Gautam Buddha Para Medical ... vs Babasaheb Bhim Rao Ambedkar Bihar ...
2023 Latest Caselaw 3414 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.14368 of 2018
     ======================================================

1. Dhirendra Kumar Son of Shivjee Singh, resident of Village- Narayanpur, P.S.- Dumra, District- Sitamarhi.

2. Ankita Kumari, D/o Laliteshwar Kumar, resident of Village- Talkhapur, P.S. Dumra, District- Sitamarhi.

3. Murli Kumar, Son of Brahmdeo Prasad Vimal, Resident of Village- Sahsoul, P.S. B.Kothi, District- Purnea.

4. Vikash Kumar, Son of Satya Narayan Shahi, Resident of Village- Dumra, P.S.- Dumra, District- Sitamarhi.

5. Sanjay Kumar, Son of Shiv Narayan Prasad, resident of Village- Laxmipur, P.S.- Laxmipur, District- Jamui.

6. Kaushal Kumar, Son of Madhusudan Prasad Singh, Resident of Village-

Narayanpur, P.S.- Dumra, District- Sitamarhi.

7. Samir Kumar Singh, Son of Tribhuwan Singh, resident of Village- Binodpur, P.S.- Begusarai, District- Begusarai.

8. Md. Sadab Ali, Son of Md. Ali, Resident of Village- Dasai, P.S.- Runni Saidpur, District- Sitamarhi.

9. Saheb Singh, Son of Chandrika Singh, Resident of Village- Marar Anhari Ujjari Barar, P.S.- Riga, District- Sitamarhi.

10. Abhishek Kumar, Son of Sanjay Kumar Jha, Resident of Village Near Telephone Exchange, Rajopatti, Rampatti, P.S.- Sitamarhi, District- Sitamarhi.

11. Satyendra Prasad Sinha, Son of Gaurishankar Prasad Sinha, Resident of Village- Shakti Sadan, Balhapatti, Kailashpuri, P.S.- Dumra, District- Sitamarhi.

12. Dilip Kumar, Son of Shambhu Narayan Singh, Resident of Village-

Rasalpur, Nanakpur Road, P.S.- Bajpatti, District- Sitamarhi.

13. Rima Kumari, D/o Bindeshwar Prasad, resident of Village- Chakmahila, P.S.- Sitamarhi, District- Sitamarhi.

14. Md. Mashud Reza, Son of Md. Massom Alam, Resident of Village- Gorar, P.S.- Bajpatti, District- Sitamarhi.

15. Abhinandan Kumar, Son of Naval Kishore Singh, Resident of Village- Raudi Pokhar, P.S. Lalganj, District- Vaishali.

16. Sanjeev Kumar Pandey, Son of Umesh Pandey, Resident of Village-

Azamgarh Nagwan Tola, Jagdishpur, P.S.- Dumra, District- Sitamarhi.

17. Ashutosh Chandan, Son of Kaushal Kishor Shahi, Resident of Village- Suhai Malikana, Suhai, P.S.- Sitamarhi, District- Sitamarhi.

18. Lata Kumari, D/o Late Sadanand Yadav, Resident of Village- Paik Tola, P.S.-

Araria, District- Araria.

19. Md. Nayeemuddin, Son of Shamshul Hoda, Resident of Village- Dr. Yadav Path Bari Bazar, P.S.- Dumra, District- Sitamarhi.

... ... Petitioner/s Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

Versus

1. The State Of Bihar through Principal Secretary, Department of Education, Govt. of Bihar, Patna.

2. The Principal Secretary, Department of Education, Govt. of Bihar, Patna.

3. The Vice-Chancellor, Babasaheb Bhimrao Ambedkar BRA, Bihar University, Muzaffarpur.

4. The Registrar, Babasaheb Bhimrao Ambedkar BRA, Bihar University, Muzaffarpur.

5. The Administrative Officer, Directorate of Distance Education, Babasaheb Bhimrao Ambedkar BRA, Bih

6. The Chairman University Grant Commission, New Delhi.

7. The Chancellor Bihar State University.

8. The Director of Distance Education BRA, Bihar University, Muzaffarpur.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 11734 of 2017 ====================================================== Anugrah Narayan Institute Of Technology Son of Brij Shyam Sharma, Resident of Village P.O.- Bhori, P.S.- Tekari, District- Gaya.

