Parsuram Upadhaya v. Chancellor, Patna University — 1991 DIGILAW 299 (PAT)

Judgment G. C. Bharuka, J. 1. These two writ applications arise out of the same set of facts and involve common questions of law and, accordingly, both the writ applications have been heard together and are being disposed of by this common judgment. 2. C. W. J. C. No.6055 of 1990 has been filed by three petitioners for issuance of a writ of mandamus commanding the Vice-Chancellor, Patna university, to post the petitioners at Patna Womens College, Patna, in pursuance of the order of transfer dated 11th August, 1990, issued by the chancellor, as contained in Annexure-1 to this application. 3. C. W, J. C. No.7131 of 1990 has been filed by some of the teachers of Patna University, inter alia, Challenging the aforesaid order of transfer (Annexure ! of C. W. J. C. No.60s5 of 1990) passed by the Chancellor. 4. For the sake of convenience, the transferred petitioners, who have filed C. W. J. C. No.6055 of 1990 will, hereinafter be referred to as petitioners" and the teachers of the Patna University, who have filed C. W. J. C. No.7131 of 1990, will, hereinafter be referred to as, "objectors. " 5. Relevant facts are these, Patna Womens College is one of the colleges under Patna University. The petitioners, for certain length of time, had worked as teachers on ad hoc basis in the Patna Womens College. Pursuant to an advertisement issued by the State University Service commission for filling up the vacant posts of lecturers in the different Colleges under Magadh University, the petitioners-teachers applied for the same. After interview, they were selected by the State University Service commission and, accordingly, they were appointed as teachers in the Colleges at nawadah and Arrah under Magadh University. According to the petitioners since they were facing great hardship in their research work and in managing their domestic matters because of their postings at the places outside Patna, therefore, they made representations to the Chancellor for their transfer in Patna Womens College through the Principal of the said college. Photo copies of thess representations have been filed as Annexure-"b" series with the counter affidavit filed on bshalf of the Respondents-Chancellor and the State of Bihar. 6. The impugned orders of transfer dated 11th August, 1990, referred to above, was admittedly passed by the Chancellor on the basis of the aforesaid representations. Photo copies of thess representations have been filed as Annexure-"b" series with the counter affidavit filed on bshalf of the Respondents-Chancellor and the State of Bihar. 6. The impugned orders of transfer dated 11th August, 1990, referred to above, was admittedly passed by the Chancellor on the basis of the aforesaid representations. These transfers have been made by the Chancellor in purported exercise of his powers under Sec.9 (7) (i) of the Bihar State universities Act, 1976, read with Sec.10 (7) (i) of the Patna University act, 1976. By this order of transfer the three petitioners have not only been transferred from Magadh University to Patna University but the chancellor has also been pleased to post them in the Patna Womens College. It further appears that after the impugned order of transfer was passed and communicated to the Vice-Chancellor of the Patna University, he by his letter dated 17th August, 1990, (Annexure C) addressed to the Commissioner-cum-secretary, Rajbhawan, expressed his protest against these transfers referring therein the past practice as also the complicities involved and made a request to the Chancellor to reconsider his decision. A protest was also lodged by the Patna University Teachers Association (Fort short PUT A) on that very date vide Annexure-B, on 19-8-1990 the Executive Committee of puta also passed a resolution expressing strong resentment and anguish over the impugned orders of transfer passed bv the Chancellor and requested the vice-Chancellor to communicate their resentment to the Chancellor with a request to withdraw the transfers orders. A threat was also given that if the impugned orders of transfer are not withdrawn then they will go on strike, under these circumstances, according to the Vice-Chancellor, the impugned orders of the petitioners remained unexecuted. 7. Faced with the above situation, the petitioners have filed C. W. J. C. No.6055 of ! 990 for enforcement of the order of transfer. On the other hand the objectors, who are members of PUTA apart from filing Intervenor petition in C. W. J. C. No.6055 of 1990 they have also filed a separate writ petition being C. W. J. C. No.7131 of 1990 challenging the power of the chancellor to transfer the petitioners of the other Universities to Patna university on various grounds, 8. Shri S. P. Mukherjee, learned counsel appearing on behalf of the objectors has assailed the impugned orders of transfer on the following grounds : " (i) Repeated repromulgation of the ordinances conferring power of transfer on the Chancellor amounts to colourable exercise of legislative power and is violative of Article 13 of the constitution in view of the Supreme Court decision in Wadhaws case. (ii) The provision conferring power of transfer of teachers on the chancellor is