Case: Chetkar Jha Vs. Viswanath Prasad Verma &amp; Ors

1. This appeal, by certificate, is directed against the judgment of the High Court of Patna, dated March 8, 1965, whereby it set, aside the order of the Chancellor of the University of Patna, dated September 26, 1964, passed under Section 9 (4) of the Patna University Act III of 1962 (hereinafter referred to as the Act)2. On the retirement of one Dr. Muhar as the University Professor or Political Science, a permanent vacancy occurred in that post. The Vice-chancellor of the University, after obtaining the approval of the Chancellor for filling up the vacancy by direct recruitment, got the post advertised through the Bihar Public Service Commission. In his letter requesting the approval, the Vice-Chancellor had stated that he did not purpose to lay down any qualifications in addition to those prescribed under the relevant University Statute. The advertisement, as published by the Commission, announced the necessary qualifications as under:"First or second class Masters degree in the subject of an Indian University or an equivalent qualification of a foreign University......"A little later, the Vice-Chancellor got published through the Commission another advertisement amending the earlier advertisement. The revised advertisement stated the required qualifications as under:"First or second class Masters degree in Political Science or in an allied subject like History or Economics of an Indian University or an equivalent qualification of a foreign university......"3. As required by the Act, the State Public Service Commission had to recommended name or names of the candidates for the appointment. For this purpose two experts in the subject, Dr. M. P. Sharma of the Saugar University and Dr. Bhaskaran of the Madras University, were to assist the Commission. At the interviews of the candidates taken by the Commission on March 4, 1963, Dr, Sharma was present, but the other expert could not attend. His views, therefore, had to be communicated to the Commission by post. The Commission recommended respondent 1 herein as the candidate suitable for the post4. On May 7, 1963, the Syndicate of the University, which had by that time been constituted under the Act, held its meeting to consider the Commissions recommendation. The minutes of the meeting, as drawn up, stated the resolution said to have been passed by a majority of 9 to 8 in the following terms:"Not to proceed with the question of making this appointment."As appearing from subsequent events, it would seems that the said minutes were not correctly drafte. The Vice-Chancellor also appears to have understood that the decision taken at the said meeting was that the Commissions recommendation was not acceptable to the Syndicate and not that the Syndicate was not to proceed with the question of making the appointment. According, at this instance, the Registrar of the University, by his letter dated June 11, 1963, informed the Commission that the Syndicate had resolved not to accept its recommendation and he had, therefore, to request the Commission to reconsider its aforesaid recommendation under Section 26 (4) of the Act. On June 22, 1963, the Commission wrote back to say that it found no reason to reconsider its earlier recommendation. At the next meeting of the Syndicate held on July 3, 1963, amongst these who were present were 16 out of the 17 members who had attended the previous meeting of May 7, 1963. When the minutes of the previous meeting were placed for confirmation, it was found that the minutes as drafted, namely, "not to proceed with the question of making this appointment" did not represent the resolution which was actually passed. Those words were, therefore, scored out and instead the words "not to accept the recommendation of the Commission" were substituted so as to bring the minutes in conformity with the resolution actually passed. Thereafter, the meeting considered the Commissioners recommendation and appoint respondent 1 to the post of University Professor for Political Science by a majority of 10 to 3 with four abstentions. That the Vice-Chancellor and the Syndicate were right in their belief that the minutes as drafted did not incorporate the resolution actually passed on May 7, 1963 is indicated by the fact that in his representation to the Chancellor even the appellant himself stated that the Syndicate on May 7, 1963, had decided not to accept the Commissions recommendation. The appellant did not state in that representation that the Syndicate had resolved not to proceed with the making of the appointment. Another circumstance indicating that the said minutes were not correctly drafted was that while the item of confirmation came up before the Sundicate on July 3, 1863, which, as aforesaid, was attended by 16 out of the 17 members who had participated in the previous meeting, none of those 16 members appears to have protested against the change in the language of the minutes on the ground that the resolution then passed was that the Syndicate would not proceed with the appointment, or that the resolution actually passed was not one refusing to accept the Commissions recommendation of respondent 15. Against the resolution dated July 3, 1963, appointing respondent 1, the appellant and Dr. L. P. Sinha, the Head of the Department of Political Science, made representations to the Chancellor. Thereupon the Chancellor first called upon the Vice-Chancellor to let him have his comments on the points raised in the said representations. On July 15, 1963, the Vice-Chancellor furnished his comments. Thereafter the Chancellor issued show cause notices to the appellant and the Vice-Chancellor and after receiving their replies as also the report of the Legal Affairs Committee appointed by the Syndicate, passed the impugned order under Section 9 (4) of the Act annulling the Syndicates resolution of July 3, 1963 by which the appointment of respondent 1 was made6. Shortly stated, the grounds on which the impugned order was passed were:(1) (a) that the revised advertisement, which substituted the words "in the subject" by the words "in Political Science or any allied subject or in any allied subject like History and Economics", had the effect of amending the University Statute laying down the qualifications for the post, that such an amendment could only be made by framing a new statute under Sections 30 and 31 of the Act and not unilaterally by the Vice-Chancellor, and that, therefore, the revised advertisement was invalid;(b) that the words in the University Statute, namely, that the University Professor "shall possess a first or second class Masters degree" meant a Masters degree "in the subject", consequently, the original advertisement was in conformity with the University Statute relating to the qualifications, and therefore, the revised advertisement by substituting the words "in the subject" by the words "in Political Science or in any allied subject," etc., had the effect of amending the Statute and was unauthorised;(c) that the revised advertisement was also bad, in that, the Vice-Chancellor could not alter the original advertisement without the previous approval of the Chancellor under section 57 of the Act;(2) that Section 26 (2) of the Act contemplates that the Public Service Commission should take the assistance of two experts before making its recommendation, that the section required that the experts should be present at the time when the Commission took the interview of the candidates, that the interviews, the absence one of the two experts, were not valid, that,therefore, a recommendation based on such invalid interviews and the following such recommendation the appointment made by the Syndicate were both invalid;(3) that on a recommendation made by the Commission, the Syndicate had three options, (a) to accept it and proceed to make the appointment, (b) to reject it and refer the matter to the Commission for recommendation and (c) to give up the idea of making the appointment at all; that it was only in the case of (b) that the matter could be referred back to the Commission under Section 26 (4). The Vice-Chancellors action in referring the matter for reconsideration by the Commission was without the authority of the Sydicate and was not warranted under Section 26 (4);(4) that under a prior resolution of the Syndicate dated November13, 1952, a decision taken at its meeting could not be revised for a period of six months therefrom. Consequently, the decision taken by the Syndicate at its meeting on May 7, 1963 not to proceed with the appointment could not be revised by the Syndicate before the expiry of six months, and that, therefore, the Syndicates resolution of July 3, 1963 was invalid7. In the writ petition filed by respondent 1 against the impugned order of the Chancellor, the High Court quashed the said order and issued a certiorari on the ground that the order in question was passed on an erroneous interpretation of the revenant provisions of the Act and the University Statute.

