Patna High Court
Sanjay Kumar vs The State Of Bihar on 14 February, 2025
Author: Anjani Kumar Sharan
Bench: Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10496 of 2024
======================================================
Sanjay Kumar Son of Maheshwar Chaudhary, Resident of Jai Maharaja
Works, Kalambagh Chowk, P.S.- Kazi Mohammadpur, Muzaffarpur, District-
Muzaffarpur, Bihar. ... ... Petitioner.
Versus
1. The State of Bihar.
2. The Chancellor of the Universities, Bihar, Rajbhawan, Patna.
3. The Additional Chief Secretary, Education Department, Government of
Bihar, Patna.
4. The Principal Secretary to Governor-cum-Chancellor, Rajbhawan, Patna.
5. The Vice Chancellor, Bhim Rao Ambedkar Bihar Uniiversity, Muzaffarpur,
Bihar.
6. The Registrar, Bhim Rao Ambedkar Bihar University, Muzaffarpur, Bihar.
7. Dr. Aprajita Krishna, the Registrar, Bhim Rao Ambedkar, Bihar University,
Muzaffarpur, Bihar. ... ... Respondents.
======================================================
Appearance :
For the Petitioner : Mr. Dhananjay Kashyap, Advocate
Mr. Gyan Shankar, Advocate
For the State : Standing Counsel-4
For the respondent nos.2 & 4 : Mr. Janardan Prasad Singh, Sr. Advocate
Mr. Rajiv Ranjan Kumar Pandey, Advocate
For the B.R.A.B. University : Mr. Bindhayachal Rai, Advocate
For the respondent no.7 : Mr. Santosh Kumar, Sr. Advocate
Mr. Madhurendra Sharma, Advocate
Mr. Pawan Kumar, Advocate
Mr. Utsav, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
C.A.V. JUDGMENT
Date : 14-02-2025
Heard learned counsel for the parties.
2. The present writ petition has been filed seeking the
following reliefs:
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
2/38
"(i) For issuance of appropriate writs order or
directions by this Hon'ble High Court for quashing
of the notification as contained in Memo No. BSU
(Registrar)-06/2023-948/GS(I) dated 18.06.2024
issued under the signature of the Respondent No. 4
whereby and whereunder Hon'ble the Chancellor
in exercise of power vested in him under Section 15
of the Bihar State University Act, 1976 (as
amended up to date) has appointed the Respondent
No. 7 against the post of the Registrar of the B.R.A.
Bihar University despite the fact that she does not
possess the requisite qualification as prescribed
under the law for holding the post of the Registrar
of the Bhimrao Ambedkar Bihar University,
Muzaffarpur and has further removed the
petitioner from the post of the Registrar, Bhimrao
Ambedkar Bihar University, Muzaffarpur without
following the Principles of Natural Justice and
without any notice to the petitioner and without
following the guidelines issued in this respect by
the Governor's Secretariat vide Memo No. -BSU-
45/2019-844
/GS (I) dated 27.05.20 (Annexure-
P/11).
(ii) For issuance of appropriate writs order or
directions for quashing of the notification as
contained in Memo No. B/1612 dated 19.06.24
issued under the signature of new incumbent (i.e.
Dr. Aprajita Krishna) being the Registrar of the
Bhimrao Ambedkar University, Muzaffarpur by
which it has been notified that the Respondent No.
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
7 has assumed the charge of the office of the
Registrar of the Bhimrao Ambedkar Bihar
University, Muzaffarpur with effect from the
afternoon of 19th of June 2024, on the ground that
the Respondent No. 7 does not possess the basic
and requisite qualification for holding the post of
the Registrar and her appointment against the post
of the Registrar of the B.R.A. Bihar University not
in consonance with the stipulations and procedures
mentioned in Section 15 Bihar State University Act,
1976 (as amended up to date).
(iii) Further, for issuance of appropriate writs,
orders or directions for quashing of the office order
as contained in Memo No. B/1620 dated 20.06.24
issued under the signature of the Registrar of
B.R.A. Bihar University, Muzaffarpur whereby and
whereunder the Respondent No. 7 without any
jurisdiction of power has relieved the petitioner
from the post of the Registrar of the B.R.A. Bihar
University, Muzaffarpur.
(iv) And, the appropriate writs, orders or directions
may be issued by this Hon'ble Court for quashing
of the office order as contained in Memo No.
B/1620 dated 20.06.24 issued under the signature
of the Registrar of B.R.A. Bihar University,
Muzaffarpur whereby and whereunder after being
illegally relieved from the post of the Registrar of
the University, totally in malafide, illegal and
arbitrary manner the petitioner has been posted at
R.N. College, Hazipur in place of being reverted to
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
his parent and original place of posting ie.