unbridled, arbitrary and unguided and, therefore, the same is violative of Article 14 of the Constitution. (iii) The Universities Acts in question do not clothe the Chancellor with the power to transfer the teachers of Universities governed by Bihar Universities Act, 1976, to Patna University, which is governed by Patna University Act, 1976. (iv) The impugned orders of transfer are violative of the guidelines (Annexure-9 to C. W. J. C. No.7131 of 1990) laid down by the chancellor himself for exercise of the statutory power of transfer inasmuch as the impugned transfer has been made without processing the representation of the petitioners through "proper channel. " 9. On the other hand, Mr. Basudeo Prasad, learned counsel appearing for the petitioners and Mr. Ram Balak Mahto learned Advocate General, appearing for the Respondent-Chancellor and the State Government have supported the orders of transfer and have submitted that none of the grounds urged by Mr. S. P. Mukherji are tenable in law and the Vice-Chancellor of the Patca University is bound to post the petitioners in Patna Womens college. Mr. Rafat Alam has appeared for the Vice-Chancellor of Patna university and has reiterated the stand taken by the Vice-Chancellor in his letter to the Chancellor. 10. For proper appreciation of rival contentions of the parties, it will be necessary to first refer to the statutory provisions of the relevant Acts. There are two relevant Acts, namely. The Patna University Act, 1976 (Bihar Act 24 of 1976) (hereinafter to be referred to as the Patna University act) and the Bihar State Universities Act, 1976 (Bihar Act 23 of 1976) (hereinafter to be referred to as the State Universities Act ). 11. Section 2 of the Patna University Act is the definition section. I may quote some of the relevant definitions, namely, section 2 (d) "chancellor" means the Chancellor of the University. Sec.2 (k) "principal" means the head of a College. 11. Section 2 of the Patna University Act is the definition section. I may quote some of the relevant definitions, namely, section 2 (d) "chancellor" means the Chancellor of the University. Sec.2 (k) "principal" means the head of a College. Sec.2 (r) "teacher" includes Principal, University Professor. College professor, Reader, Lecturer, Demonstrator and other persons imparting instructions in any department, or in any College or institute maintained by the University. Sec.2 (u) "university" means the University established and incorporated under Sec.3 of this Act. 11-A. Sec.3 (1) of the Patna University Act provides that there shall be established with effect from the date of commencement of this Act, a university by the name of Patna University with headquarters at Patna. Sec.10 of the Patna University Act provides that the Governor of Bihar shall be Chancellor and shall by virtue of his office, be the head of the university and the President of the senate and at any conviction of the university. Sec.11 (5) of the Patna University Act, inter alia, provides that the Vice-Chancellor shall be the principal executive and academic officer of the University. 12. A new sub-section (7) was inserted to Sec.10 of the Patna university Act, which provides as follows : - "7 (i) The Chancellor shall have the power to transfer the officers and teachers of the Universities from one University to another or in the same University on the same or on any other equivalent post. The transferees shall retain their respective seniority. (ii) The Chancellor shall have the power to issue direction to the universities in the administrative or academic interest of the universities which he considers to be necessary. The direction issued by the Chancellor shall be implemented by the Vice-Chancellor, Syndicate, senate and other bodies of the Universities, as the case may be. (iii) Any person aggrieved by such order of the Chancellor may file representation to the Chancellor, who on consideration of the representation, shall have the power to affirm, modify or rescind his earlier orders which he may deem fit and proper. (iii) Any person aggrieved by such order of the Chancellor may file representation to the Chancellor, who on consideration of the representation, shall have the power to affirm, modify or rescind his earlier orders which he may deem fit and proper. " This ordinance was repromulgated three times in 1986 by Ordinance Nos.2, 7 and 28 of 1986, two times in 1987 by Ordinance Nos.12 and 20 of 1987, two times in 1988 by Ordinance Nos.5 and 11 of 1988, two times in 1989 by ordinance Nos.7 and 17 of 1989 and four tiroes 1990 by Ordinance Nos.1, 9, 13 and 22 of 1990. 13. In the counter affidavit filed on behalf of the State it has been stated that the necessary bill for the enactment of the provisions of the ordinance was introduced in the State Legislature in August 1989, but the same is still pending consideration. 