... ... Petitioner/s Versus

1. Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur through its Vice Chancellor

2. The Vice Chancellor, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

3. The Registrar, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

4. The Examination Controller, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

5. The Director, Directorate of Distance Education, Baba Saheb Bhim Rao Ambedkar, Bihar University, Mu

6. The Administrative Officer-cum Programme Officer, Directorate of Distance Education, Baba Saheb Bhi

7. The Chancellor, Universities of Bihar, Raj Bhawan, Patna.

8. The Principal Secretary of Chancellor, Universities of Bihar, Raj Bhawan, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 11836 of 2017 ====================================================== Vinayaka Vidyapeeth, Belaganj, Gaya through its Programme Co-Ordinator, OM Prkash, Son of Brij Shyam Sharma, Resident of Village P.O.- Bhori, P.S.- Tekari, District- Gaya.

Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

... ... Petitioner/s Versus

1. Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur through its Vice Chancellor

2. The Vice Chancellor, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

3. The Registrar, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

4. The Examination Controller, Baba Saheb Bhim Rao Ambedkar, Bihar University, Muzaffarpur.

5. The Director, Directorate of Distance Education, Baba Saheb Bhim Rao Ambedkar, Bihar University, Mu

6. The Administrative Officer-cum Programme Officer, Directorate of Distance Education, Baba Saheb Bhi null null

7. The Chancellor, Universities of Bihar, Raj Bhawan, Patna.

8. The Principal Secretary of Chancellor, Universities of Bihar, Raj Bhawan, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 11848 of 2017 ====================================================== Gautam Buddha Para Medical College, Ramshila More, Gaya, Bihar Through its Programme Co-ordinator namely Manoj Kumar, son of Shri Ashok Kumar Roy, Resident of Mohalla- Bageshwari Colony, P.S.- Delha, District- Gaya.

... ... Petitioner/s Versus

1. Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur through its Vice Chancellor

2. The Vice Chancellor, Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur.

3. The Registrar, Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur.

4. The Examination Controller, Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur. null null

5. The Director, Directorate of Distance Education, Babasaheb Bhim Rao Ambedkar Bihar University, Muza

6. The Administrative Officer-cum-Programme Officer, Directorate of Distance Education, Babasaheb Bhim

7. The Chancellor, Universities of Bihar, Raj Bhawan, Patna.

8. The Principal Secretary of Chancellor, Universities of Bihar, Raj Bhawan, Patna. null null

... ... Respondent/s Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 14368 of 2018) For the Petitioner/s : Ms. Aditi Hansaria, Advocate Mr. Vikas Kumar, Advocate For the University : Mr. Zaki Haider, Advocate For the State : Mr. Amit Bhushan, AC to GP-17 For the UGC : Mr. Amrendra Nath Verma, Advocate For the Hon'ble Chanellor: Mr. Rana Vikram Singh, Advocate (In Civil Writ Jurisdiction Case No. 11734 of 2017) For the Petitioner/s : Mr.Arun Kumar, Advocate For the Hon'ble Chanellor: Mr. Rana Vikram Singh, Advocate For the University : Mr. Mritunjay Kumar, Advocate (In Civil Writ Jurisdiction Case No. 11836 of 2017) For the Petitioner/s : Mr.Arun Kumar, Advocate For the Hon'ble Chanellor: Mr. Rana Vikram Singh, Advocate For the University : Mr. Mritunjay Kumar, Advocate (In Civil Writ Jurisdiction Case No. 11848 of 2017) For the Petitioner/s : Mr.Arun Kumar, Advocate For the Hon'ble Chanellor: Mr. Rana Vikram Singh, Advocate For the University : Mr. Zaki Haider, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 01-08-2023

Heard learned counsel for the petitioners, learned

counsel for the University, learned counsel for the State and

learned counsel for the Chancellor, Universities of Bihar, Raj

Bhavan, Patna.

2. In all these writ applications, the petitioners have

challenged the communication as contained in letter no.BU-

50/2017-2360 GS(1) dated 14.09.2018 (Annexure- '10') issued

under the signature of the O.S.D. (Judicial), Governor's

Secretariat, Bihar whereby and whereunder the petitioners have

been informed that the proposals for approval of draft

Ordinance and Regulations of Distance and Online Distance

Learning (ODL) mode including B.Ed. Course (ODL mode) of Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

B.R.A. Bihar University, Muzaffarpur submitted by its letter

dated 27.09.2017 has been rejected.

