Case: Bisheshwar Dayal Sinha Vs. University Of Bihar &amp; O.Rs

2. The Rajendra College is an educational institution which has been admitted by the Bihar University as a College, as defined in Section 2(d) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act (Bihar Act XIV of 1960) (hereinafter called the Act) read with Article 1 of Chapter XII of the Statutes framed under the Act. The said college is a public institution founded by public charities and is conducted under the management of a Governing Body. The first Governing Body of the College was formed by the citizens of Chapra who had assembled for that purpose in a meeting on the 31st July, 1938. The Governing Body thus constituted consisted of 18 members; if continued to function until the 24th July, 1940, with addition in the personnel made from time to time by co-option. Later, in 1941, the Governing Body adopted a constitution framed by the Principal of the College at its request and that constitution governed the administration of the college. In due course, some further amendments were made in 1950. After the passing of the University of Bihar Act, 1951 (Bihar Act XXVII of 1951) and the framing of Chapter XIII of the Statutes under the said Act, the University suggested to the Governing Body to bring its constitution in line with the provisions of Chapter XIII of the said Statutes. Accordingly, modifications were made in the constitution, and the constitution thus modified and amended from time to time was in operation at the relevant time.3. The appellant had been elected Secretary to the Governing Body on the 3rd of June, 1961, and under the relevant rules of the constitution, his term of office was to be three academic sessions, and as such, it was to last until 31st May, 1964. Meanwhile, by the impugned order passed by the Vice-Chancellor on the 13th January, 1963, the appellant has been removed from his position as Secretary and another person has been appointed in his place. That is the reason why the appellant moved the Patna High Court for appropriate writ or order quashing the impugned order and the relevant statutes on which it purports to be based. To his writ petition, the appellant impleaded 18 persons amongst them being respondent No. 1, the University of Bihar, respondent No. 2 Mr. Srivastava, Vice-Chancellor of the University of Bihar, and respondent No. 3, the Chancellor of the University of Bihar.

Court's reasoning:
The question as to whether the power to make adaptations or modifications justifies the impugned order presents no difficulty, because we have come to the conclusion that the impugned statute 2(4) is itself invalid, and so, the impugned order must be struck down on that ground. If the statute on the authority of which the impugned order has been passed is itself invalid, the power to make adaptations and modifications cannot help to sustain the validity of the impugned order. The power to make adaptations and modifications conferred on the Vice-Chancellor by S. 60 (ii) of the Act must be read in the light of the substantive provisions contained in S. 30(d) in regard to affiliated colleges, and they cannot obviously justify the impugned order if the impugned Statute 2 (4) itself is invalid. This position cannot be disputed, and so, we go back to the question as to whether the impugned Statute 2 (4) is valid.14. The decision of this question presents also no difficulty, because on the face of it, the impugned statute is inconsistent with the relevant provision of the Act. It will be recalled that the Act proceeds on a broad and well-recognised distinction between two categories of collegiate institution, one instituted by the University and the other admitted to the University or affiliated to it. Section 4 (10) of the Act is based on this distinction, and S. 30(d) and (e) also proceed on the same distinction. Where the University, instituted collegiate institutions, naturally the task of instituting is the task of the University, and so, the management and the maintenance of the said institutions is also the Universitys responsibility. The position is substantially different where collegiate institutions are started by other autonomous bodies and they seek admission or affiliation to the University. In regard to this class of collegiate institutions, their institution as well as their management and maintenance is not the direct concern of the University; that is the concern of the autonomous educational bodies which have sponsored them and which have undertaken the task of instituting, managing and maintaining them. It is, of course, true that when admitting or affiliating such institutions, the University can impose reasonable and legitimate conditions subject to the provisions of the Act, and it follows that on the failure of such colleges either to conform to those conditions or on their committing breach of any of those conditions, it would be competent to the University under its relevant powers to disaffiliate them and deny them the status of admitted colleges; but this power is very different from the power to constitute the Governing Bodies of such autonomous educational bodies. The University may insist upon the observance of conditions in respect of the composition of the Governing Bodies, but it cannot direct the Composition of the