University Department of Economics, Social
Science Block, BRA Bihar University, Muzaffarpur
(v) And further appropriate writs, orders and
directions may be issued by this Hon'ble High
Court to the office of the Chancellor of the
Universities of Bihar, Rajbhawan, Patna (the
Respondent No. 2 and 4) to produce the original
related records before this Hon'ble Court fore
ascertaining the fact that on what grounds the
petitioner has been removed from the post of the
Registrar without giving any notice to him and
whether the due process of law as mentioned in
Section 15 and Section 10 of the Bihar State
University Act and the provisions under related
statutes and law as propounded by the Court of
Law have been followed in the appointment of the
Respondent No. 7 against the post of the Registrar
and if the same is found to be illegal and alien to
law then in that case the whole process of removal
of the Petitioner from the post of the Registrar of
the B.R.A. Bihar University, Muzaffarpur and the
appointment of the Respondent No. 7 against the
post of the Registrar the B.R.A. Bihar University,
Muzaffarpur may be set aside and quashed and in
consequence the Petitioner may be reinstated
against the post of the Registrar of the B.R.A.
Bihar University, Muzaffarpur.
(vi) And any other appropriate writs, order or
directions may be issued by this Hon'ble High
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
Court under the given facts of the case."
3. The short facts of the present case are that the petitioner
was appointed against the post of the Lecturer (i.e. Assistant
Professor) on 20.11.2002. He was promoted to the rank of
Reader (Associate Professor) w.e.f. 28.06.12 and thereafter
was promoted to the rank of Professor w.e.f. 28.06.2020.
Thereafter, the petitioner was appointed as the Registrar,
B.R.A. Bihar University, Muzaffarpur vide Notification issued
by the Governor's Secretariat, Bihar, as contained in Memo
No. BSU (Registrar) 27/2017-815/GS(I) dated 05.06.2023.
The petitioner started to discharge his duties as the Registrar of
the B.R.A. Bihar University (hereinafter referred to as the
'University') to the satisfaction of the authorities concerned.
Suddenly, without any prior notice or hearing the petitioner,
respondent no. 4 issued a notification, as contained in Memo
No. -bsu (registrar)-06/2023-948/gs (i) dated 18.06.2024, by
which the respondent no. 7 was appointed as the Registrar. On
19.06.2024, the respondent no. 7 assumed the charge of the
office of the Registrar of the University. On 20.06.2024, an
office order, as contained in Memo No. B/1620 dated
20.06.2024, was issued by respondent no. 7 whereby the
petitioner was relieved from the post of Registrar of the
University, and was posted at R.N. College, Hajipur with
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
immediate effect.
4. Mr. Dhananjay kashyap, learned counsel for the petitioner
submits that the petitioner was terminated from the post of
Registrar of the University vide memo no. B/1620 dated
20.06.2024 in the guise of relieving him from the post of
Registrar. He further submits that the Memo No. B/1620
dated 20.06.2024 has been issued in complete violation of
principles of natural justice and flagrant violation of
prescribed procedure for termination of any person from the
post of registrar as contained in Letter No. BSU(VC)-
45/2019 dated 27.05.2020.
5. Learned counsel for the petitioner has drawn the attention of
this court to the Letter No. BSU(VC)-45/2019 dated
27.05.2020 which reads as follows,
It has been noticed that proposals are received in
the Chancellor's Secretariat from Vice
Chancellor's for termination of appointment of
Officers of Universities which has been appointed
with the approval of the Hon'ble Chancellor.
In this regard, I am directed to inform that the
Hon'ble Chancellor, after due consideration and in
exercise of the powers vested in him under-section
9(7)(ii) of Bihar State University Act, 1976 and
sub-section (7) of section 10 of Patna University
Act, 1976 (as amended up-to-date) has been
pleased to order, in the interest of natural justice,
that if the Vice-Chancellor of a University in Bihar
is not satisfied with the working of an Officer in his
/ her University who has been appointed with the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
approval of the Hon'ble Chancellor, for instance
the Financial Adviser, Registrar, Finance Officer
etc. and considers the termination of the
appointment of such person to be in the academic
or administrative interest of the University, he / she
should first seek an explanation / show-cause from
the said Officer along with a statement of charges
against the Officer and provide him/her a
reasonable time to submit the explanation / show-
cause, which should normally not be less than 7
days (unless it is a matter of great urgency).
Thereafter, if the Vice-Chancellor is not satisfied
with the explanation / show-cause submitted by the
Officer, he / she may send the proposal regarding
termination of appointment of the Officer along
with his / her own comments on the explanation /
show-cause submitted by the Officer and clear
recommendation regarding action to be taken for
kind orders of the Hon'ble Chancellor.
6. Learned counsel for the petitioner draws attention of this
Court to the aforesaid letter to submit that a detailed process
for removal of any person from the post of Registrar is
provided which mandates adherence to the principles of
natural justice by issuance of show cause and providing a
reasonable time for submission of explanation, however, in
the case of termination of the petitioner, it is admitted that no
prior notice, show cause notice or no opportunity of hearing
was ever issued to the petitioner prior to passing of order of
removal of petitioner from the post of Registrar, therefore, the
impugned order dated 20.06.2024 is not in consonance to the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
procedure laid down in Letter No. BSU(VC)-45/2019 dated
27.05.2020 and it is also violative of principles of natural
justice.
