Rajendra Agriculture University Shikshak Manch v. Chancellor, Rajendra Agriculture University
1994-03-17
S.N.JHA
body1994
DigiLaw.ai
JUDGMENT S.N. Jha, J. The facts of the case are short and the controversy is shorter. This application has been filed for issuance of writ of certiorari to quash the order of the Chancellor of the Rajendra Agriculture University ('the University', in short) contained in the letter dated 6.2.1992, Annexure-1, staying operation of the statute, called Time Bound Promotion Scheme for the Teaching Staff of the University and for mandamus to the respondents to consider the cases of the teacher members of the petitioner-Association for promotion in terms of the said Statute. 2. It is said that in order to remove stagnation in service and provide impetus to its teachers the University decided to frame Statute for time bound promotion and, accordingly, the Board of Management of the University in its meeting held on 22.7.89 framed a Statute. It is said that other Agriculture University of the State namely, Birsa Agriculture University also adopted the same Statute which is accordingly, called 'Common 'Statute'. The Statute was placed before the Chancellor for assent under Section 36(2) of the Bihar Agricultural University Act, 1987 (Act 8 of 1988) ('the Act, in short). It is said that the Chancellor referred the matter to the State Government, although that is not the requirement of law. Nevertheless the Council of Ministers approved the same on 22.12.90. The Chancellor finally gave his assent as required under Section 36(2) of the Act which was communicated by Memo elated 17.8.91, Annexure-3. According to the petitioner, the Statute, namely, Time Bound Promotion Scheme was notified by the University on 4.9.91 and, thus, came into effect. While the Board of Management was about to consider the cases of the selected teachers for promotion suddenly the Chancellor issued the impugned order on 6.2.92 'pending' the said Statute till further orders on the ground that the whole matter was under review and further consideration. 3. Mr. A.B. Ojha learned counsel for the petitioner. submitted that the Chancellor having already given his assent in terms of Section 36(2) of the Act and the Statute having already come into force, he has no jurisdiction to pend it depriving the eligible persons of the benefits of the Time Bound Promotion Scheme under the Statute. Mr.
3. Mr. A.B. Ojha learned counsel for the petitioner. submitted that the Chancellor having already given his assent in terms of Section 36(2) of the Act and the Statute having already come into force, he has no jurisdiction to pend it depriving the eligible persons of the benefits of the Time Bound Promotion Scheme under the Statute. Mr. Y.V Giri learned counsel appearing for the Chancellor on the other hand, contended that in terms of Section 36 (4) of the Act all Statutes are required to be published in the official Gazette and since the Statute in question was never published in the official Gazette. it cannot be deemed to have come into force and thus no right can be deemed to have accrued in favour of any person. In the circumstances the Chancellor was fully competent to issue the impugned order. 4. Section 36 of the Act reads as follows: "36. Statutes how made - (1) The Board of Management may, from time to time make new or additional statutes or may amend or repeal the Statutes in the manner hereinafter provided in this section : Provided that the Board of Management shall not make any statute or any amendment to a Statute affecting the status powers or constitution of any existing authority until such authority has been given an opportunity of expression of opinion on this proposal and any opinion so expressed shall be in writing and shall be considered by the Board of Management : Provided further that no Statute shall be made by the Board of Management affecting the discipline of instruction, education and examination except after consultation with the Academic Council. (2) Every new Statute or addition to the Statute or any amendment or repeal of a Statute shall require the approval of the Chancellor, who may assent thereto or withhold assent or remit the same to the Board of Management" for reconsideration. (3) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Chancellor.
