- (1.) Leave granted in the special leave petitions.
(2.) Dr. Ram Tawakya Singh, who had filed writ petition before the Patna High Court for quashing the appointments of Vice-Chancellors and Pro Vice-Chancellors of different Universities in the State of Bihar, has questioned the directions contained in order dated 7.12.2012 passed by the Division Bench of that Court. The State of Bihar and two others have also filed an appeal against the order of the High Court and simultaneously questioned the notifications issued by the Chancellor for appointment of Vice-Chancellors and Pro Vice-Chancellors. Dr. Ram Tawakya Singh has filed Writ Petition No.158/2013 for quashing the appointments of the private respondents as Vice-Chancellors and Pro Vice-Chancellors. The background facts
(3.) 1 By Notifications dated 9.4.2010 and 15.4.2010, the Chancellor appointed Dr. Arvind Kumar and Dr. Subhash Prasad Sinha as Vice-Chancellor of Magadh and Veer Kunwar Singh Universities, respectively. The same were challenged by Dr. Pramod Kumar Singh and Dr. Ram Tawakya Singh in CWJC No.8141/2010 on the ground that the Chancellor had not consulted the State Government as per the requirement of Section 10(2) of the Bihar State Universities Act, 1976 (for short, 'the BSU Act'). The learned Single Judge of the Patna High Court allowed the writ petition and quashed the notifications issued by the Chancellor. He referred to the affidavits filed by the parties, the documents produced by them as also the documents summoned by the Court and observed: "23. From the various averments as well as the relevant extract of the notings of the file annexed with the supplementary counter affidavit filed on behalf of the State there is sufficiency of material to show that the stand of the State is un-ambiguous that there was no consultation of any kind on the issue of appointment of Vice Chancellors including the two Vice Chancellors whose appointments are under challenge in the present writ application. The Court opines that if there was any consultation, there would not have been occasion for the Minister or the State to take such clear and categorical stand on the issue of consultation and to annex all those notings of the file to show that there was actually no consultation, so far as the State was concerned. 24. Now, let us take notice of the stand taken by the office of the Chancellor on whose behalf counter affidavit dated 23.03.2011 was initially filed. This counter affidavit has been sworn by one Kumar Braj Kishore Sahani, who is stated to be the Joint Secretary in the Governor's Secretariat and he has stated that he was well acquainted with the facts and circumstances of the case. The affidavit also states that he has been authorized to swear affidavit in this case on behalf of respondent no. 2 i.e. Chancellor of Universities, Raj Bhawan, Patna. What is relevant in this affidavit is paragraph 5 which is being reproduced for ready reference :- "That the Vice Chancellor of V.K.S. University, Ara and the Vice Chancellor of Magadh University, Bodh Gaya have been appointed by the Hon?ble Chancellor in consultation with the State Government on 29th March, 2010, and Notifications of appointments of Vice Chancellors as per provisions of Section 10(2) of the B.S.U. Act, 1976 were issued from the Chancellor's Secretariat on 9.4.2010 (Ann. 7 of the I.A.) and on 15.4.2010 (Ann. 8 of the I.A.). It is wrong to allege that there had been no consultation with the State Government." 25. A stand has been taken on behalf of the Chancellor that since the notification itself talks in terms of consultation with the State Government on 29.03.2010, then it is a complete answer to the controversy which have been created in the matter of appointment of two Vice Chancellors because nothing more is required to be seen beyond the notification. 26. Court was not satisfied with such a sweeping stand taken on behalf of the Chancellor, in view of other over-whelming evidence which have been brought on record not only by the petitioners but also by the State Government. 27. In this background, the Court directed production of the file relating to consultation which supposedly took place with the State Government on 29.03.2010. 28. Learned Senior Counsel representing the Chancellor, namely, Mr. Y. V. Giri tendered a file for perusal by the Court to show that there was consultation with the then H. R.D. Minister on the issue, based on which the Chancellor made the appointments of the two Vice Chancellors. The file in question is file No. ACT - 01/10 which has an endorsement "Bihar State Universities Tribunal Act." Reliance was placed by the learned Senior Counsel representing the Chancellor to pages 51, 52 and 53 of the said file. The Court observed that since the file in question did not relate to appointment of Vice Chancellors but with regard to constitution of a University Tribunal and the objections of the Governor to ratification of the said bill. The relevant pages, namely, page nos. 51, 52 and 53 of the said file was ordered to be brought on record by way of an affidavit so that all the parties to the dispute including the Court had the benefit of looking into the same closely on the question of consultation with the State. 