7. Mr. Dhananjay kashyap, learned counsel for the petitioner
further submits that the appointment of respondent no. 7 at
the post of Registrar is in complete violation of Section 15 of
Bihar State University Act, 1976 (hereinafter referred to as
the 'University Act') . He further submits that the respondent
no. 7 does not possess requisite qualification for appointment
to the post of Registrar. To buttress his submission, learned
counsel of the petitioner submits that Section 15 of the
University Act provides a panel of names be sought from the
State Government, Central Government, University Grants
Commission or any University for the post of Registrar, but,
in the instant case, the Hon'ble Chancellor has not sought for
any names as mandated under Section 15 of the University
Act, and thus the appointment is contrary to the process as
mandated under of Section 15 of the University Act.
8. Learned Counsel for the petitioner draws attention of this
Court to the Letter dated 31.12.2006 issued by Ministry of
Human Resource Development, Department of Higher
Education, Government of India and Resolution No. 15/डड 1-
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
01/09 अअश - ii उ० शश० 2693 dated 27.08.2009 issued by
Human Resource Development Department, Government of
Bihar to submit that the eligibility criteria as mandated for the
post of registrar is "at least 5 years of experience as assistant
professor in the agp of rs. 7000 and above or with 8 years of
service in the agp of rs. 8000 and above including as
associate professor with experience in educational
administration", however, the respondent no. 7 has been
appointed despite not fulling the above criteria.
9. Learned counsel for the petitioner has submitted that after
illegally removing the petitioner from the post of Registrar of
the University, the petitioner has been posted at R. N.
College, Hajipur, which is almost 60 Kms away from the
headquarters and from his original place of posting at the
University Department of Economics, B.R.A. Bihar
University, Muzaffarpur, being the original place of posting
of the petitioner since 2010, which is contrary to the usual
practice followed by the University. It has been further
submitted that the posting of the petitioner at R. N. College,
Hajipur is devoid of logic and reflective of bias as
immediately after the posting of the petitioner at R. N.
College, Hajipur, on 20.07.2024, two teachers have been
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
appointed in University Department of Economics, who are
junior to the petitioner. Thus, on the one hand, the petitioner
has been removed and, on the other hand, two new persons
have been appointed.
10. A counter affidavit has been filed on behalf of the
respondent nos. 2 and 4. Mr. Janardan Prasad Singh, learned
senior counsel assisted by Mr. Rajeev Ranjan Pandey, learned
Advocate, appearing on behalf of the respondent nos. 2 and 4,
i.e. the Hon'ble Chancellor, has opposed the prayer of the
petitioner essentially on two grounds.
11. Raising his first ground, Mr. Janardan Prasad Singh,
learned senior counsel submits that the writ petition is
thoroughly misconceived as the petitioner has not been
"terminated" whereas the petitioner has been "transferred" by
virtue of powers vested under Section 15(3)(c) of the
University Act and as such it has no impunity attached to it.
Advancing his second ground, he further submits that the
order of transfer has been made by the Hon'ble Chancellor
after the performance appraisal of the petitioner as well
Registrars of other Universities of Bihar and it was found
desirable to replace the Registrars in academic and
administrative interest of the Universities and, therefore, the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
petitioner was relieved from the post of the Registrar.
12. A counter affidavit has been filed on behalf of the
Respondent No. 5 and 6, i.e. the University. Mr. Bindhyachal
rai, learned counsel appearing on behalf of respondent nos. 5
and 6, i.e. the University submitted that the University has
acted in light of the directives issued by the Governor's
Secretariat as contained in the Memo No. 948 dated
18.06.2024. He has further submitted that the guidelines as
contained in the Letter No. BSU(VC)-45/2019 dated
27.05.2020 is not applicable in this case as the said guidelines
are for the cases where a proposal for termination of any
person is issued from the office of Vice Chancellor, whereas
in instant case the respondent no. 7 has been appointed
directly by the Hon'ble Chancellor himself, therefore, there is
no violation of principles of natural justice.
13. A counter affidavit has been filed on behalf of the
Respondent No. 7, i.e. the incumbent Registrar. Mr. Santosh
Kumar, learned senior counsel assisted by Mr. Pawan Kumar,
learned Advocate appearing on behalf of the Respondent No.
7 opposed the prayer of the Petitioner.
14. Mr. Santosh Kumar, learned senior counsel assisted by
Mr. Pawan Kumar, learned Advocate appearing on behalf of
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
the Respondent No. 7 submitted that the guidelines, as
contained in Letter No. BSU(VC)-45/2019 dated 27.05.2020,
is not applicable to the case of petitioner as the said
guidelines are for Vice Chancellor and the same is not
applicable while exercising power under Section 15 of the
Bihar State University Act, 1976 by the Hon'ble Chancellor.
15. He further submitted that the Respondent No. 7 possess an
excellent academic record and is earning gross pay of Rs.
1,01,544 which is higher than AGP of Rs. 7000 thus the
eligibility of the Respondent No. 7 cannot be questioned. He
has further submitted that the eligibility criteria as contained
in the letter dated 31.12.2008 is for the direct recruitment and
thus not applicable in the case of the appointment of the
Respondent No. 7.
