requirements and eligibility for the various posts of Principals under Patna University in terms of Annexure-1, a Scrutiny Committee consisting of three senior Professors of the University came to be notified as would be evident from the notification dated 6.1.2009, annexed as Annexure-D to the counter affidavit filed on behalf of respondent Patna University. The Chairman of the Scrutiny Committee is stated to be a former Pro-Vice Chancellor. The Scrutiny Committee performed its duty and prepared a comparative chart of candidates. The said chart is Annexure-2 to the writ application. Attention of the court was drawn by the learned senior counsel to a significant endorsement made against the name of the private respondent , which reads as “Electronics” N E (not eligible). There are similar comments with regard to other candidates but despite such objections or infirmities having been pointed out with regard to eligibility of candidates including the private respondent, the selection committee went ahead and selected respondent No.4 without over-ruling such an objection or disagreeing with the objection at any stage of the selection. Contention of the counsel for the petitioners, therefore, is that the constitution of a such high powered committee to carry out scrutiny was not a mere formality but 8 was to bring the status of each and every candidates to the notice of the selection committee who were to thereafter apply themselves to the eligibility of the candidates. But for reasons best known to the respondent authorities, all that was shunned and ineligible candidate was picked up for appointment as Principal of the College in which Electronics is not a stream or subject of teaching. If respondent No.4 was ineligible in the above stated circumstances, then his selection without recording any reason for disagreement with such objection or ineligibility vitiates such selection or appointment. 7. Yet another infirmity which has been pointed out by the senior counsel representing the petitioners is that in furtherance to the power vested under section 56B of the Patna University Act, 1976, the Chancellor‟s secretariat notified Statute dated 30.6.2008. This Statute is on record as Annexure- E/1 annexed with the counter affidavit filed on behalf of respondent No.4. Statute 7 deals with the composition of a Selection Committee for the post of the Principal having Professor scale /Reader scale) and the same is being reproduced here for easy reference: “7 (i) Composition of the Selection Committee for the post of the Principal (Professor scale/Reader scale) for multiple subject faculty colleges: (a) Subject to the provisions contained in the Patna University Act, 1976 (as amended up-to-date) and the Bihar State Universities Act, 1976 (as amended up- to-date), all the three experts shall be in the rank of 9 University Professor and out of that at least one shall be the Vice-Chancellor/Former Vice– Chancellor/Director/Principal of a constituent college. The 3 (three) experts in the Selection Committee will be nominated by the Vice-Chancellor from a panel of not less than 10 (ten) experts approved by the Academic Council subject to the following conditions: (i) All the three experts shall be from outside the University. (ii) At least one expert should belong to SC/ST community. (iii) At least two experts shall be from outside the State. (b) Seniormost Head of the Deptt/seniormost Principal of constituent college of concerned University in the rank of University Professor. (ii) Composition of the Selection Committee for the post of the Principal (Professor grade/Reader grade) for single subject faculty colleges: (a) Subject to the provisions contained in the Patna University Act, 1976 (as amended up-to-date) and the Bihar State Universities Act, 1976 (as amended up- to-date), all the three experts of the discipline (subject) shall be in the rank of University Professor and out of that at least one shall be the Vice- Chancellor / Former Vice-Chancellor/ Director/ Principal of a constituent college. The three experts in the Selection Committee will be nominated by the Vice-Chancellor from a panel of not less than 10 (ten) experts approved by the Academic Council for each subject to the following conditions: 10 (i) All the three experts shall be from outside the University. (ii) At least one expert should belong to SC/ST community. (iii) At least two experts shall be from outside the State. (b) Head of the Deptt of the discipline (subject) concerned not below the rank of University Professor. Provided that if the Head of the Deptt of the discipline (subject) concerned is not available in the rank of University Professor then the Vice- Chancellor shall nominate Head of the Deptt/Institution of the discipline (subject) concerned of any other University not below the rank of University Professor.” 8. Taking que from the provisions of the Statute a submission is made that the constitution or the composition of the Selection Committee is in complete violation of Statute 7 (i) (a). It is the stand of the petitioners that there was a duty cast on the Academic Council to recommend names of not less than 10 (ten) experts from which the Vice-Chancellor had the authority to nominate three experts. However, in the present case there is a complete go-by because the Academic Council did not shoulder its responsibility and merely gave the powers to the Vice-Chancellor to call for names from various Deans of faculty and Head of Departments of the University. This innovation or deviation has not been disputed by respondent University in the counter affidavit. However, it has been sought 11 to be explained that the Academic Council had taken a resolution on 15.5.2008 and based on such a resolution the Vice-Chancellor of the University went ahead and constituted the Selection Committee from such a vast list, which gave a wide amplitude to the Vice-Chancellor to play around or pack the committee with his men to produce the desired result. 9. Stand of the learned senior counsel for the petitioners is that when the Statute was notified on 30.6.2008, any resolution contrary to the Statute and more so prior to coming of the Statute would be a non est resolution of the Academic Council since resolution is dated 15.5.2008 and the Statute was notified on 30.6.2008. 10. Another significant aspect which emerges from the material and the annexures which have been annexed with the counter affidavit of the University is that at least two of the so-called experts who have found their way in the Selection Committee constituted to select the Principal of B N College, have no standing whatsoever and they have been virtually smuggled into the Selection Committee because at least these two experts‟ name did not figure in any of the list which was recommended either by a Dean or a Head of Department or the Senate. Obviously the Selection Committee was packed with outsiders with an object of tilting the result or balance favourably to the wish of the then Vice-Chancellor. 