Patna High Court
Akhilesh vs The State Of Bihar on 31 May, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 10449 of 2020
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-Versus-
4. Patliputra University, Patna through its Registrar.
5. Vice-Chancellor, Patliputra University, Patna.
6. The Registrar, Patliputra University, Patna
7. The Principal, B.D. College, Mithapur, Patna-800001, Bihar.
8. Dr. Chandravijay Prasad Singh, Associate Professor,
Department of Zoology, B.D. College, Mithapur, Patna.
............... Respondents
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Appearance :
For the Petitioner/s : Mr. Daya Shankar Prasad, Advocate
Ms. Sugadha Prasad, Advocate
For the Respondent/s : Mr. Lalit Kishore, Advocate General
Mr. Shashi Shekhar Tiwari, A.C. to AAG
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
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(The proceedings of the Court are being conducted by Hon'ble the Chief
Justice/ Hon'ble Judges through Video Conferencing from their
residential offices/residences. Also, the Advocates and the Staffs joined
the proceedings through Video Conferencing from their
residences/offices.)
Date : 31-05-2021
Petitioner has prayed for the following relief(s):
"(i) For issuance of an appropriate order and/or
direction restraining the respondent authorities, i.e.,
Patna High Court CWJC No. 10449 of 2020 dt.31-05-2021
respondent nos. 4 to 7, from releasing payment of
arrears of salary etc. to the respondent no. 8 pursuant
to the office order No. R/PPU/494/2020 dated
07.08.2020 issued by the Registrar of Patliputra
University, till the directions made by this Hon'ble
Court in its judgment and order dated 27.02.2019 in
Civil Review No. 535 of 2018 are complied with.
(ii). To seek an appropriate order and/or direction to
the respondent authorities, i.e., respondent nos. 4 to 7
to file FIR against respondent no. 8 to recover the
salary and arrear illegally drawn by Dr. Chandra
Vijay Prasad Singh (respondent no. 8) amounting to
Rs. 1.25 crores, pursuant to the audit report 2016 of
B.D. College done by A.G. office IPAI audit team
and inquiry report para 22 of Financial adviser of
Magadh University dated 08.01.2017; Inquiry was
conducted by Financial Adviser, Magadh Univ. on
the basis of resolution taken in agenda no.16 of
Syndicate meeting dated 19.07.2017.
vis-à-vis
In such piquant situation the investigation by apex
intelligence agency of the state of Bihar, constituting
SIT with regard to ongoing racket flourishing under
the heels of concerned authorities (Patliputra
University) requires to be conducted by having full
proof probe in the whole episode as there has been
irregularities of wrongful/illegal payment amounting
to Rs. 1.25 crores is also being paid in the case of
one Rakesh Kumar Singh, Lecturer, presently posted
Patna High Court CWJC No. 10449 of 2020 dt.31-05-2021
in Arbind Mahila College, Patna.
(iii). To grant any other reliefs for which
petitioner is found entitled in the facts and
circumstances of the case."
Petitioner who claims to be a person advancing the
cause in public interest, has filed the instant petition, which in
fact is seeking enforcement of the judgment dated 27.02.2019
in Civil Review No. 535 of 2018, titled as Akhilesh Vs. The
State of Bihar & Ors.
It is not in dispute that touching the very same
issue, petitioner has initiated proceedings for contempt by
filing an application inviting attention of this Court relating to
the violation of the order by the respondent authorities.
If that were so, present petition being totally
misconceived, only merits rejection.
We only notice that prior to approaching this Court
petitioner did not bring the factum of non-compliance of the
judgment in the case of Akhilesh (supra) to the authority
concerned which it ought to have so done, more so in the light
of the decision rendered by Hon'ble the Supreme Court in D.
N. Jeevaraj Vs. Chief Secretary, Government of Karnataka
& Ors, (2016) 2 SCC 653, wherein Hon'ble the Apex Court
Patna High Court CWJC No. 10449 of 2020 dt.31-05-2021
in paragraphs 34 to 39 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, 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.
Patna High Court CWJC No. 10449 of 2020 dt.31-05-2021
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 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
Patna High Court CWJC No. 10449 of 2020 dt.31-05-2021
comply, and it must be 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."
Hence, the present petition stands dismissed with
liberty to pursue the matter in appropriate proceeding.
Interlocutory Application(s), if any, shall stand
disposed of.
(Sanjay Karol, CJ)
(S. Kumar, J)
Amrendra/PKP-
AFR/NAFR
CAV DATE
Uploading Date 01.06.2021
Transmission Date