29. A counter affidavit again on behalf of respondent no. 2 i.e. the Chancellor duly sworn by Kumar Brij Kishore Sahani, Joint Secretary in the Governor's Secretariat dated 18.04.2011 was filed annexing the said pages as Annexure R-2/1. This is supposed to be the portion of the file in which the so called consultation for appointment of Vice Chancellors took place or its evidence is reflected though the main minutes in the file deals with constitution of Bihar Universities Tribunal. 30. Since the noting on the question of consultation is in the purported hand of the Chancellor which speaks for itself, therefore, the Court feels that all the pages itself should be reproduced as part of this order. Annexure- R-2/1, therefore, is duly scanned and forms part of this order. The note of the Chancellor is not fully legible. 32. The Court has meticulously gone through the said note of the Chancellor which has been purportedly made in his own pen. The first thing which the Court notices is that the note does not have any initial of the Minister and it has been incorporated in a file not even related to the question of appointment of Vice Chancellors to the Universities of Bihar muchless the Universities in question. There is obvious evidence that the visit of the Minister to the Raj Bhawan and the discussion he had with the Chancellor, primarily, related to the objections the Governor had in giving his assent to the Universities Tribunal Bill, which was pending approval of His Excellency for many a months, if not more than a year. Another significant aspect which emerges from the noting is that no separate Minutes came to be drawn up on a separate file or piece of paper as if Chancellor's Secretariat lacks stationery or Secretarial assistance. It was not even sent to the Minister for his signature or acknowledgment of what was recorded. It also shows that even a file was not opened on the issue of appointment to such important posts of Vice Chancellors. What was the compelling circumstance under which such a noting was done remains a mystery wrapped in an enigma. A reading of the said note, even if it is accepted as evidence of the so called consultation, it does not show that the two names were even mentioned for appointment as Vice Chancellors to the two Universities, namely, Magadh University or Veer Kunwar Singh University, in the so called discussion. There is generality of discussion that vacancies are existing in the Universities and there was some urgency of filling up those vacancies on due priority. But that by itself did not mean by giving a go bye to the law. 33. It is also not further understood or explained as to why the so called "Minutes", if at all, could not be drawn up subsequently and referred to the concerned Minister of H.R.D. for obtaining his signature as a proof of his agreeing of what was recorded therein. The Court is not aware of any Minutes being drawn up unilaterally without any endorsement or acknowledgment thereto of the parties to such consultation or deliberations. It is also not understood as to what was the occasion for the Chancellor to make such endorsement on a file and on a Minute which dealt through and through with regard to objections His Excellency had to give assent to a Bill relating to constitution of a Tribunal for the Universities. 34. Court has serious reservation whether the above exercise amounts to consultation on behalf of the State, based on which the Chancellor could go ahead and make unilateral appointments of Vice Chancellors, without even basic materials or subject of consultation existing before the two authorities. How did the Chancellor zero down on these two names still stands a mystery and unexplained. 35. No further comments on the issue as well as the so called material of consultation is required to be offered by the Court. Inferences are obvious. The Court can now well appreciate the background to the H.R.D. Minister?s notings and letters denying any consultation on the issue of appointment of Vice Chancellors. Though he does accept that his visit to Raj Bhawan related to discussion on the Tribunal Bill and that alone, the stand of the Minister stands corroborated and seems more closer to the actual state of affairs, as noting by the Chancellor is in the file relating to the University Tribunal Bill and that too on the page of the Minutes dealing with the Tribunal Bill. 36. The Court, therefore, has serious reservation or doubt whether this evidence or proof can be taken as the ultimate answer or material showing consultation between the State and the Chancellor, meeting the requirement of consultation undern section 10(2) of the Act, vesting him with the authority to make appointments at his level on the post of Vice Chancellors to the two Universities." 3.2 The learned Single Judge then adverted to the judgments of this Court in Union of India v. Sankat Chand Himatlal Sheth and another, 1977 AIR(SC) 2328, S.P. Gupta v. Union of India, 1982 AIR(SC) 149, Gauhati High Court and another v. Kuladhar Phukan, 2002 4 SCC 524 and held: "51. There could be an arguable case that even the Chancellor has some flexibility with regard to suggesting names which may come within his knowledge or domain but those details and opinion must be shared and deliberated between the State Government and the Chancellor and some kind of opinion reached, before it can be said that there was consultation with regard to the persons who are fit or otherwise deserving to be appointed as Vice Chancellors. Obviously, the manner and the way appointments to the two posts have been made, in the opinion of this Court, does not satisfy the requirement of consultation and there is much a-miss with regard