14. Now, coming to the provisions of the Bihar State Universities act, 1976, (hereinafter to be referred to as State Universities Act ). Sec.2 is the definition section. Some of the relevant definitions are as follows : -Section 2 (e) "chancellor" means the Chancellor of the University. Sec.2 (rn) "principal" means the head of a College. Sec.2 (v) "teacher" includes Principal, University Professor, college Professor, Reader, Lecturer, Demonstrator and other person imparting instruction in any department. College or institute Maintained by the University. Sec.2 (y) "university " means the University established and incorporated under Sec.3 of this Act. 15. Section 3 of this Act provides that with effect from the commencement of this Act, there shall be established the following Universities, namely, (a) The Bihar University, (b) The Bhagalpur University, (c) The Ranchi University, (d) The Magadh University, (e) The Lalit Narain Mithila University, and (f) The Kameshwar singh Darbhanga Sanskrit University. 16. A new sub-section (7) has been inserted to Sec.9 of the State universities Act, which provides as follows : - " (7) (i) The Chancellor shall have the power to transfer the officers and teachers of the Universities from one University to another or in the same University on the same or on any other equivalent post. The transferees shall retain their respective seniority ; (ii) The Chancellor shall have the power to issue direction to the universities in the administrative or academic interest of the universities, which he considered to be necessary. The transferees shall retain their respective seniority ; (ii) The Chancellor shall have the power to issue direction to the universities in the administrative or academic interest of the universities, which he considered to be necessary. The direction issded by the Chancellor shall be implemented by the Vice-Chancellor, Syndicate, Senate and other bodies of the Universities as the case may be. (iii) Any person aggrieved by such order of the Chancellor may file representation to the Chancellor, who, on consideration of the representation, shall have the power to affirm, modify or rescind his earlier orders which may deem fit and proper. " The above sub-section was first inserted by an ordinance in 1986 (Ordinance no.3 of 1986), which retained on the statute book by repromulgation of ordinances and has been ultimately incorporated in the Bihar State Universities (Amendment) Act, 1990 (Bihar Act No.3 of 1990 ). 17. A reference to the provisions of the above referred two Acts (State universities Act and the Patna University Act) shows that according to the hierarchy created by the statute, a teacher of the College is under the immediate administrative control of the Principal of the College, who, in his turn, is subordinate to the Vice-Chancellor of the University and above all is the chancellor being the head of the Universities. This is the organisational structure of Universities envisaged by the legislature. 18. Now, so far as the Stats Universities Act is concerned, sub-section (7) of Sec.9 of the Act, empowers the Chancellor to transfer the teachers of the Universities from the University to another. The expression "university" as defined under the State Universities Act, does not include patna University. Therefore, on a plain perusal of the provisions of the state Universities Act, it is amply clear that the Chancellor does not possess any power to transfer the teachers of the Universities covered by this Act, which includes Magadh University, to Patna University. In this connection learned Advocate General appearing for the Collector and the State of Bihar as also Mr. In this connection learned Advocate General appearing for the Collector and the State of Bihar as also Mr. Basudeo Prasad, learned counsel appealing for the petitioners have submitted that since the definition section provides that the definitions contained therein are preceded by "unless there is anything repugnant in the subject or context, "therefore, keeping in view the context it should be held that the expression" "university" used under this sub-section takes within its ambit even Patna University thereby empowering the Chancellor to make transfer from any University to another University and vice versa, even if such universities are not incorporated and administered by the provisions of this Act. 19. In my opinion the word "university" as used under the Bihar state Universities Act, 1976, can not be held to include Patna University for the purpose of sub-section (7) of Sec.9 of this Act. Keeping ia view the established principles of interpretation, there is nothing repugnant to the context, which necessitates any deviation from the plain definition of the word "university" set out under the State Universities Act. According to me, reading of Patna University in the definition of "university" under the state Universities Act, will by itself contrary to the intention of the legislature. Patna University is a teaching University whereas the Universities incorporated under the State Universities Act are affiliating Universities. The two Acts constitute two different classes of Universities. Therefore, it was quite reasonable on the part of the legislature to provide for inter-university transfer of teachers only amongst the affiliating Universities. 