Governing Bodies itself; the two powers are distinct and separate. Whereas in the case of institutions started by the University, the University has to decide who would constitute the Governing Bodies, in the case of affiliated institutions, the University can only lay down conditions and regulations which must be satisfied before the Governing Bodies are constituted; who should Constitute the Governing Bodies is a matter for the autonomous educational bodies, which sponsor the collegiate institutions to decide; how they should be formed, on what principle, and on what basis, are matters which may well form the subject matter of conditions imposed by the University while admitting such colleges or affiliating them. This position, in our opinion, is plain and has to be borne in mind in considering the validity of the impugned statute 2 (4).15. Now what does the said statute purport to do? It purports to authorise the Vice-Chancellor to amend or revise the constitution wherever it is necessary. It would be noticed that this power is inconsistent with S. 30 (d) of the Act. It is a power which can be exercised under S. 30 (c), but that would have relation only to collegiate institutions started by the University itself. It can have no relevance to affiliated colleges. If statute 2(4) had merely authorised the Vice-Chancellor to lay down conditions as to how the Governing Bodies of the affiliated colleges should be constituted it would have been another matter. The University can effectively bring about a change in the composition of the Governing Bodies of affiliated colleges if it is thought necessary and desirable to do so under its relevant powers, but that must inevitably take the form of prescribing general conditions in that behalf and leaving it to the affiliated colleges to comply with the said conditions. Non-compliance with the said conditions may entail the liability to be disaffiliated; but that is very different from giving the power to the Vice-Chancellor of the University to make the necessary changes in the Governing Bodies of the affiliated colleges itself. It is plain, as we have just seen, that this power is inconsistent with S. 30(d) of the Act and as such, is invalid.16. How this power has been worked out is evident from the impugned order itself. This order purports to direct the reconstitution of the Governing Body of the Rajendra College with immediate effect in order to bring it in conformity with the provisions of the new statutes. Then, it virtually purports to nominate some members of the Governing Body. It provides that two staff representatives would continue on the Governing Body as at present. Then, it adds five persons to the said Governing Body. Then, it purports to make a change in regard to the three seats reserved for the Founders, Donors, Benefactors or Sponsors, and nominates three persons in that behalf. It also directs that the co-opted member Mr. Bishwanath Prasad Mishra will also continue till the fresh co-option is held; then it nominates Mr. Ganga Prasad Sinha, Advocate, Chapra, as the Secretary of the Governing Body of the College with immediate effect. Thus, it is plain that the power conferred on the Vice-Chancellor by statute 2(4) has been exercised by him by not only directing how the Governing Body should be constituted on principle, but by nominating different persons on the Governing Body. The basis on which a Governing Body should be constituted is very different from nominating several persons on the said Governing Body. It is the latter course which has been adopted by the Vice-Chancellor and which is inconsistent with S. 30(d) of the Act. At this stage, it is necessary to add that the course adopted by the Vice - Chancellor in the present case is also inconsistent with Statute 2 (4) itself. The said statute merely authorises the Vice-Chancellor to amend or revise the constitution of the Governing Bodies of admitted colleges whenever necessary, and as we have already held, even the conferment of this power is ultra vires the statute. But what the Vice-Chancellor has done has gone beyond even Statute 2(4) - he has not only amended or revised the constitution of the Governing Body, but has also nominated certain persons on it. Thus, this action of the Vice-Chancellor suffers from the double infirmity that it is inconsistent even with Statute 2 (4) and is purported to have been issued under Statute 2 (4) which itself is invalid. Unfortunately, the High Court appears to have failed to take into account the basic difference between the two categories of collegiate institutions, and powers conferred on the University severally in respect of them. The view taken by the High Court about the validity of statute 2 (4) completely obliterates the difference between the two kinds of collegiate institutions and treats all collegiate institutions, whether instituted by the University, or affiliated to it, as falling completely under the management of the University itself. We accordingly hold that statute 2(4) is invalid, and the impugned order passed under it is, therefore, invalid and inoperative.17. Then, as to statute 3 (1), the Syndicate may have the power to cancel its grant-in-aid to the college concerned, but in so far as 3(1) (a) seems to contemplate that if the affiliated college refuses to submit to