CIVIL WRIT JURISDICTION CASE No.10359 OF 2008 (An application under Article 226 of the Constitution of India) 1. SATISH CHANDRA JHA, S/O LATE PT. K.C. JHA, RESIDENT OF VILLAGE-CHANPURA (WEST), P.S.-BENIPATTI, DISTRICT- MADHUBANI, AT PRESENT RESIDING AT PROFESSOR‟S QUARTER, B.R.A. BIHAR UNIVERSITY CAMPUS, MUZAFFARPUR. 2. KSHEMANAND SINGH JHA S/O LATE DHARMANAND SINGH JHA, RESIDENT OF VILLAGE AND P.O.- CHANAUR, P.S.- MANIGACHI, DISTRICT- DARBHANGA, AT PRESENT RESIDENT OF 2, READER‟S QUARTER, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 3. AMOD PRASAD S/O LATE JAINATH PRASAD, RESIDENT OF NAYA TOLA, NEW ROAD, NEAR THAKUR NURSING HOME, MUZAFFARPUR. 4. YUGAL KISHORE PRASAD SINHA S/O LATE BENI MADHAW PRASAD SINHA, RESIDENT OF VILLAGE-KUBAR GRAM, P.S.- BENGHA, DISTRICT- SAMASTIPUR, AT PRESENT RESIDENT OF PROFESSORS QUARTER, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 5. RABINDRA KUMAR VERMA „RAVI‟ S/O LATE RAM CHANDRA PRASAD, RESIDENT OF SHEOPURI LANE, DAMU CHAK, MUZAFFARPUR, AT PRESENT RESIDENT OF 3, READER‟S QUARTER, B.R.A. BIHAR UNIVERSITY CAMPUS, MUZAFFARPUR. 6. RAJENDRA MISHRA S/O LATE JAGARNATH MISHRA, RESIDENT OF VILLAGE-GENOULI, P.S.-LAURIA, DISTRICT- WEST CHAMPARAN, AT PRESEENT RESIDING AT TYPE – „A‟ QUARTER NO.1, L.S. COLLEGE CAMPUS, DAMUCHAK ROAD, MUZAFFARPUR. --------------------- (PETITIONERS) Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, PATNA. 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA. - 2 - 6. THE VICE CHANCELLOR, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 7. THE REGISTRAR, B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR --------------------- (RESPONDENTS) FOR THE PETITIONERS: - Mr. TARA KANT JHA, SR. ADVOCATE & Mr. DHIRENDRA KR.JHA 2, ADVOCATE FOR THE B.R.A. BIHAR UNIVERSITY: - MR. AJAY BEHARI SINHA, ADVOCATE & MR. LALIT KISHOREE, A.A.G.-III FOR THE STATE:- MR. J.P. KARN, SR. ADVOCATE FOR THE CHANCELLOR:- MR. R.B. MAHTO, SR. ADVOCATE & MR. SHIVENDRA KISHORE, ADVOCATE FOR THE INTERVENOR:- MR. RAMA KANT SHARMA, SR. ADVOCATE & MR. L.K. SHARMA, ADVOCATE WITH CWJC No.13951 OF 2008 1. PRAMILA PRASAD W/O DR. MAHADEO PRASAD SAHA, RESIDENT OF VILLAGE HASSANGANJ ROAD, P.O.- MIRJAN HAT, P.S.- MOJAHIDPUR, DISTRICT-BHAGALPUR, AT PRESENT UNIVERSITY PROFESSOR DEPARTMENT OF HOME SE-FOOD AND NUTRITION, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 2. SURENDRA PRASAD ROY, S/O LATE HARI RAJ ROY, RESIDENT OF MOHALLA- RAJA VILLA, SATISH SANKAR LANE, MASAK CHAK, P.S.- KOTWALI, DISTRICT-BHAGALPUR, AT PRESENT DEPARTMENT OF ZOOLOGY, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 3. BINODA NAND THAKUR, S/O LATE K.N. THAKUR, RESIDENT OF VILLAGE LAL KOTHI, TATARPUR, P.S.- TARAPUR, DISTRICT- BHAGALPUR, AT PRESENT UNIVERSITY PROFESSOR DEPARTMENT OF SOCIOLOGY, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 4. REWATI RAMAN LAL DAS S/O LATE HARI KINKAR DAS, RESIDENT OF MOHALLA-17, RED CROSS ROAD, WEST OF REGISTRY OFFICE, ADAMPUR, P.S.-KOTWALI, DISTRICT BHAGALPUR, AT PRESENT DEPARTMENT OF ECONOMICS, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR - 3 - 5. AKSHAY KUMAR MISHRA, S/O LATE BHAGWAN PRASAD MISHRA, RESIDENT OF MOHALLA JAWARIPUR CENTRAL JAIL ROAD, P.S.- BARARI, DISTRICT- BHAGALPUR AT PRESENT DEPARTMENT OF STATISTICS AND COMPUTER APPLICATION, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR 6. DEVENDRA PRASAD SINGH, S/O LATE NAGENDRA PRASAD SIGNH, RESIDENT OF VILLAGE-SWARNDIH, P.O. AND P.S. TARAPUR, DISTRICT-MUNGER AT PRESENT HEAD DEPARTMENT OF HISTORY, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 7. IRA GHOSAL W/O SRI PUSKAR BARAT, RESIDENT OF VILLAGE C/O RATNA GHOSAL, GHOSI TOLA, P.S.-MUNGER, DISTRICT-MUNGER AT PRESENT P.O.