16. He further submitted that the appointment of the
Respondent No. 7 has been done in consonance with Section
15 of the Bihar State University Act, 1976 and as such request
for panel is not mandatory for such appointment. To buttress
his argument, Learned Senior Advocate on behalf of the
Respondent No. 7 has drawn the attention of this court on
Section 15 of the Bihar State University Act, 1976 and
emphasised on usage of word "may" to show that the usage
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
of word may in the Section 15 does not cast any mandate on
the Chancellor to request for any panel of names for
appointment of the registrars. He relies on the judgment of
Hon'ble Supreme Court in the case of Reserve Bank of India
vs. Peerless General Finance and Investment Co. Ltd. and
Ors., reported in AIR 1987 SC 1023 in paragraph 37, it is
held that,
"37. Interpretation must depend on the text
and the context. They are the bases of
interpretation. One may well say if the text
is the texture, context is what gives the
colour. Neither can be ignored. Both are
important. That interpretation is best which
makes the textual interpretation match the
contextual. A statute is best interpreted
when we know why it was enacted. With this
knowledge, the statute must be read, first as
a whole and then section by section, clause
by clause, phrase by phrase and word by
word. If a statute is looked at, in the context
of its enactment, with the glasses of the
statute maker, provided by such context, its
scheme, the sections, clauses, phrases and
words may take colour and appear different
than when the statute is looked at without
the glasses provided by the context. With
these glasses we must look at the Act as a
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
whole and discover what each section, each
clause, each phrase and each word is meant
and designed to say as to fit into the scheme
of the entire Act. No part of a statute and no
word of a statute can be construed in
isolation. Statutes have to be construed so
that every word has a place and everything
is in its place. It is by looking at the
definition as a whole in the setting of the
entire Act and by reference to what
preceded the enactment and the reasons for
it that the Court construed the expression
'Prize Chit' in Srinivasa and we find no
reason to depart from the Court's
construction."
17. Learned Senior Advocate on behalf of the Respondent
No. 7 has submitted that the petitioner has not been
terminated, however, he has been merely transferred by virtue
of Section 15(3)(c) of the Bihar State University Act, 1976
which does not have any effect of reducing his rank or
termination therefore there cannot be any violation of natural
justice in such transfer.
18. On query of the court that if the petitioner was transferred
then why did the relieving order do not mention Section 15(3)
(c) therein the order, to which the learned senior Advocate
submits that the relieving order correctly mentions Section 15
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
as Section 15(3)(c) comes under Section 15 and even
otherwise mentioning of incorrect provision of law will not
be fatal to the order as long as Chancellor has the power to
transfer and the procedural inaccuracies will not override the
substantial justice.
19. Lastly, learned senior Advocate on behalf of the
Respondent No. 7 has submitted that the writ petition is not
maintainable in view of the available alternative remedy
under Section 9(7)(iii) of Bihar State University Act, 1976
where the Petitioner can file a representation before the
Chancellor, if he is aggrieved by the transfer order and the
Learned Senior Advocate draws the attention of this court on
the principles laid down by Hon'ble Supreme Court in the
case of Radha Krishan Industries vs. State of Himachal
Pradesh and Ors., reported in AIR 2021 SC 2114, wherein
Hon'ble Supreme held that:
"The principles of law which emerge are
that:
(i) The power Under Article 226 of the
Constitution to issue writs can be
exercised not only for the enforcement
of fundamental rights, but for any
other purpose as well;
(ii) The High Court has the discretion not
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
to entertain a writ petition. One of the
restrictions placed on the power of the
High Court is where an effective
alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the Rule of alternate
remedy arise where (a) the writ
petition has been filed for the
enforcement of a fundamental right
protected by Part III of the
Constitution; (b) there has been a
violation of the principles of natural
justice; (c) the order or proceedings
are wholly without jurisdiction; or (d)
the vires of a legislation is challenged;
..."
20. Per contra, learned counsel for the petitioner submits that
a conjoint reading of the Memo No. BSU (Registrar)-
06/2023-948/GS(I) dated 18.06.2024 and the Memo No.
B/1620 dated 20.06.2024 has the effect of termination of the
petitioner from the post of Registrar of B.R.A., Bihar
University and mere usage of phrase of relieving will make
no difference. Mr. Dhananjay Kashyap, Learned Counsel for
the petitioner draws attention of this court towards the
Section 15(3)(c) of the Bihar State University Act, 1976 to
submit that transfer can only be made at the equivalent post
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
whereas it is not the case that the petitioner has been
transferred to the post of Registrar of one University to
another University, thus and as such the usage of phrases such
as 'relieving', 'transfer' will not change the effect of the said
order.