11. This position is not denied by the University in 12 the affidavit filed on their behalf. In fact, this position has been accepted in so many words in the counter affidavit filed on behalf of the Patna University. 12. Another frontal attack which has been made on behalf of the petitioners on the appointment of respondent No.4 is that respondent No.4 lacks the basic qualification as has been laid down in the advertisement contained in Annexure-1. Since the private respondent is a holder of a Reader grade, therefore, the qualification for appointment as a Principal laid down is as under: 4. Bihar National College: Qualifications: Professor‟s Grade: ............................................... Reader‟s grade:- 1. Master degree in the Faculty of Social Sciences/Humanities/Science with atleast 55% marks or its equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E & F. 2. Ph.D. in the Faculty of Social Sciences/Humanities/Science or its equivalent qualification. 3. Total Experience of 10 (ten) years teaching/research in University /Colleges and other Institution of Higher Education. 13. According to the petitioners, the private respondent does not fulfil the requirement of total experience of 10 years of teaching/research in University/Colleges and other Intuitions of higher education because private respondent came to be appointed as a Lecturer for the first time on 17.11.1997. He was appointed as a teacher in Electronics in B R Ambedkar 13 University, Muzaffarpur in the Department of Electronics. The post of lecturer was offered to the private respondent based on his PG Degree in Electronics but he does not have continuous teaching experience /research in any University because admittedly Respondent No.4 went on a scholarship to Japan as a student between April, 2001 to March, 2002 and thereafter he is supposed to have been admitted in a doctoral programme in what is known as Graduate School of Information Science, Nara Institute of Science and Technology between April, 2002 to March, 2005. This fact is not a disputed fact because this aspect has been corroborated by Annexure-5, which is the rejoinder petition to the counter affidavit filed on behalf of the respondent No.4. Based on the material, a categorical stand is taken on behalf of the petitioners that private respondent was missing from the country between April, 2001 till March, 2005 and was a student in a University or in an Institute located in Japan. If that is so, then that period cannot be treated or accepted as part of his teaching or research experience, allowing him to claim experience of 10 years in the above stated circumstances. In fact, an effert was made on behalf of respondent No.4 to show that he was doing research in the University and therefore, the eligibility laid down in the advertisement is met because 10 years can be either as a teacher or a researcher but there is no unimpeachable evidence on this count to support such a stand. 14 14. On this stand of the private respondent, the petitioners have two things to urge, (i) that the private respondent is intentionally hiding the fact that he was a student and was given a scholarship as a student to pursue his higher studies in Japan and was not a research scholar as sought to be made out for the sake of arguments in the present writ application. Not only this, a book which indicates equivalence of foreign degrees, published by „Association of Indian Universities‟, has been produced by the senior counsel for the petitioners to show that so far as the Nara Institute of Science and Technology is concerned, this is not even a recognized Institute, therefore, any degree or work carried out in such an intuition is of no avail to the private respondent. In support thereof the list of Universities or the Institutes of Japan , which have recognition in India, has been produced. They are only 7 institutes mentioned under the country head Japan and the name of this institute namely, Nara Institute of Science and Technology does not figure. Mere acquisition of higher degrees from a unrecognized University or Institute cannot form the basis for selection or for fulfilling the eligibility. 15. From the same book the attention of the Court has also been drawn to page 86. Here list of University or the Institutes recognized by the B R A University, Muzaffarpur has been given. This University does not recognize any degree issued by any Institute of Japan because name of Japan does 15 not even figure as one of the country in the said list. This is significant because respondent No.4 was supposed to be a lecturer in B R A University, Muzaffarpur and he supposed to have been given leave to pursue his higher studies and if that University does not recognize the degrees obtained by the private respondent from the Institute in question, then how come Patna University or the Selection Committee accepted such a degree without any objection especially by the Selection Committee, has neither been explained by the University or the private respondent in so many words. 16. The Court granted opportunity to the private respondent to show from the so-called offer which was made by the Nara Institute of Science and Technology as to whether he was a research scholar as being claimed by him or he was a student carrying research or higher studies. No clear answer was given. An evasive kind of answer was given that all such documents were surrendered to Nara Institute. The stand taken on behalf of respondent No.4 is that even Government of India had approved the scholarship which was granted by such an Institute and that by itself is a good certification with regard to recognition as well as the fact that the private respondent was permitted to avail the scholarship for pursuing higher studies in Japan. 17. So far as the Patna University is concerned, it is after much reluctance that the necessary documents were 16 produced and also filed with the counter affidavit because the Court wanted to test the bonafide of the stand or the fairness of the process of selection carried out by the University, with regard to selection and appointment of the private respondent. It was necessary to cross check whether the submissions made and the documents annexed by the petitioners were authentic or motivated. 18. From the affidavit which came to be finally filed after much coaxing by the Court, on behalf of the University, none of the assertions made on the factual matrix stands disapproved or as not true. However, on the question of law the stand of the University is as under: That since the definition of a teacher under 2(r) also includes a Principal, therefore, widest interpretation has to be given to the word „Principal‟ so as to bring it within the ambit of a teacher. There is no requirement for a Principal to be a teacher in a specified stream to be eligible for being appointed as a Principal in the College in question because the responsibility of the Principal is more administrative as a overall head of the institute. Therefore, his having specialization or degree in a particular stream, which is taught in the college may not be necessary. 19. The Court, however, must record its disagreement with