20. At this stage, learned Advocate General pointed out that if the same reasoning is extended for interpretation of the newly inserted subsection 7 of Sec.10 to the Patna University Act, then it will create anomaly. The reasons for this submission is that though under Patna University act the expression "university" means only Patna University but subsection (7)of Sec.10 of the Patna University Act, empowers the chancellor to make transfer of teachers of the Universities from one University to another University. According to the learned Advocate General if the word "university" used under the Patna University Act means only Patna university then why the legislature has used plural expression "teachers of the universities" and has further provided for transfer from one University to another University. According to the learned Advocate General if the word "university" used under the Patna University Act means only Patna university then why the legislature has used plural expression "teachers of the universities" and has further provided for transfer from one University to another University. The learned Advocate General seems to be correct to the extent that the insertion of sub-section (7) to Sec.10 of the Patna university Act exactly in the same terms as is done under the State universities Act, does not stand to reason. Apparently there seems to be some error on the part of the draftsman which is quite usual now a days. If the makers on the law wanted to empower the Chancellor to effect transfer of teachers inter-se between Patna University and the Universities constituted under the State Universities Act, they could have spelt out their intention by making a clear provision in the respective Acts. But this has not been done. 21. Moreover, ia the present case, it is not necessary to consider and construe the provisions of the Patna University Act because the petitioners in the present case are admittedly teachers of Magadh University governed by the provisions of the State Universities Act. As held above, there is no ambiguity in the provisions of sub-section 7 of Sec.9 of the State Universities act providing for transfer. This Act does not empower the Chancellor to transfer the teachers of t the Universities governed by this Act to Patna university and this is enough for the determination of the question involved in the present case. 22. Mr. S. P. Mukherji Sr. Advocate appearing for the objectors, has further submitted that the impugned order passed by the Chancellor is in flagrant violation of the norms and guidelines laid down by the Chancellor himself in respect of inter-university transfers and, therefore, the transfers in question should be held to be tainted with arbitrariness and violative of article 14 of the constitution. According to Mr. Mukherji, as per the communication dated 23rd of February, 1987, issued to all the Vice-Chancellors of the Universities of Bihar (Annexure-9 of C. W. J. C. No.7131 of 1990), the Chancellor has laid down guidelines for considering the proposals and requests for inter-university transfer of teachers. In the guideline apart from setting out the grounds for transfer, it has been specifically laid down that if the applications for transfer are not. In the guideline apart from setting out the grounds for transfer, it has been specifically laid down that if the applications for transfer are not. received through proper channel, it will not be considered. It has also been provided therein that the teachers seeking transfer should submit their application through proper channel and should not try to bring outside influence or pressure. 23. For answering this question, as raised by Mr. Mukherji, it will be necessary first to consider two ancillary questions, namely, (i) What is meant by the expression filing the applications through proper channel and (ii) Whether any violation of non-statutory guidelines could annul the statutory actions ? 24. It is a well established rule of interpretation that in dealing with matter relating to general public, statutes are presumed to use words in their popular sense, and they should be given their ordinary, natural and familiar meaning. Popular sense means that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it (See jagdish Swaroop on Legislation and Interpretation at page 135, 4th Edition ). In my opinion the same rule of interpretation has to be applied while construing words and phrases used in non-statutory rules meant for observance of public authorities and statutory functionaries. 25. The expression filing the application through proper channel has not been defined statutorily or otherwise. But the expression is well understood by all concerned, who are in service either of the Government or corporations and institutions like Universities. It has always been understood as meaning to move the Superior authorities through hierarchical channel. For example, if a teacher of the University wants to file an application before the Chancellor, the application must go through the Principal of the College and the Vice-Chancellor of the University. There is also a purpose behind this. The Chancellor to whom the application is addressed, in normal course, can not be expected to have any knowledge about the teacher, who files the application or about the attending circumstance, the knowledge whereof is necessary for giving the relief sought for. There is also a purpose behind this. The Chancellor to whom the application is addressed, in normal course, can not be expected to have any knowledge about the teacher, who files the application or about the attending circumstance, the knowledge whereof is necessary for giving the relief sought for. Therefore, when the application goes through the authorities in the hierarchy, to the decision taking authority, then the immediate or the intermediate authority, has the occassion of giving his opinion on the matter keeping in view the interest of the applicant as well as of the institution like the College or the University. This facilitates in arriving at a clear and fair decision. This also helps in maintaining an effective control over the institution which is essential for proper administration thereof. 