Patna High Court

Rohit Kumar vs The Honble Chancellor on 5 July, 2021

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.2078 of 2021
     ======================================================

Rohit Kumar, Son of Santosh Kumar Suman, Resident of Dhabahi, P.S.- Laukahi, District- Madhubani.

... ... Petitioner/s Versus

1. The Honble Chancellor, the Universities of Bihar, Raj Bhawan, Patna, Bihar.

2. The Principal Secretary to Hon'ble Chancellor, Universities of Bihar, Raj Bhawan, Patna.

3. The Additional Secretary to Hon'ble Chancellor, Universities of Bihar, Raj Bhawan, Patna.

4. The State of Bihar through the Principal Secretary, Department of Education, Government of Bihar.

5. The Principal Secretary, Department of Education, Government of Bihar.

6. The Vice Chancellor, Lalit Narayan Mithila University, Darbhanga.

7. The Vice Chancellor, Magadh University, Bodh Gaya.

8. The Vice Chancellor, Patliputra University, Patna.

9. The Vice Chancellor, Purnea University, Purnea.

10. The Vice Chancellor, Nalanda Open University, Patna.

11. The Vice Chancellor, K.S.D. Sanskrit University, Darbhanga.

12. Dr. Mustaque Ahmad, Presently posted as Registrar, Lalit Narayan Mithila University, Darbhanga.

13. Dr. Vijay Kumar, Presently posted as Registrar, Magadh University, Bodh Gaya.

14. Dr. Jitendra Kumar, Presently posted as Registrar, Patliputra University, Patna.

15. Dr. Ravindra Nath Ojha, Presently posted as Registrar, Purnea University, Purnea.

16. Dr. Pushpendra Kumar Verma, Presently posted as Registrar, Nalanda Open University, Patna.

17. Dr. Shiva Ranjan Chaturvedi, Presently posted as Registrar, K.S.D. Sanskrit University, Darbhanga.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. P.K.Shahi, Sr. Advocate Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

Mr.Satyam Shivam Sundaram, Advocate For the Respondent/s : Mr. Ajay Kumar Rastogi, AAG 10 Dr. Anand Kumar, Advocate Mr. Ritesh Kumar, Advocate Mr. Nadeem Seraj, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 05-07-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

"I. For setting aside the appointment of private respondents i.e. Respondent No. 12 to 17 who were appointed as Registrar by the Hon'le Chancellor in the concerned University of the State of Bihar.

II. For holding the appointment of Respondent No. 12 to 17 on the post of Registrar of the concerned University of the State of Bihar as void ab initio.

III. For an appropriate direction to undertake a fresh exercise of selection process for appointment of Registrar in the concerned Universities in terms of the existing statutory provisions, made in this regard.

IV. For any other relief/reliefs to which the petitioner is found entitled to."

After the matter was heard for some time, Shri P.K.

Shahi, learned senior counsel for the petitioner, under

instructions, states that petitioner shall be content if petitioner is

permitted to approach the authority concerned by filing a

representation highlighting the issue, subject matter of the Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

present petition.

Permission granted.

Learned counsel for the respondents states that if such

a representation is filed by the petitioner, the authority concerned

shall consider and dispose it of expeditiously and preferably

within a period of three months from the date of its filing along

with a copy of this order.

Statement accepted and taken on record.

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v.

Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a well- recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice.

Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

As such, petition stands disposed of in the following

terms:-

(a) Petitioner, as prayed for, shall approach the

authority concerned within a period of four weeks from

today by filing a representation for redressal of the

grievance(s);

(b) The authority concerned shall consider and

dispose it of expeditiously by a reasoned and speaking order

preferably within a period of three months from the date of

its filing along with a copy of this order;

(c) Needless to add, while considering such

representation, principles of natural justice shall be

followed and due opportunity of hearing afforded to the

parties;

(d) Equally, liberty is reserved to the petitioner to

take recourse to such alternative remedies as are otherwise Patna High Court CWJC No.2078 of 2021 dt.05-07-2021

available in accordance with law;

(e) We are hopeful that as and when petitioner takes

recourse to such remedies, as are otherwise available in law,

before the appropriate forum, the same shall be dealt with,

in accordance with law and with reasonable dispatch;

(f) Liberty reserved to the petitioner to approach the

Court, if the need so arises on the same and subsequent

cause of action;

(g) We have not expressed any opinion on merits.

All issues are left open;

(h) The proceedings, during the time of current

Pandemic- Covid-19 shall be conducted through digital

mode, unless the parties otherwise mutually agree to meet

in person i.e. physical mode;