-DEPARTMENT OF BENGALI, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 8. UMESH PRASAD SINGH S/O LATE DUKH HARAN PRASAD SINGH, RESIDENT OF MOHALLA PROFESSOR COLONY PATEL NAGAR, P.O.-T.N.B. COLLEGE BHAGALPUR, P.S.-KOTWALI- BHAGALPUR AT PRESENT UNIVERSITY PROFESSOR DEPARTMENT OF GEOGRAPHY, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR. 9. MRS. USHA RANI SINGH, D/O SRI UDAICHAND SAHAY, RESIDENT OF MOHALLA-PROFESSOR COLONY PATEL NAGAR, P.O.-T.N.B. COLLEGE BHAGALPUR, P.S.-KOTWALI, DISTRICT-BHAGALPUR AT PRESENT UNIVERSITY PROFESSOR DEPARTMENT OF PHYCHOLOGY, T.M. BHAGALPUR UNIVERSITY, P.S. KOTWALI, DISTRICT- BHAGALPUR. 10. KAILASH PANDEY „VIMAL‟ S/O LATE SURAJ VANSH PANDEY, RESIDENT OF VILLAGE BHARATPURA, P.S. DULHIN BAZAR/BIKRAM, DISTRICT- PATNA AT PRESENT PROFESSOR COLONY, Q. NO. 15, SARAI, P.S. KOTWALI, DISTRICT- BHAGALPUR. 11. BAL KRISHNA JHA S/O LATE SHAILESHWAR JHA, RESIDENT OF VILLAGE-RAIPUR, P.S.-BELHAR, DISTRICT BANKA AT PRESENT DEPARTMENT OF RURAL, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 12. MRS. QUAMAR JAHAN W/O MD. BADRU HASAN, RESIDENT OF MOHALLA-BHIKANPUR (HATIA), P.S.- KOTWALI, DISTRICT- BHAGALPUR AT PRESENT P.G. DEPARTMENT OF URDU, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 13. MANIKA SAHAY D/O SRI KRISHNANANDAN SAHAY RESIDENT OF MOHALLA-PROFESSOR COLONY, P-4, LAL BAG SARAI, P.S.- KOTWALI, DISTRICT-BHAGALPUR AT PRESENT DEPARTMENT OF - 4 - POLITICAL SCIENCE, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR. 14. ANIRUDH THAKUR S/O SRI PREM LAL THAKUR, RESIDENT OF MOHALLA-12, SARASWATI NIKUNJ, ANANDGARH HATA (TULSI NAGAR) S.M. THAKUR PATH, P.S.-BARARI, DISTRICT-BHAGALPUR AT PRESENT UNIVERSITY PROFESSOR AND HEAD OF DEPARTMENT OF COMMERCE, T.M. BHAGALPUR UNIVERSITY, BHAGALPUR, P.S. KOTWALI, DISTRICT- BHAGALPUR -------------------- (PETITIONERS) Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL OF SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, PATNA. 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA. 6. THE VICE CHANCELLOR, T.N.B. UNIVERSITY BHAGALPUR. 7. THE REGISTRAR, T.M.B. UNIVERSITY BHAGALPUR. --------------------(RESPONDENTS) FOR THE PETITIONERS :- Mr. TARA KANT JHA, SR. ADVOCATE & Mr. ABHAY KUMAR SINGH, ADVOCATE & MR. BRAJESH KUMAR FOR THE T.M. BHAGALPUR UNIVERSITY: - MR. ASHOK KR. KESHRI, ADVOCATE FOR THE STATE:- MR. N.K. SINHA, A.A.G.-10 & MR. MD. ANIS AKHTAR, J.C. TO A.A.G.-10 FOR THE RESPONDENT NO.5 (CHANCELLOR):- MR. R.B. MAHTO, SR. ADVOCATE & MR. SHIVENDRA KISHORE, ADVOCATE WITH CWJC No.13952 OF 2008 1. HARI MOHAN PRASAD, SON OF LATE RAM LALIT PRASAD, RESIDENT OF M/74, HOUSING BOARD COLONY, P.S. –GAYA DISTRICT - GAYA - 5 - 2. MD. HABIBAL RAHMAN KHAN, SON OF LATE MD. ALI HASSAN KHAN, RESIDENT OF 4/260, ALIGANJ, KATAI HILL ROAD, P.S. – GAYA DISTRICT - GAYA 3. FASIHUZ ZAMAN, SON OF LATE HASAN IMAM, RESIDENT OF KATAI HILL ROAD ALIGANJ, P.S. –GAYA DISTRICT - GAYA 4. DHIRENDRA KUMAR, SON OF LATE BALRAM PRASAD SINGH, RESIDENT OF WEST ROTARY D.A.V. SCHOOL, ASHOKNAGAR, P.S.- GAYA, DISTT.-GAYA. 5. KUSUM KUMARI, D/O LATE SIA SARAN SINHA, RESIDENT OF ANTA KOTHI, KATAI HILL ROAD, P.S.-GAYA DISTT.- GAYA. 6. INDU BALA PRASAD, D/O LATE SATYENDRA, RESIDENT OF MIG 78, CHANAKYAPURI COLONY, P.S.- GAYA, DISTT. –GAYA 7. RANA PRATAP SINGH, S/O LATE JAINATH SINGH, RESIDENT OF A/2, MAGADH UNIVERSITY CAMPUS, P.S.- GAYA, DISTT.-GAYA. ----------------------- (PETITIONERS) Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, PATNA. 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA. 6. THE VICE CHANCELLOR, MAGADH UNIVERSITIES, BODH GAYA. 7. THE REGISTRAR, MAGADH UNIVERSITIES, BODH GAYA. --------------------------(RESPONDENTS) FOR THE PETITIONERS :- Mr. TARA KANT JHA, SR. ADVOCATE FOR THE STATE:- MR. LALIT KISHORE, A.A.G.