3. Learned counsel for the petitioners submits that in

respect of B.Ed. Course the matter had travelled to this Court

earlier in CWJC No.23014 of 2018 (Vijay Kumar Vs. the State

of Bihar). This Court allowed the said writ application vide its

judgment dated 23.12.2020. The reasoning and rationale

provided in the said judgment of learned coordinate Bench

would equally apply in respect of the courses, the list of which

may be found with the first supplementary affidavit filed on

behalf of the petitioners in the present writ application.

4. On the request of learned counsel for the petitioners,

this Court has taken CWJC No.14368 of 2018 as the lead case

and has heard Ms. Aditi Hansaria, learned counsel for the

petitioners. In other writ applications, Mr. Arun Kumar, learned

counsel for the petitioners has made submissions but for the

reference the lead case is being taken for discussion.

5. Challenge in this writ application is to the

communication as mentioned above contained in Annexure- '10'

to the writ application whereunder the proposal in respect of

these petitioners has been rejected for the solitary reason that

prior assent for Ordinance and Regulations to run the course Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

was not taken by the University. Although, Annexure- '10'

refers another reason also with respect to the conditional order

of NCTE but learned counsel for the petitioners submits that the

said reason is in respect of B.Ed. Course, as such, this Court

would not be dealing with said condition no.(b) in the operative

part of the impugned order.

6. Learned counsel for the petitioners submits that while

rejecting the proposal on the ground of there being no prior

assent, it has been further stated that "Raj Bhavan is of the

consistent view that no Ordinance & Regulations shall be

approved ex-post-facto under the provisions contained in

Article-36(5) and Article-38(3) of the Statute. The Raj Bhavan

cannot obliterate the original Statute."

7. Learned counsel submits that on a bare perusal of the

impugned order it would appear that it wrongly refers Article of

the Statute because the Statute number and in respect of which

matter the Statutes are made have not been mentioned in the

impugned order. It is submitted that the impugned order is in

fact referring to Section 36(5) and Section 38(3) of the Bihar

State University Act, 1976 (hereinafter referred to as the 'Act of

1976'). It is submitted that so far as sub-section (5) of Section

36 is concerned, it is in respect of a 'Statute' which is to be Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

made by the senate of the university in accordance with Section

36 of the Act of 1976. Sub-section (5) of Section 36 says that a

Statute passed by the Senate shall have no validity until it has

been assented to by the Chancellor.

8. It is further submitted that Section 37 deals with the

Ordinances and it lays down the matters which are to be

provided under an Ordinance. The Ordinances are to be made by

the syndicate subject to the provisions of the Act of 1976 and

the Statute. According to Section 38, an ordinance made by the

syndicate under Section 37 is to be submitted as soon as may be

to the senate and thereupon it shall be the duty of the senate to

consider the Ordinance at its next meeting and the senate may

by resolution passed by a majority of the members present and

voting at such meeting, either reject the Ordinance or approve it

with such modifications, if any, and from such date, as it may

direct.

9. It is submitted that under sub-section(2) of Section 38

such an Ordinance approved by the senate shall be submitted to

the Chancellor who shall declare that he assents to the

Ordinance. At this stage, it is further submitted that sub-

section(2) of Section 38 is mandatory in nature which would be

evident from the language of the sub-section(2) the word 'shall' Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

at two places. Sub-section(3) of Section 38 further says that an

Ordinance shall have no validity until it has been assented to by

the Chancellor under sub-section(2). Proviso to sub-section(3)

of Section 38 further says that any ordinance having financial

implication shall not be enforceable unless prior approval of

State Government has been obtained.

10. Section 39 deals with the Regulations and clause (ii)

of sub-section(2) of Section 39 of the Act of 1976 lays down

that a regulation shall have effect from the date on which it has

been assented to by the Chancellor on being passed by the

senate with or without amendment. A Regulation is to be made

by an Academic Council under sub-section(1) of Section 39 and

is to be forwarded to the syndicate for transmission to the senate

with such recommendations as the syndicate wish to make.

11. Learned counsel submits that from the scheme of the

Act of 1976 it nowhere appears that there is any bar in approval

of the Ordinances and Regulations post-facto.