21. Learned counsel for the petitioner submits that the
arguments advanced at the end of respondents suffer from
inherent inconsistency as at one hand the respondents submit
that the impugned order is a merely a transfer and, on the
other hand, it has been submitted that the said order has been
passed after due appraisal of the performance of the petitioner
and the said order has been passed in academic and
administrative interest of the University. Thus, if the
petitioner's performance was subjected to appraisal, then the
opportunity of hearing cannot be taken away from the
petitioner and such unilateral and secretive appraisal is in the
teeth of principles of natural justice. Learned counsel for the
petitioner bases his submission on the Paragraph No. 8 of the
Counter Affidavit filed on behalf of the Respondent No. 2 and
4, which reads as follows:
"8. That it is submitted here that after
performance appraisal the petitioner was
ordered to be relieved forthwith vide
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
Notification dated 18.06.2024 of the
Governor's Secretariat (Annexure P/1)
within the power vested by the law to the
Hon'ble Chancellor"
22. Learned counsel for the petitioner submits that the usage
of phrase "may" does not mean that the appointment can be
done in absolute opaque manner and the "may" in the Section
15 of the Bihar State University Act, 1976 has to be read as
"shall". He further submits that the rule of interpretation
allows that may can be read as shall in furtherance of the
legislative intent behind a statue and he relies on the
judgment of Hon'ble Supreme Court in the case of Mohan
Singh and Ors. vs. International Airport Authority of India
and Ors. reported in (1997) 9 SCC 132 wherein Paragraph
17, it was held that,
"17. The distinction of mandatory
compliance or directory effect of the
language depends upon the language
couched in the statute under consideration
and its object, purpose and effect. The
distinction reflected in the use of the word
"shall" or "may" depends on conferment of
power. In the present context, "may" does
not always mean may. May is a must for
enabling compliance of provision but there
are cases in which, for various reasons, as
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
soon as a person who is within the statute
is entrusted with the power, it becomes duty
to exercise. Where the language of statute
creates a duty, the special remedy is
prescribed for non-performance of the
duty. In "raise on Statute Law" (7th Edn.) it
is stated that the Court will, as a general
rule presume that the appropriate remedy
by common law or mandamus for action
was intended to apply. General rule of law
is that where a general obligation is
created by statute and statutory remedy is
provided for violation, statutory remedy is
mandatory. The scope and language of the
statute and consideration of policy at times
may, however, create exception showing
that legislature did not intend a remedy
(generality) to be exclusive. Words are the
skin of the language. The language is the
medium of expressing the intention and the
object that particular provision or the Act
seeks the achieve. Therefore, it is necessary
to ascertain the intention. The word "shall"
is not always decisive. Regard must be had
to the context, subject matter and object of
the statutory provision in question in
determining whether the same is
mandatory or directory. No universal
principle of law could be laid in that behalf
as to whether a particular provision or
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
enactment shall be considered mandatory
or directory. It is the duty of Court to try to
get at the real intention of the legislature
by carefully analysing the whole scope of
the statute or section or a phrase under
Consideration. As stated earlier, the
question as to whether the statute is
mandatory or directory depends upon the
intent of the legislature and not always
upon the language in which the intent is
couched. The meaning and intention of the
legislature would govern design and
purpose the Act seeks to achieve. In
"Sutherland Statutory Construction" (3rd
Edn) Volume I at page 81 in paragraph
316, it is stated that although the problem
of mandatory and directory legislation is a
hazard to all governmental activity, it is
peculiarly hazardous to administrative
agencies because the validity of their
action depends upon exercise of authority
in accordance with their charter of
existence the statute. If the directions of the
statute are mandatory, then strict
compliance with the statutory terms is
essential to the validity of administrative
action. But if the language of the statute is
directory only, the variation from its
direction does not invalidate the
administrative action. Conversely, if the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
statutory direction is discretionary only, it
may not provide an adequate standard for
legislative action and the delegation. In
"Crawford on the Construction of Statutes"
at page 516, it is stated that:
The question as to whether a statute is
mandatory or directory depends upon the
intent of the legislature and not upon the
language in which the intent is clothed.
The meaning and intention of the
legislature must govern, and these are to
be ascertained, not only from the
phraseology of the provision, but also by
considering its nature, its design, and the
consequences which would follow from
construing it the one way or the other....
23. To buttress his submission, learned counsel for the
petitioner submits that it is trite principle of law that when the
statute clearly mandates a process to be followed, the same is
required to be done in that particular manner or not done at
all. He relies on the judgment of Privy Council in the Nazir
Ahmad v. King Emperor, 1936 SCC OnLine PC 41 wherein
it was held that "that where a power is given to do a certain
thing in a certain way the thing must be done in that way or
not at all. Other methods of performance are necessarily
forbidden."
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
24. He also relies on the case of Cherukuri Mani v. Chief
Secretary, Government of Andhra Pradesh & Ors, (2015) 13
SCC 722, wherein Hon'ble Supreme Court held that "Where
the law prescribes a thing to be done in a particular manner
following a particular procedure, it shall be done in the same
manner following the provisions of law, without deviating
from the prescribed procedure............."
25. Lastly, learned counsel for the petitioner rebuts the
submission advanced on behalf of the Respondent No. 7
pertaining to the maintainability of the writ petition in view of
the availability of the alternative remedy by submitting that
the principle enunciated in the case of Radha Krishan
Industries vs. State of Himachal Pradesh and Ors. (Supra)
provides that the writ is maintainable in the case of violation
of principles of natural justice and it is the specific case of the
petitioner that he has been terminated in violation of the
principles of natural justice.