-III & MR. SATYABIR BHARTI, J.C. TO A.A.G.-3 FOR THE RESPONDENT NO.5:- MR. R.B. MAHTO, SR. ADVOCATE & MR. SHIVENDRA KISHORE, ADVO. FOR THE MAGADH UNIVERSITY: - MR. YUGAL KISHORE, ADVOCATE - 6 - WITH CWJC No.14200 OF 2008 1. RAJ KISHORE JHA SON OF BAM SHAMBHU DUTTA JHA, RESIDENT OF MOHALLA TEACHERS FLAT NO. 12, P.S. LAHERIASARAI P.O. SHUBHANKARPUR QUILA GHAT, DISTRICT DARBHANGA. 2. KUMARI LAWANYA KIRTI SINGH “ KABYA” DAUGHTER OF SHRI CHANDRA KISHORE SINGH RESIDENT OF MOHALLA FLAT NO. 108 NEW TEACHERS FLAT, L.N.M.U. CAMPUS, P.S. L.N.M.U. UNIVERSITY CAMPUS, DISTT. DARBHANGA. 3. PROF. INDU SHEKHAR JHA SON OF LATE DR. BALDEO JHA RESIDENT OF MOHALLA PROFESSORS COLONY, DIGHI WEST P.S. TOWN THANA, DARBHANGA, DISTRICT DARBHANGA. 4. PROF. SHANKAR JHA SON OF BAL MUKUND JHA, RESIDENT OF MOHALLA PPROFESSORS COLONY, DIGHI WEST P.S. TOWN THANE DARBHANGA DISTRICT DARBHANGA. 5. SHYAMA CHOUDHARY WIFE OF SHREE BAIKUNTH CHOUDHARY RESIDENT OF MOHALLA LAL BAGH, NEAR M.R.M. COLLELGE P.S. TOWN THANA DARBHANGA DISTRICT DARBHANGA. 6. KALIKA DUTTA JHA SON OF LATE PANDIT NIRSU JHA, RESIDENT OF MOHALLA CHHAPAKI BEHIND GAS GODOWN P.S. LAXMI SAGAR DISTRICT DARBHANGA --------------------- (PETITIONERS) Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, PATNA. 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA. 6. THE VICE CHANCELLOR, LALIT NARAYAN MITHILA UNIVERSITY, KAMESHWAR NAGAR, DARBHANGA. - 7 - 7. THE REGISTRAR, LALIT NARAYAN MITHILA UNIVERSITY, KAMESHWAR NAGAR, DARBHANGA. ---------------------(RESPONDENTS) FOR THE PETITIONERS: - Mr. TARA KANT JHA, SR. ADVOCATE & Mr. DHIRENDRA KR.JHA 2, ADVOCATE & MR. AMRESH JHA. FOR THE RESPONDENT NO. 2:- MR. LALIT KISHORE, A.A.G.-3 & MR. SATYABIR BHARTI FOR THE RESPONDENT NO. 6 & 7 (L.N.M. UNIVERSITY): - MR. P.N. SHAHI & MR. NISHANT CHOUDHARY FOR THE RESPONDENT NO.5 :- MR. RAM BALAK MAHTO & MR. SHIVENDRA KISHORE. WITH CWJC No.18677 OF 2008 1. DR.NEETA JHA, WIFE OF A.K.JHA, RESIDENT OF KHAJA SARAI LEHERIASARAI, P.S.- LAHERIASARAI, DISTRICT- DARBHANGA. 2. DR. SURENDRA MOHAN JHA, SON OF LATE BALBODH JHA, RESIDENT OF LAXMISAGAR, P.S.- LALIT NARAIN MITHILA UNIVERSITY, DISTRICT- DARBHANGA ---------------(PETITIONERS) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF LAW, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 4. LALIT NARAYAN MITHILA UNIVERSITY THROUGH THE REGISTRAR, LALIT NARAYAN MITHILA UNIVERSITY, DARBHANGA 5. THE CHANCELLOR OF UNIVERSITIES, RAJ BHAWAN, PATNA. - 8 - 6. THE VICE CHANCELLOR, LALIT NARAYAN MITHILA UNIVERSITY, DARBHANGA . 7. THE REGISTRAR, LALIT NARAYAN MITHILA UNIVERSITY, DARBHANGA ----------------------(RESPONDENTS) FOR THE PETITIONERS: - MR. RAVI VERMA & MR. MADHUREESH PRASAD FOR THE RESPONDENT NO. 1:- MR. LALIT KISHORE, A.A.G.-3 FOR THE RESPONDENT NOS. 4, 6 & 7: - MR. P.N. SHAHI & MR. NISHANT CHOUDHARY FOR THE RESPONDENT NO.5 :- MR. RAM BALAK MAHTO & MR. SHIVENDRA KISHORE. FOR THE RESPONDENT NO. 2 :- MR. ANIL KUMAR TIWARY P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad, A.C.J. & Ranjan, J. Petitioners in all these writ applications are Heads of Department in different subjects in the Post-graduate departments of the respondents Universities and their prayer is to declare Sections 3, 4 and 6 of the Bihar State University (Amendment) Act, 2008 (Bihar Act, 16 of 2008) substituting Sub-clause (ii) in Section 26 (6), inserting Clauses 3 and 4 after Section 26 (6) (ii) and adding Sub-Section (7) after Section 36 (6) of the Bihar - 9 - State Universities Act, 1976 (Bihar Act, 23 of 1976) respectively as ultra vires. Facts lie in a narrow compass. All the petitioners are presently holding the office of the Heads of Department in different subjects in the Post-graduate Departments