Reasoning:
The Chancellor, therefore, could not, on a wrong interpretation of the Statute, hold that the revised advertisement was a modification of that Statute, that it was, therefore, invalid, and that, therefore, he had the jurisdiction to nullify the Syndicates resolution of July 3, 1963 under Section 9 (4) of the Act. Section 9 (4) authorises the Chancellor to nullify the Syndicates resolution provided only if the Syndicates proceedings were not in conformity with the Act or the StatuteThe Chancellor, therefore, was in error in holding that the revised advertisement required his approval and that in the absence of such approval it was invalid or that the Commissions recommendation and the appointment by the Syndicate based thereon were bad in law on that account13. The second ground on which the Chancellor nullified the appointment was, in our view, equally unsustainable. Under section 26 (2), the Commission had to have the assistance of two experts in the subject for which an appointment was to be made. Clause (iii) of that sub-section provides that such experts "shall be associated" with the Commission, whose duty it shall be to give expert advice to the Commission but who shall have no right to vote. The Chancellor, in our opinion, read more in this sub-section than what it contains or requires. The sub-section merely requires that the two experts shall be "associated" with the Commission before it made its recommendation.It does not say that such association can only be their presence at the time of the interviews. If that were so, it was easy for the Legislature to provide that the expert or experts shall remain present at the time of the interviews. The benefit of experts advice can be had both by the experts remaining present at the time of the interviews and also by their advice communicated to the Commission by post or otherwise.There is nothing in cl. (iii) suggesting that only the first method was the one which was intended.On the contrary, the deliberate use of the word "associated" indicates that the Legislature thought that such advice could be made available by both the methods.The Legislature appears to have left the method of obtaining such advice to the Commission for it is possible that by making their presence at the interviews compulsory, the Commission might in conceivable cases lose the benefit of really competent experts residing at distant places, not to say of those outside the country.The denial of the right to vote to the experts has nothing to do with their having to be present or not.What is sought by the clause is that even if the experts happen to be present they cannot affect the decision of the Commission which is the exclusive decision of that body. The Chancellor clearly misinterpreted cl. (iii) of Section 26 (2) when he thought that the denial of the right to vote to the experts therein indicated that they were required to be present at the time of the interviews. Admittedly, the Commission, as required by cl. (iii), had the benefit of the advice of both the experts. The expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidThe expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidAs already stated, this position is borne out by the fact that thoughthere were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested to the alteration in the minutes nor did any one of them say that the decision taken on May 7, 1963 was not one of refusal to accept the Commissions recommendation. Therefore, if the Syndicates decision was not to accept the Commissions recommendation it had to refer under section 26 (4) the matter back to the Commission, the words of sub-s. (4) of section 26 in that regard being mandatory.It seems that the Vice-Chancellor had also understood that the Syndicates decision of May 7, 1963 was not to accept the Commissions recommendation and it was because he had so understood that he got the Registrar on June 11, 1963 to refer the matter back to the CommissionAccordingly, when minutes of a meeting are placed before the next meeting the only thing that can be done is to see whether the decision taken at earlier meeting had been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minutes and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting.In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have properly held and convened and all proceedings had there to have been duly had and all appointments of directors, mangers or liquidates are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd ED., Vol. 6, P. 318).This is the position when minutes have been signed by the Chairman. After such signature they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. (cf. Talbot, W. F., Company Meetings, (1951 Ed.), p. 82).This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any pretest against the alteration. The decision relied on by Mr. Jha inIn re, Rotherham Alum and Chemical Company, (1883) 25 Ch D 103is altogether on a different question and cannot be of any assistance16. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under section 26 (4) that the matter should be sent back to the Commission for reconsideration, his action in asking the Commission to reconsider clearly fell under S. 26 (4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to following it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under section 26 (4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a rescission of the earlier decision or that such revision or rescission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provision of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9 (4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963.