26. Having considered the submission advanced on behalf of
the parties, I find force in the submission of learned counsel
for the petitioner that the instant writ is maintainable as the
petitioner's specific case is of violation of the principles of
natural justice. It is no more res integra that availability of
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
alternative remedy is a self-imposed restriction and it is not a
compulsion as held in the case of Whirlpool Corporation vs
Registrar of Trademarks, Mumbai reported in (1998) 8 SCC
1 as well as in the case of Radha Krishan Industries vs.
State of Himachal Pradesh and Ors. (Supra).
27. Now, before considering the rival submissions over the
issue of termination of the petitioner, I find it apt to reproduce
Section 7, Section 8, Section 15(1) and 15(3)(c) of the Bihar
State University Act, 1976, which is reproduced hereunder:
7. Officers of the University- The
following shall be the officers of the
University-
(1) The Chancellor
(2) The Vice Chancellor
(3) The Pro Vice Chancellor
(4) The Financial Adviser
(5) The Dean, Students' Welfare
(6) Proctor
(7) Registrar
(8) Inspector of Colleges
(9) Finance Officer, and
(10) Such other person or person as
may be declared officers of the
University by the Statutes.
8. Transfer of Officers- Officers of
the University under serial nos. 4 to 9
of section 7, may be transferred by the
Chancellor to another University on
the same or any other equivalent
post of within the University on any
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
other equivalent post.
15. The Registrar.- (1)
Notwithstanding any provisions of the
Act, if the Chancellor thinks fit, he
may request the State Government,
Central Government, University
Grants Commission or any University
to send names of suitable officers
including the retired officers of Bihar
Administrative Services for the post of
Registrar, and in that case State
Government, Central Government,
University Grants Commission or any
University may send the name of one
or more officers for consideration for
appointment as Registrar under such
terms and conditions of service, as he
may consider fit, and then the
Chancellor shall appoint the Registrar
from amongst them.
(2) The Registrar shall be whole time
officer of the University and he shall
act as Secretary to the Senate, the
Syndicate and the Academic Council
and shall:-
(a) be the custodian of the
records, the common seal and
such other properties of the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
University as the Vice-
Chancellor and the Syndicate
shall commit to his charge.
(b) conduct the official
correspondence of the
University, and shall maintain
the proper investment of the
University;
(c) perform such other duties as
may be specified in the Statutes
or prescribed by the Ordinance
or the Regulation or as may be
required from time to time by
the Vice-Chancellor, Pro-Vice-
Chancellor or the Syndicate.
(d) represent the University in
suits or proceedings by or
against the University, sign
powers of Attorney and verify
pleadings or depute his
representative for the purpose;
(e) render assistance to the Vice-
Chancellor and Pro-Vice-
Chancellor in discharge of their
duties in regard to the conduct of
the examination and the
publication of the results;
(f) look after the proper
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
functioning of the institutions
affiliated to the other than the
Constituent Colleges and the
Department of University and
shall report to the Vice-
Chancellor;
(g) have power to take
disciplinary action against the
employees belonging to the
Ministerial staff and to suspend
them pending inquiry to
administer warning to them or to
impose on them the penalty of
censure or the withholding of
increment:
Provided that no such penalty
shall be imposed unless the person
concerned has been given a reasonable
opportunity of showing cause against
the action proposed to be taken against
him.
(3)(a)...
(b)...
(c) The Registrar may be transferred
by the Chancellor from on university
to another University, on the same or
any equivalent post.
(Emphasis added)
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
28. From close examination of the scheme of the Bihar State
University Act, 1976, more particularly the Section 7 and
Section 15(2) of the Bihar State University Act, 1976, it
would manifest that the post of Registrar has been identified
as the officer of the University. The post of Registrar is not
only a post of repute but it embodies the functionality of
discharging important administrative function, taking
important decisions as well as representative character. It is a
post of high accountability and high responsibility. Similarly,
if the post of Registrar is pivotal to a University, then the
appointment as well as termination has to be done in a
prescribed procedure and it cannot be an act of haste under
the shadows of opaqueness and subjectivity.
29. I find no force in the contention of the respondents that
the petitioner was transferred and, therefore, there is no
requirement of observing the principles of natural justice. The
obvious reason for rejection of this contention of the
respondents flows from Section 8 and Section 15(3)(c) of the
Bihar State University Act. From perusal of the said
provisions of the Bihar State University Act, 1976, the
legislative intent becomes clear that the "transfer"
presupposes "equivalency of the post" and it is not the case
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
that the petitioner has been transferred from B.R.A. Bihar
University to another University at the post of Registrar,
whereas it is the case that the Respondent No. 7 has been
appointed at the place of the petitioner and then the petitioner
has been posted to Hajipur, thus not maintaining the
equivalency of the post of Registrar shows that it is not the
case of transfer simpliciter.
30. Another reason to reject the contention of the respondents
flows from the submissions advanced by the Respondent Nos.
2 and 4, wherein it has been submitted on their part that the
performance of the petitioner was evaluated and then it was
decided to remove Petitioner from the post of Registrar in the
academic and administrative interest of the University. Upon
considering the submission of the respondent nos. 2 and 4, it
would show that the petitioner has been terminated /removed
from the post of Registrar on the basis of evaluation of his
performance and such act cannot be shielded in the usage of
innocuous phrases like relieving or transfer and it does not
definitely become a case of transfer under Section 15(3)(c) of
the Bihar State University Act, 1976.