of the respondents Universities. It is not in dispute that the post of Head of Department as such does not exist with specific scale of pay, but there are several privileges attached to it. Prior to coming into force of the provisions under challenge Head of Department, ordinarily used to be the senior most teacher in the subject. Section 26(6) of Bihar Act, 23 of 1976 before its amendment by Sections 3 and 4 of the Bihar Act 16 of 2008, read as follows:- “26.The faculties:- x x x x x 6 (i) Each Faculty shall comprise of such department of teaching as may be prescribed by the regulations. (ii) Where it is proposed to appoint any teacher to be the Head of a Department who is not the seniormost Professor, University Professor or Reader of the Department, no such appointment shall be made without the prior concurrence of the Bihar State University (Constituent colleges) Service Commission. - 10 - x x x x x Section 3 of Bihar Act 16 of 2008, had substituted Section 26 (6) (ii) of the Bihar Act 23 of 1976, which reads as follows:- 3. Substitution of Section 26 (6) (ii) of the Bihar Act 23, 1976:- In the said Act, the Section 26 (6) (ii) shall be substituted as follows:- (ii) Subject to the provisions of this Act and the provisions of the statute made thereunder the Head of the department shall be appointed by the Vice-Chancellor by observing, as far as possible, the principle of rotation. Such appointments shall be reported to the Syndicate of the University. Section 4 of Bihar Act 16 of 2008 provided for addition of new clauses (iii) and (iv) after 26 (6) (ii) of Bihar Act , 23 of 2008, same read as follows:- 4. Addition of a Section 26 (6) (iii) and 26 (6) (iv) of the Bihar Act 23, 1976:- The following new clauses (iii) and (iv) shall be added after Section 26 (6) (ii) of the Bihar State University Act, 1976 (Bihar Act 23, 1976):- (iii) The Head of the Department shall hold office for a period of three years. A person shall not ordinarily be appointed as Head of the Department for a second consecutive term. (iv) The Principal shall hold office for a maximum period of five years in one college. - 11 - By virtue of section 6 of Bihar Act 16 of 2008 a new Sub-section (7) was added after Section 36 (6) of Bihar Act 23 of 1976, hereinafter referred to as the Act same reads as follows:- (7) - Notwithstanding anything contained in the above clause, if at any time, the chancellor is satisfied that it is necessary to frame Statute of any subject of common interest after obtaining the advice of the committee of three Vice-Chancellors constituted by the Chancellor, shall send the Draft Statute to all the Vice-Chancellors for opinion, who shall send their opinion within ten days from the receipt of draft. The Chancellor shall give assent to the Statute with such amendment as he may deem necessary in the light of the opinion of the Vice-Chancellors. The Statute shall be deemed to come into force in the Universities from the date of assent; Provided that the State Government may also suggest the Chancellor to frame Statute of any subject of common interest of all the Universities. The Chancellor of the Universities in exercise of power under Section 36 (7) of the Act constituted a committee of three Vice-Chancellors, namely the Vice- Chancellor of Patna University, T. M. Bhagalpur University and M.M.H Aarbic and Persian University to advice it on the issue of appointment of Heads of Department on the principle of rotation. The Vice- - 12 - Chancellor of the Patna University was made its Convenor. The committee of three Vice-Chancellors so constituted held its deliberations on various dates and sent its report to the Chancellor. The report so received