to the way the whole exercise has been carried out at the office of the Chancellor and in the manner in which Chancellor has gone about making appointments to the post. 52. Consultation with the State is a must. Consultation with the State must be effective. Consultation also means placing of materials between the consulting and the consulted party. There has to be proper deliberations by producing all materials duly recorded to show that such exercise was carried out and there was application of mind with regard to all those persons who may be otherwise eligible. If all these elements are missing and there is no evidence in this regard in existence, then the Court will have no hesitation in recording that any appointment made, may be at the behest or at the level of the Chancellor, would be in clear breach of the requirements of Section 10(2) of the Act. There is no absolute power of the Chancellor to make appointment on the post of Vice Chancellor or Pro Vice Chancellor at his level without the consultation with the State within the meaning of law enunciated by Courts and as mandated and that alone would satisfy the requirement of consultation under section 10(2) of the Act. 53. In this case there are predominant materials to show that there was never any consultation with any State authorities and the Chancellor on the question of appointment of two Vice Chancellors. If the two Vice Chancellors came to be appointed in breach of Section 10(2) of the Act, then the appointment will have to be interfered with and the issue cannot be allowed to rest." 3.3 Letters Patent Appeal Nos. 822 and 824 of 2011 filed by Dr.Subhash Prasad Sinha and Dr. Arvind Kumar, respectively were dismissed by the Division Bench of the High Court vide judgment dated 8.9.2011, paragraphs 18 and 19 of which are extracted below: "18 The word "shall" is only indicative. The need of consultation is between two constitutional authorities, one is the Chancellor whose rule has been noticed above and the other is the State Government which has a high stake in ensuring that standard of higher education in the State is maintained and the hundreds of crores of rupees allocated to the Universities every year are well utilized by appointment of suitable persons who are not only reputed for their scholarship and academic interest but can also be good administrators, capable of safeguarding the finances and interests of the Universities. The Governor as Chancellor does not have the elaborate requisite machinery to enable him to form the appropriate opinion for appointing persons as Vice Chancellors and this is adequately taken care of by providing consultation with the State Government. The nature of duty of both the Constitutional authorities in this context is to promote public interest and interest of higher education by selecting and appointing best persons available out of eligible candidates. To achieve this object the stipulated consultation has to be effective. It is not only desirable but clearly a must, before selection and appointment. 19. Though the judgment of the Supreme Court in the case of Indian Administrative Service (SCS) Association v. Union of India, 1993 Supp1 SCC 730 has been cited on behalf of the appellants, a careful perusal shows that the settled principles as to what shall constitute consultation and when it is mandatory do not support the case of the appellants. The judgment approves that prior consultation is mandatory and moreso if its violation would affect fundamental rights or fair procedure. In the present case, the dispute whether opinion or advice of the State Government will bind the Chancellor or not is not at all in issue. The controversy is in respect of earlier stage as to whether the State Government should have adequate opportunity to give its opinion or advice in respect of the appointees. The procedure and details as to who shall be taken into consideration on account of eligibility and who shall be selected out of eligible persons has rightly not been prescribed by the Act because the appointment and consultation process has been left in the hand of high Constitutional functionaries. Nonetheless, like any selection process it must be fair. Consultation with the State Government has been introduced by the Legislature with the obvious aim of making the selection procedure wider in ambit, deeper in contents, transparent and fair. The State Government has the means to render intensive and extensive information and input in course of consultation. The consultation in such important matter and at such high level needs to be effective so that after the Chancellor has made tentative choice on considering the entire information and input given by the State Government, the latter may provide further relevant information, if available, in respect of tentatively selected persons, in order to avoid the risk of Universities being placed in the hands of wrong persons or unsuitable persons." 3.4 The special leave petitions filed by the two appointees, which were registered as SLP (C) Nos. 27644/2011 and 27725/2011, were dismissed by this Court on 29.9.2011. 3.5 During the pendency of the letters patent appeals before the High Court, the Chancellor issued Notifications dated 1.8.2011 and 3.8.2011 for appointment of as many as ten persons as Vice-Chancellors and Pro Vice-Chancellors of different Universities of the State. The details of these appointments are as under: JUDGEMENT_595_TLPRE0_2013_1.html;