the order passed by the Syndicate dissolving and ordering reconstitution of its Governing Body the penalty of the cancellation of grant-in-aid may follow, it must be held that that part of statute 3 (1) is invalid. It would be open to the University to direct that the composition of the Governing Body should conform to conditions which may be changed by the University under its relevant powers and if the said conditions are not duly complied with by the affiliated college or its Governing Body, suitable and permissible action may be taken; but in so far as statute 3 (1) proceeds on the basis that the Syndicate can itself dissolve the Governing Body and order its reconstitution, it suffers from the same infirmity as statute 2(4). That is why we hold that statute 3 (1) in so far as it gives power to the Syndicate to dissole and reconstitute the Governing Body and enables it to cancel its grant-in-aid to an affiliated college under 3(1) (a) for the reason that the direction issued by the Syndicate in that behalf has not been complied with, isare, however, prepared to assume that the Vice-Chancellor felt compelled to issue the order and that he acted bona fide in the interests of the students studying in the Rajendra College. It is quite possible that the affairs of an affiliated college may be mismanaged and a situation may arise where either the University or the Vice-Chancellor may feel justified in taking drastic action to save the situation, because, after all, in dealing with the problem of efficient management of affiliated colleges, the consideration of paramount importance must always be the interests of the students studying in such colleges; and so, theoretically, there can be no objection to the University being empowered to take suitable and reasonable action to meet emergencies arising from mismanagement of affiliated colleges which expose the students to the grave risk of interruption in their smooth academic work. But the question which we have to decide in the present appeal is not whether the University or the Vice-Chancellor should not have such power; the question is whether such a power can be claimed by the Statute under the provisions of the Act, and that question in our opinion, admits of only one answer under the Act as it now stands. The Legislature may consider whether any suitable amendment should be made in that behalf. That, however, is irrelevant to the point with which we arevalidity of the Statutes was challenged by the appellant on the additional ground that when they were made by the Vice-Chancellor, the power conferred on him by S. 35 of Act II of 1962 had come to an end. The said Section empowered the Vice-Chancellor to exercise the powers of the appropriate Bodies of the University for a period not exceeding nine months, or until the respective Bodies were reconstituted. The appellants case before the High Court was that the Senate had been reconstituted in the first week of November, 1962 and in fact, notices had been issued to call for a meeting of the said Senate on the 30th November. That being so, with the reconstitution of the Senate the statutory power of the Vice-Chancellar under S. 35 came to an end, and so, the Statutes which were promulgated on the 18th November, 1962 were invalid. The High Court has rejected this contention mainly on the ground that the Senate was not duly constituted even on the 30th November, 1962 "inasmuch as the application of Mr. Baleshwar Prasad Chaudhury filed in the High Court was still pending and the question had still to be decided as to whether he was entitled to be member of the Senate as being a donor of the Dalsingsarai College." The High Court thought that since an order of stay had been passed by it, there could be no meeting of the Senate even on the 30th November, 1962, and so, after the address of the Chancellor, the meeting had to be adjourned. It appears that the stay order passed by the High Court was in relation to the direction issued by the Chancellor prohibiting Baleshwar Prasad Choudhury from acting as a member of the Senate and that strictly may not have a material bearing on the question as to whether the Senate had been properly constituted before the 18th November; 1962 or not. The appellants case is that since a meeting of the new Senate had been called for the 30th November by a notice issued in that behalf on the 8th November, it postulates that the Senate had been duly constituted before the 8th of November and for the proper reconstitution of the Senate, it was not necessary that it should actually hold its first meeting. On the other hand, the learned Attorney-General contends that the material adduced on the record of these proceedings is wholly insufficient to justify the finding that the Senate had been duly constituted before the 18th November, 1962.We are satisfied that the contention raised by the Attorney-General is sound. On the available material, we see no evidence on which it could be held that a Senate had been reconstituted on any particular date, and so, we do not propose to record any conclusion on this part of the appellants case. All that we would like to add is that the finding of the High Court on this point should not be taken to be binding, and if in future this question arises, it may have to be decided on the merits afresh.