was forwarded to all the Vice-Chancellors for opinion and a meeting of all the Vice-Chancellors was held in which the draft statute submitted by the committee of three Vice-Chancellors was discussed and the Vice-Chancellors concurred with that. Ultimately Statute for the scheme of rotation of Headship was assented by Chancellor of the Universities and made applicable to all the Universities of Bihar, except Rajendra Agriculture University and Nalanda University. Statute provides as follows:- “1. Headship of the Department be rotated only amongst the first four seniormost teachers (Professors and Readers) as the case may be of the subjects concerned. For headship in P.G. Departments, first four seniormost teachers shall essentially be posted in the Department concerned. 2. Where there is no Professor, the Headship shall be rotated amongst the four seniormost Readers, or less if the number of Readers in the Department is less than four. 3. If there is neither a Professor nor a Reader in the Department, the Headship of the Department may be rotated amongst teachers of the Department. The tenure of Headship of the - 13 - Department will be for three years. If for any reason, the Vice-Chancellor feels that change in the Headship of the Department even prior to the completion of term of existing incumbent is necessary in the interest of the Department, change in the Headship of the Department be made subject to the approval of the Chancellor. 4. During the period of absence or leave of the duly appointed Head of the Department, the seniormost teacher in the department shall carry on the office of the Head of the Department provided that if the absence extends over a period of three months or more, the Vice-Chancellor may keeping in view the circumstances entrust the work to the next senior teacher in the subject. If however, the vacancy in the office of Head of the Department is to last or likely to last over a period of one year or more, the Vice- Chancellor may appoint another Head of the Department in accordance with these rules in the vacancy.” Mr. Tara Kant Jha, Senior Advocate and Mr. Madhuresh Prasad appear on behalf of the petitioners. Submissions on behalf of the petitioners have mainly been advanced by Mr. Jha. Mr. Lalit Kishore, Additional Advocate General-III, Mr. J.P. Karn Additional Advocate General No.-IX and Mr. N.K. Sinha, Additional Advocate General No.X had appeared on behalf of the State. Mr. R.B. Mahto, Senior Advocate appears on behalf of the Chancellor of the Universities, whereas the B.R.A. Bihar - 14 - University is represented by Mr. Ajay Behari Sinha. Mr. Ashok Kr. Keshri appears on behalf of T.M. Bhagalpur University, Mr. Yugal Kishore on behalf of Magadh University and Mr. P.N. Sahi on behalf of L.N. Mithila University. While assailing Section 3 of Bihar Act 16 of 2008, Mr. Jha, contends that the Vice-Chancellor has been given unguided power to appoint the Head of Department. As such according to him the appointment of Head of Department shall be at the whim and caprice of the Vice- Chancellor and conferring such an unguided power by the Legislature to the Vice-Chancellor makes the provision arbitrary and violative of Article 14 of the Constitution of India and thus fit to be struck down on that ground alone. It has been pointed out that use of the expression “as far as possible” in Section 26 (6) (ii) of the Act by Section 3 of Bihar Act, 16 of 2008 clearly makes the provision vague and discretion unlimited. While challenging the vires of Section 4 of Bihar Act, 16 of 2008, it has been pointed out that prohibiting appointment as Head of Department ordinarily for a second - 15 - consecutive terms also gives