31. It is settled law that innocuous expressions by usage of
phrases like relieving does not change the nature of order and
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
the real test for examination of the order is to see if the person
served with such order is faced with any disadvantage or
stigma and if the answer is in affirmative then the such order
has to be passed in strict observance of established
procedures as well as principles of natural justice. The
removal of the petitioner upon evaluation of performance and
immediate transfer to Hajipur is bound to carry a stigma
which will have definite impact on the career of the
petitioner. Thus, the order of relieving of the petitioner cannot
be saved by mere usage of innocuous expressions. It is
admitted position that the petitioner was visited with the
Memo No. B/1620 dated 20.06.24 without prior show cause
or any notice in any manner, thus it is a case of clear violation
of principles of natural justice where the petitioner's
performance has been evaluated and he has been removed but
no opportunity of hearing was afforded to him and the
innocuous expression of relieving does not save the Memo
No. B/1620 dated 20.06.24 from being violative of principles
of natural justice.
32. Moreover, the Letter No. BSU(VC)-45/2019 dated
27.05.2020 presented by the Petitioner provides for a detailed
procedure for termination of registrar by observing the
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
principles of natural justice. I find it apt to reproduce the
contents of the letter dated 27.05.2020 hereunder:
It has been noticed that proposals are
received in the Chancellor's Secretariat
from Vice Chancellor's for termination of
appointment of Officers of Universities
which has been appointed with the
approval of the Hon'ble Chancellor.
In this regard, I am directed to inform that the
Hon'ble Chancellor, after due consideration and in
exercise of the powers vested in him under-section
9(7)(ii) of Bihar State University Act, 1976 and
sub-section (7) of section 10 of Patna University
Act, 1976 (as amended up-to-date) has been
pleased to order, in the interest of natural justice,
that if the Vice-Chancellor of a University in Bihar
is not satisfied with the working of an Officer in his
/ her University who has been appointed with the
approval of the Hon'ble Chancellor, for instance
the Financial Adviser, Registrar, Finance Officer
etc. and considers the termination of the
appointment of such person to be in the academic
or administrative interest of the University, he / she
should first seek an explanation / show-cause
from the said Officer along with a statement of
charges against the Officer and provide him/her a
reasonable time to submit the explanation / show-
cause, which should normally not be less than 7
days (unless it is a matter of great urgency).
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
Thereafter, if the Vice-Chancellor is not satisfied
with the explanation / show-cause submitted by the
Officer, he / she may send the proposal regarding
termination of appointment of the Officer along
with his / her own comments on the explanation /
show-cause submitted by the Officer and clear
recommendation regarding action to be taken for
kind orders of the Hon'ble Chancellor
(Emphasis added)
33. From the close examination of the procedure prescribed
herein above, it can be culled out that:
I. The process is applicable to any officer,
including Registrar, in the University who
has been appointed with the approval of
the Hon'ble Chancellor.
II. If, the Vice Chancellor has reasons to
believe that termination of such officer is
in the academic or administrative interest
of the University, then
III. A show cause has to be issued with
minimum 7 days time, whereas such 7
days time can be waived in matters of
great urgency.
IV. If the Vice Chancellor is not satisfied with
the explanation, then recommendation can
be submitted along with its own
comments for orders of the Hon'ble
Chancellor.
34. This court is of the opinion that if there is a prescribed
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
process for termination of any person from the post of
Registrar, then such process cannot be simply brushed aside
by saying that this procedure is not applicable on the orders
made by the Chancellor as the process is applicable for
recommendation made by the Vice Chancellor. If this is to be
accepted then the process prescribed will be reduced to an eye
wash which can be used and negated at convenience. Another
reason to hold this process as mandatory is that the entire
process is meant to facilitate the Chancellor to reach to a
conclusion that if a person can be terminated from the post of
registrar etc after considering the statement of charges and
explanation along with supporting material to ensure that an
informed decision is made which shall also provide an
efficacious remedy to the aggrieved to approach Chancellor
against such recommendation by showing faults in the
material presented before him, if there is any. However, if this
process is held to be not applicable on the orders made by
Chancellor, then it will be open to misuse and the aggrieved
person will be left remediless.
35. The contention of the respondents that the process is not
applicable on the Hon'ble Chancellor is a liable to be rejected
for an obvious reason that if a detail procedure has been made
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
to facilitate the Hon'ble Chancellor in taking a decision, then
in absence of such facilitation by providing materials, the
decision is bound to be non-speaking and bereft of reasons
which has happened in the instant case. Also, if the
performance of the petitioner was evaluated, then there lies a
right of the petitioner to be heard on such evaluation and non-
production of any details of such evaluation during the instant
proceedings by Respondent No. 2 and 4 clearly shows that
purported evaluation is nothing but a feeble attempt to save a
non-speaking order.
36. Another reason to reject the contention of the respondents
about applicability of the procedure as contained in Letter No.
BSU(VC)-45/2019 dated 27.05.2020 is that if such a
proposition is accepted then it will give rise to a process
absolutely opaque and subjective which cannot be the intent
of any statute and such proposition cannot be said to be in
academic or administrative interest of any university.