26. The concept and importance of maintaning hierarchy in an administrative set up of a big organisation has been well defined and emphasised in the field of public administration. The requirement of moving the application through proper channel i. e. through immediate and intermediate superiors also fulfills another requirement, namely, principle of natural justice. If the application with regard to certain matters concerning the college or the University, before being entertained by the Chancellor, goes to the Principal of the College and to the Vice-Chancellor of the University, then they get an opportunity to express their opinion on the point as to whether the prayer made in the application, if allowed, will be in the interest of the College and the University. If the decision is taken only on the application of a teacher of the College directly by Chancellor without seeking any opinen of the Principal of the College or the Vice-Chancellor of the University then apart, from the fact that such decision may be bad for being arrived at arbitrarily at ones sweet will, it may also be rendered had because the decision may adversely affect the interest of the respective institution thereunder the teacher had been working. 27. I will immediately demonstrate that if the procedure of moving through proper channel is not adhered to, then how it can vitally affect the interest of the institution. In the present case itself, on the admitted facts the three petitioners have been transferred from the Colleges of their regular. 27. I will immediately demonstrate that if the procedure of moving through proper channel is not adhered to, then how it can vitally affect the interest of the institution. In the present case itself, on the admitted facts the three petitioners have been transferred from the Colleges of their regular. appointments to Patna Womens College without even caring to consider the interest of the respective Colleges and the University under which the petitioners were absorbed against permanent vacancies through settled process and procedures of appointment, one of the reasons for making the transfers in question seems to be that according to the Principal of Patna Womens college the petitioners were very good teachers/and since for a long time there was vacancy in her college, therefore, the same should be filed up bv transfer of the petitioners. While acceding to this request and recomendation of the Principal of Patna Womens College it was completely lost sight of that these three petitioners had been absorbed in their respective colleges under Magadh University after following the settled process and procedure of appointment against Vacancies in permanent posts. The impugned transfer would not only again create vacancies in those colleges where the petitioners have been absorbed but also seriously affect the interest of the students of those Colleges and also of the University. Apart from this, if the petitioners are really good teachers then why the University and the colleges, who had opted to appoint them after observing all the required long drawn formalities, should be deprived of their services even without consulting the authorities of those institutions. Evidently, the transfers in question have adversely affected the interests of those institutions where the petitioners were absorbed. Therefore, before effecting any such order of transfer, it was incumbent upon the Chancellor to obtain the views and opinion of the authorities of those Colleges and the University. This would have been fulfilled by routing the application through proper channel. Consequently, neither it was proper on the part of the writ petitioners to route their applications through the Principal of Patna Womens College nor the Principal of Patna Womens College could have either entertained or forwarded the applications of the petitioners to the Chancellor because admittedly the petitioners were not working under the Principal of Patna womens College. The Principal of Patna Womens College was not the administrative head of the petitioners. The Principal of Patna Womens College was not the administrative head of the petitioners. The process adopted in the present case cannot be justified from any point of view. What is more strange in this case is that even the Principal of Patna Womens College after having received the applications of the petitioners in stead of sending the same tc the Vice-Chancellor of Patna University forwarded the same directly to the chancellor. This is a clear case of gross administrative indiscipline. Adoption of such a process clearly speaks of mala-fides at one end or the other. 