12. By filing an interlocutory application, the petitioners

have prayed for amendment of the reliefs prayed in paragraph

'1' of the writ application. It is only by filing this amendment

application that the communication as contained in Annexure-

'10' has been challenged.

Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

Stand of Chancellor, Bihar State Universities

13. Mr. Rana Vikram Singh, learned counsel for the

Chancellor submits with reference to the counter affidavit on

behalf of the Chancellor of the Universities of Bihar to the

interlocutory application of the petitioners that under Section

39(1)(ii) of the Act of 1976 the Chancellor of the Universities is

vested with the power to give assent and it would include the

power to refuse also. In this case, it is submitted that the

Chancellor after due consideration of the recommendations of

the University Advisory Committee of the Chancellor as well as

of the regulations as sent by the University has been pleased to

reject the same with detailed reasoning as contained in

Annexure- '10' to the writ application.

14. As regards the B.Ed. Course also, it is submitted that

the proposal submitted by the Vice-Chancellor of the University

vide letter no.B/1792 dated 18.12.2018 has been refused. The

University was running its B.Ed. Course in distance mode

without approval of the Chancellor. The rejection was

communicated vide letter dated 11.01.2019 (Annexure- 'F' to

the counter affidavit).

15. It is further submitted that one of the submissions on

behalf of the petitioners that Diploma courses do not require any Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

Ordinance and Regulation and only certificate courses required

an Ordinance and Regulation is a misconception on the part of

the petitioners. It is submitted that as a matter of fact no course

can be run by any University unless its regulation is assented to

by the Chancellor of the Universities.

16. In course of argument, however, it is not denied by

learned counsel for the Chancellor that after the judgment of this

Court in CWJC No.23014 of 2018, the University has

conducted the B.Ed. Examination for the session 2015-17 and

students who had earlier passed the said course have been given

their certificates. No reason has been shown to this Court as to

why the same principles would not apply in case of these

petitioners.

Stand of the University

17. Learned counsel for the University has also admitted

with reference to the statements made in paragraph '14' of the

counter affidavit filed on behalf of the University that in

compliance of the judgment of this Court, the Directorate of

Distance Education of B.R.A. Bihar University, Muzaffarpur

issued the final marksheet/certificates/degrees to the students

who have successfully completed the B.Ed. Course for the

session 2014-16. Thereafter the examination for the academic Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

session 2015-17 was also conducted and accordingly final

marksheet/certificates/degrees were issued to the students who

have successfully completed the B.Ed. Course for the session

2015-17. The examination of the session 2016-18 was

postponed in view of the unprecedented covid-19 situation and

examination of this session will be conducted after 06.08.2021.

As regards the present case, the stand of the University is (refer

paragraph 17) that the University is ready to conduct the

examination subject to the order and direction passed in this

case. It has been submitted that the University may conduct the

examination if directed or order by this Court as per the

Regulation 2020 (University Grant Commission Open and

Distance Learning Programmes and Online Programmes)

Regulation 2020. It is not in dispute that so far as the UGC is

concerned, it has granted recognition to these courses and the

University was allowed to run the courses.

Consideration

18. Having heard learned counsel for the petitioners, the

University, the Chancellor, Bihar State Universities and the

State of Bihar as also having gone through the materials

available on the record, this Court finds at the first instance that

the impugned order as contained in Annexure- '10' in so far as it Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

relates to the present batch of writ applications contains solitary

reason for rejection of the Ordinance and Regulation. Article

36(5) and Article 38(3) of the Statute have been referred to but

what has transpired in course of hearing is that it is Section

36(5) and Section 38(3) of the Act of 1976. This Court has not

been shown any Article 36(5) or Article 38(3) of any Statute

which prohibits ex-post-facto approval of the Ordinance and

Regulations.

19. Section 36(5) and Section 38(3) of the Act of 1976

have been referred to briefly while taking note of the

submissions of learned counsel for the petitioners. In fact, in

course of hearing, while going through those provisions Mr.