37. Now, coming to the appointment of the Respondent No.
7. From the perusal of Letter dated 31.12.2006 issued by
Ministry of Human Resource Development, Department of
Higher Education, Government of India and Resolution No.
15/डड 1-01/09 अअश - II उ० शश० 2693 dated 27.08.2009 issued
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
by the Human Resource Development Department,
Government of Bihar, it can be seen that the eligibility criteria
prescribed for post of Registrar is at least 5 years of
experience as Assistant Professor in the AGP of Rs. 7000 and
above or with 8 Years of service in the AGP of Rs. 8000 and
above including as Associate Professor with experience in
educational administration, however, the Respondent No. 7
has failed to show that the Respondent No. 7 is possessed
with such eligibility. At this point, it is also very important to
record that no appointment letter of the Respondent No. 7 has
been produced which goes to the root and seriously affect the
claim of the Respondent No. 7. Instead of producing
appointment letter, a certificate is attempted to have been
shown that the Respondent No. 7 has been working in the
Patna Women's College as Assistant Professor in the
Department of Physics and a the confirmation letter which in
no circumstances can be said to be making the respondent no.
7 even eligible for consideration. The contention raised by the
respondent no. 7 about the gross pay and excelled academic
record of the respondent no. 7 is misplaced inasmuch that
there is no question about the academic record of the
respondent no. 7 or quantum of salary whereas the sole
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
eligibility is about the experience as Assistant Professor /
Associate Professor and AGP of 7000 or 8000 as the case
may be, therefore the contention of the Respondent No. 7 is
liable to be rejected.
38. Now, insofar, the process of appointment of the
respondent no.7 is concerned, the respondent nos. 2 and 4
have failed to show that any request for panel was after ever
made by the Hon'ble Chancellor in consonance with the
statutory provision made therein in the Section 15 of Bihar
State University Act, 1976. Moreover, with regard to the
contention raised by the respondent no. 7 that such request is
not mandatory as the Section 15 of the Bihar State University
Act, 1976 used the phrase "may" and it does not use the word
"shall", is quite misplaced and appears to be based on
erroneous interpretation of Section 15 of the Bihar State
University Act, 1976 .
39. It is settled position of rule of interpretation that may can
be used as shall and shall can be used as may depending on
intent of the statute. Applying this rule of interpretation on
Section 15 of the Bihar State University Act, 1976, I find the
if the phrase may is merely read as directory such an
interpretation shall give rise to room of subjectivity and
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
opaqueness. The intent of prescribing a process for demand of
a panel makes the entire process of appointment transparent
and it ensures that different stakeholders have suggestions to
offer so that the appointment is made from a panel of eligible
candidates whereas on the other hand if such process is
merely reduced to directory, then such a process will always
be open to abuse when any appointment can be made in an
absolute opaque and subjective manner. Having considered
both the propositions, I am of opinion that the intent of the
statute can never be to encourage a opaque practice or process
of appointment whereas the true spirit of the statute is to
ensure transparency which is also ins best academic interest
of the concerned university. The case of Mohan Singh and
Ors. vs. International Airport Authority of India and Ors.
(Supra) has already been discussed in preceding paragraphs.
40. If the contentions of the respondents are to be accepted
that then a similar situation may arise as it has arose in the
instant case where an order be passed for appointment of any
person without there being any cogent reasons for the same or
without even being anything to show as to why was such
person considered for the post. I am of the opinion the
contention of the Respondents are liable to be rejected as if
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
the usage of may in the Section 15 of Bihar State University
Act, 1976 is read a merely directory, then such an
interpretation will be contrary to the intent and spirit of the
statute and therefore I hold that the may used in the Section
15 of Bihar State University Act, 1976 is mandatory in nature.
41. In view of the factual and legal aspects as enumerated in
the foregoing paragraphs, I come to the conclusive finding
that relieving the petitioner from the post of Registrar of
B.R.A. Bihar University amounts to removal / termination in
total disregard to the procedure provided therein terms of
letter issued by Hon'ble Chancellor's office and as such is
bad in law as well as the appointment of respondent no.7 in
his place as Registrar of B.R.A. Bihar University in spite of
her being ineligible in flagrant violation of the statutory
mandatory requirement as contained in Section 15 of Bihar
State University Act, 1976 is unsustainable in eyes of law and
as such both the above orders, as contained in Memo No.
BSU (Registrar)-06/2023-948/GS(I) dated 18.06.2024, Memo
No. B/1612 dated 19.06.24 and Memo No. B/1620 dated
20.06.2024 are hereby quashed and set aside and the
petitioner is, accordingly, reinstated to the post of Registrar,
B.R.A. Bihar University with immediate effect.
Patna High Court CWJC No.10496 of 2024 dt.14-02-2025
42. In the result, the writ petition is allowed in aforesaid
terms but there shall be no order as to costs.
(Anjani Kumar Sharan, J)
Trivedi/-
AFR/NAFR AFR
CAV DATE 10.01.2025
Uploading Date 14.02.2025
Transmission Date NA