unguided power to the Vice- Chancellor. Before we examine the submission of the learned Counsel, we deem it expedient to consider the scope for judicial review for striking down an Act or a provision thereof to be ultra vires. In this connection Mr. Lalit Kishore submits that the Act made by the Legislature or the provision thereof can be declared ultra vires only when it affects one or the other provisions of the Constitution. He submits that the petitioners have not been able to demonstrate that the impugned provisions in any way offends any of the Constitutional provision. It is well settled proposition of law hallowed by time and sanctified by precedent that an Act of the Legislature or the provision thereof can be declared ultra vires only when it affects one or the other provision of the Constitution. A provision in the Act or the Act made by the Legislature, in our opinion can be held to be ultra vires only when it violates one or the other provision of the Constitution. It is also well settled that when two views are possible, one making the Act of the Legislature or the - 16 - provision thereof to be Constitutional and other Unconstitutional, the Court in exercise of its power of judicial review shall prefer the former. It is none of the concern of the Court, exercising the power of judicial review to term a Legislation to be unwise and declare the same to be ultra vires. After all an Act of the Legislature represents the will of the people and that can not be lightly interfered with. As the aforesaid proposition of law is so well settled that no detailed discussion is required. However, in deference to Mr. Lalit Kishore, we may point out that in this connection he has drawn our attention to the judgment of the Supreme Court in the case of Government of Andhra Pradesh Versus P. Laxmi Devi (Smt.) (2008) 4 SCC 720 and our attention has been drawn to paragraph 46 of the judgment, which reads as follows:- “In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246 (1) of the Constitution, or - 17 - the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto V. State of Kerala 13 SCC para 6 : AIR para 6. Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.” Reliance has also been placed on a judgment of the Supreme Court in the case of State of Bihar and Others Versus Bihar Distillery Ltd. and Others, (1997) 2 SCC 453 to contend that an enactment cannot be struck down by saying that it is arbitrary. It has been pointed out that an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with and its Constitutionality has to be tested on the anvil of the Constitutional provision and not on the ipse dixit of the petitioner that it is arbitrary. In the said case it has been held as follows:- x x x x x x - 18 - “The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application. Now, the result of the impugned judgment is that the Amending Act has become an exercise in futility – a purposeless piece of legislation. And this result has been arrived at by pointing out some drafting errors and some imperfection in the language employed. If only the High Court had looked into the minutes of the meeting dated 15-12-1989 and the two letters of the Commissioner aforementioned, it would have become clear that the Amending Act was doing no more than repeating contents of the said letters and placing the legislative imprimatur on them. As the impugned judgment itself suggests, part of the imperfection of language is perhaps attributable to translation from Hindi to English. Indeed, it is surprising that the Court has not even referred to the long preamble to the Act which clearly sets out the context and purpose of the said enactment. It was put