28. Keeping all the above facts in view, I hold that the applications of transfer were not filed by the petitioners in accordance with the norms and procedures laid down by the Chancellor himself, which are contianed in annexure-9 to the writ petition filed by the objectors. 29. Now coming to the second part of this question as to whether the impugned order of transfer, which has been passed on the applications filed in violation of the norms and procedures laid down in Annexure 9, referred to above, can be sustained in law. The answer to be in emphatic "no". It is now well established that where there is a defined procedure, even without statutory force, it must be scrupulously observed and non-observance results in rendering the act void being Siolative of Article 14 of the Constitution. In the case of Vitarelli V/s. Seaton, (1959) 359 US 535 Justice Frankfurter in his classic statement has said that, "he that take the procedural sword shall perish with that sword. " This doctrine is, of late, known as doctrine of "procedural sword" and has been accepted as one of the principle of natural justice. The Supreme Court has referred the aforesaid case with approval in the case of Sukhdev Singh V/s. Bhagat Ram, AIR 1975 SC 1331 . In the case of S. S. Misras \. Indian Statistical Institute and others, AIR 1984 SC 363 , it has been said that, - "if the bye-laws have been framed for the conduct of its affairs to avoid arbitrariness, Respondent No.1 can not, therefore, escape the liability for not following procedure prescribed by bye-law. " Again the case of Sadhu Singh and others V/s. State of Punjab, AIR 1984 SC 739 it has been held that, - ". . . " Again the case of Sadhu Singh and others V/s. State of Punjab, AIR 1984 SC 739 it has been held that, - ". . . any existing executive instructions could be substituted by issuing fresh executive instructions for processing the cases of lifers for premature release but once issued, these must be uniformly and invariably applied to all cases of lifers so as to avoid the charge of discrimination under Article 14". Again the case of A. L. Kalra V/s. The Project and Equipment Corporation of india Ltd. , AIR 1984 SC 1361 , it has been held that, - "an administrative authority who purports to act by its regulation must be held bound by the regulation. Even if these regulations have no force of law the employment under these corporations is public employment and, therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulation". The objections have stated that in the part whenever any transfer was sought to be made, the application for transfer was entertained by the Chancellor only after the comments and opinions hid been received from the Vice-Chancellor of the respective Universities. I am stating it only for the purpose that non-observance of the guidelines laid down even for the procedural purposes, leads to discrimination within the meaning of Article 14 of the Constitution, and, therefore, the decision arrived at by non-observance of essential procedural requirements has to be declared as void. 30 The next part of the submission of Mr. Mukherji is that the provisions enshrined under sub-section 7 of Sec.9 of the State Universities act as also the corresponding provisions of the Patna Universities Act arc ultra vires Article 14 of the Constitution since those provisions confer unbridled, uncanalised and arbitrary power of transfer on ihe Chancellor. Learned Advocate General has sought to counter this argument by applying the "high authority" theory according to which, if any power is conferred on a high authority then in normal course, it has to be presumed that it will be exercised reasonably. It has farther been submitted that merely because there is a possibility of abuse of a statute, otherwise applied does not import to it aay element of invalidity. Mr. It has farther been submitted that merely because there is a possibility of abuse of a statute, otherwise applied does not import to it aay element of invalidity. Mr. Mukherji submits that "high authority" theory no more holds good under our constitutional law and in support of his submission, he has relied upon a recent Supreme Court judgment in the case of Delhi Transport Corporation V/s. D. T. C. Mazdoor congress, 1991 SC 101, Para 225. Since, I have already taken a view that the impugned order of transfer is unsustainable in law, therefore it is not necessary to adjudicate this issue. 31. Under the aforesaid facts and circumstances, the order of transfer of the three petitioners of C. W. J. C. No.6055 of 1990 as contained in annexure-1 to this application is quashed and the same cannot be given effect to. This writ application (C. W. J. C. No.6055 of 1990) is, accordingly, dismissed. However, it will be open for the petitioners of C. W. J. C. No.6055 of 1990 to make their applications to the Chancellor for their transfer to any of the College of Magadh University situated at Patna in accordance with law (sic ). Consequently, C. W. J. C. No.7131 of 1990 filed by the objections challenging the transfer orders of petitioners, is allowed to the extent indicated above. However, there shall be no order as to costs petitions allowed.