(3) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Chancellor. (4) All Statutes made under this Act shall be published in the official Gazette." A bare perusal of the provisions would show that the Board of Management (as defined in the Act) may, from time to time, make new or additional Statute or amend or repeal the Statute in terms of sub-section (1) of Section 36 subject to the approval of the Chancellor who may either give his assent or withhold it or remit the same back to the Board of Management for reconsideration. There is no dispute so far as this is concerned. As regards the publication of the Statute in terms of sub-section (4), Counsel for the petitioner submitted that there is definite averment in paragraph 14 of the writ petition which has not been traversed by the respondents. Paragraph 14 of the writ petition reads as follows : "Accordingly, the aforesaid Statute namely, Time Bound Promotion Scheme came into force having been notified by the respondent University under notification No. 106 dated 4.9.91." In my opinion the above statement cannot be read to suggest that the requirement of sub-section (4) of Section 36 has been complied with. What the said provision requires is publication of the Statute in the 'official Gazette'. Paragraph 14 merely mentions about some notification issued by the University. The term 'official gazette' or gazette' has been defined in the General Clauses Act, 1897 to mean "the Gazette of India or the Official Gazette of a State." In the absence of any specific averment made in paragraph 14 or elsewhere of the writ petition regarding publication of the Statute or notification in the official Gazette, the petitioner cannot argue that on the basis of the so-called un-traversed statement a conclusion should be drawn in its favour that the Statute has been duly published. 5.
5. The Ordinary meaning of the word 'notify' is "to make known, to declare, to give notice or information of" and that of the word 'notification' is "the act of notifying, the notice given, the paper containing the notice" Section 36 (4) of the Bihar & Orissa General Clauses Act, 1917 defines 'notification' to mean "a notification in the Gazette." According to Section 28 of that Act: "Where in any Bihar and Orissa Act or Bihar Act or any rule made under any such Act it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides be deemed to be duly made if it is published in the Gazette." Thus, the provision contained in subsection (4) of Section 36 of the Act read with Section 28 of the Bihar & Orissa General Clauses Act further read with Section 3 (39) of the (Central) General Clauses Act, 1897 leaves no room for doubt that publication of the Statute in any other manner than in the official Gazette of the State cannot be said to be true and legal compliance of the requirement. 6. Counsel for the petitioner, however, submitted that the Statute was sent to the Government press at Gulzarbagh, Patna on 4.9.91 for publication in the official Gazette and, therefore, inference should be drawn that it must have been duly published in the official Gazette. The decision in the case of Mahnar Notified Area Committee vs. The State of Bihar (1968 PLJR 582) provides a complete answer to the submission. In that case the constitution of the Mahnar Notified Area Committee and nomination of its members was notified in official Gazette on 13.3.68. Later the notifications were rescinded by notification dated 10.5.68. When the validity of the notification dated 10.5.68 was impugned the State took the stand that the Notified Area Committee and nomination of its members had already been made earlier by notifications dated 16.1.68 and therefore, the subsequent notifications dated 13.3.68 were not legal as the members of the Committee constituted earlier on 16.1.68 could not be removed and the creation of the Notified Area Committee could not be cancelled. It was found as a fact that the notifications dated 16.1.68 had been printed in the official Gazette but not published.
It was found as a fact that the notifications dated 16.1.68 had been printed in the official Gazette but not published. Dealing with the effect of the notification dated 16.1.68 the Division Bench held : "Mere printing the notification in the official Gazette and keeping it in the Almirahs of the Government Printing Press or the Secretariat cannot mean a notification in the official Gazette within the meaning of Section 4 (36) of the (State) General Clauses Act read with Section 28 of that Act. It must mean publication in the Official Gazette. That being so, it is manifest that the January notifications, which according to my unhesitating view were merely printed in the official Gazette, but were not published, cannot be said to have in the eye of law constituted a Notified Area or appointed a Committee for the purpose of the Municipal Act in that area." If printing of the notification in the official Gazette was not held to be due compliance of law because it had not been 'published' in the official Gazette it would be difficult to uphold the contention that merely because the Statute in question was sent to the Government Printing Press on 4.9.91 for the purpose of publication in the official Gazette there would be due or deemed compliance of requirement of Section 36 (4) of the Act read with Section 28 of the Bihar & Orissa General Clauses Act. 7. On the aforesaid premises I have no hesitation in holding that the Statute in question never came into force on or before 6.2.1992 when the impugned order staying the operation of the Statute came to be issued. In this view of the matter, the Statute cannot be said to have conferred any legal right upon any person or created a cause of action for maintaining the present writ petition. 8. This writ petition is, accordingly, dismissed but without any order as to costs. 9. Before I part with this case, I would like to clarify that the impugned order dated 6.2.92 being an interim order this judgment would not stand in the way of the Chancellor in taking appropriate decision in the matter in future in accordance with law.