Rana Vikram Singh, learned counsel for the Chancellor accepts

the legal position to the extent that while Section 36(5) applies

to grant of assent to Statute which is not involved in the present

case, Section 38(3) does not say that there cannot be any ex-

post-facto approval of the Ordinance and Regulation. In fact,

sub-section (2) of Section 38 is very categorical that once the

Ordinance is sent by senate to the Chancellor, the Chancellor

shall give his assent. This Court has no hesitation in recording

that the language of sub-section (2) of Section 38 is mandatory

in nature and to this Court it appears that once the syndicate and Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

senate have done their job and if proposal is duly approved by

the syndicate and senate in appropriate proforma containing all

the required informations, there would be no scope of

interference and sub-section(2) of Section 38 of the Act of 1976

has to be followed in its words and spirit. While it is true that

sub-section (3) of Section 38 says that until the Ordinances are

approved it would not be valid but sub-section(3) has to be read

in the light of sub-section(2) and a combined reading of both the

provisions would in fact make it mandatory for the Hon'ble

Chancellor to consider the Ordinances immediately after its

receipt from the senate because non-approval of the same for a

long time and delay caused for that reason would only result in

hardships to the students and the University.

20. This Court further finds that the ratio of the

judgment of the learned coordinate Bench of this Court in the

case of Vijay Kumar (supra) would equally apply to the facts of

the present case. This Court has noticed from the facts narrated

in the writ application that the proposal for approval of

Ordinances and Regulation was sent after due approval from the

syndicate and senate to the office of the Chancellor as back as

on 23.09.2014 vide letter no. DTE/250 of the University. The

said proposal was considered by the Advisory Committee and Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

several observations were made. The observations were

communicated to the Vice-Chanellor of the University and it

was said that all the examinations shall be conducted by the

University, both at first degree level and the Master degree

programmes in accordance with the regulations notified by the

UGC in this regard. The Vice-Chancellor of the University was

requested to make necessary changes in the light of the

observations of the Advisory Committee and submit a modified

proposals for further action by the Secretariat. Thereafter the

Registrar of the University vide letter no. DDE/374 dated

30.07.2015 made a detail correspondence with Governor's

Secretariat, Raj Bhavan, Patna. All the observations made by the

Advisory Committee were also dealt with in detail and the

required changes were also done. A request was made to take

necessary steps to get the admission ordinance and examination

regulations approved at the earliest in the best interest of the

Directorate of Distance Education of the University. Annexure-

'4' to the writ application is the copy of the letter of the

University which has not been denied by Raj Bhavan Secretariat

in its counter affidavit.

21. The fact is that in the year 2017, the University

issued dates of programmes for P.G. 1st Semester examination Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

for the session 2016-18, 2016-19 and 2016-17 for different

courses, however, on 27.01.2017 a notice was published by the

University that all the examinations were stayed without

assigning any reason. This examination has not been conducted

till now.

22. From the narration of facts mentioned hereinabove,

it is crystal clear that in this case the Ordinances and

Regulations were sent to the Raj Bhavan Secretariat as back as

in the year 2014, the courses were approved by the UGC and the

University allowed admission of the students and conducted the

courses during the pendency of the proposal, therefore, in the

opinion of this Court, rejection of such kind of proposal vide

Annexure- '10' which has been issued on 14.09.2018 on the

ground that no ex-post-facto approval may be given is neither in

accordance with law nor it is otherwise justified. Since no

provision has been brought to the notice of this Court to support

the view taken in the impugned order (Annexure-10), this Court

sets aside the communication dated 14.09.2018 (Annexure-10

attached to I.A. No.9165 of 2018). The matter is remitted to the

Raj Bhavan Secretariat for a fresh consideration of the proposal

keeping in view the discussions made hereinabove and the

judgment of the learned coordinate Bench of this Court in the Patna High Court CWJC No.14368 of 2018 dt.01-08-2023

case of Vijay Kumar (supra).

23. Considering the urgency as the students are waiting

for their examination, this Court is of the considered view and

accordingly directs the concerned respondents to consider the

proposal for approval of Ordinances and Regulations within a

period of three months from the date of receipt/communication

of a copy of this order. If no decision is taken within the

aforesaid period, the University would proceed to conduct the

examinations and would further take the consequential steps as

has been taken in case of B.Ed. Course by virtue of the judicial

order of this Court.

24. These writ applications are allowed to the extent

indicated hereinabove.

(Rajeev Ranjan Prasad, J) arvind/-

AFR/NAFR
CAV DATE
Uploading Date       04.08.2023
Transmission Date