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2012 DIGILAW 1780 (PNJ)

Neeraj Kumar v. Union of India

2012-12-07

RAJESH BINDAL

body2012
JUDGMENT Mr. Rajesh Bindal J.: - The petitioners had filed the present petition impugning the order dated 6.9.2011 constituting the Senate of National Institute of Pharmaceutical Education and Research (for short, ‘the Institute’) and office orders dated 7.8.2007 (Annexure P-1) and 13.4.2010 (Annexure P-3) shifting the students of Ph.D. from parent departments to other departments. 2. Though initially the petition was filed by two teachers working in the Institute, who were members of the Senate, however, it was not pressed on behalf of petitioner No. 2 as he was dismissed from service and the order of dismissal was upheld by this court in C.W.P. No. 20462 of 2012, decided on 30.11.2012. 3. Learned counsel for petitioner submitted that vide orders dated 7.8.2007 and 13.4.2010 (Annexures P-1 and P-3), the departments of certain students, who were enrolled for their Ph.D. course were changed merely with the approval of Dean of the Institute. There are different eligibility conditions for enrollment for Ph.D. courses in different departments and the written test is also different. The students enrolled for Ph.D. in one department cannot possibly be transferred to another department. Some of the students were not even eligible for admissible in Ph.D. course in the transferee department considering their basic qualifications. Petitioner No. 1 filed an application under the Right to Information Act, 2005 seeking information pertaining to the policy for transfer of students in Ph.D. course. In response thereto, vide communication dated 3.1.2011, the Institute clarified that there is no policy as such regarding transfer of Ph.D. students from one department to another. A Committee has been constituted by the Director to suggest the guide-lines, which once submitted will be put up before the Senate for approval. Petitioner No. 1 had even written a letter to the Director of the Institute pointing out to him the violation pertaining to transfer of Ph.D. students from one department to another. 4. Learned counsel for petitioner further submitted that in terms of clause 3.2.3(b) of the National Institute of Pharmaceutical Education and Research Statutes (for short, ‘the Statutes’), 20% members of a Senate can request for calling of special meeting. A request to that effect was made to the Chairman of the Senate on 9.2.2011 signed by three members, but the same was not acceded to. Even the reminders dated 28.2.2011 and 3.3.2011 were also not acted upon. A request to that effect was made to the Chairman of the Senate on 9.2.2011 signed by three members, but the same was not acceded to. Even the reminders dated 28.2.2011 and 3.3.2011 were also not acted upon. A communication was sent to the Visitor of the Institute, namely, His Excellency the President of India on 22.3.2011 pointing out the irregularities. It is only thereafter that vide letter dated 29.3.2011, petitioner No. 1 was asked to submit certain papers, though details had already been furnished. The meeting of the Senate was called on 4.5.2011, which was merely a regular meeting and not special, as was requested to be summoned. The item, which was requested to be put up by petitioner No. 1, was not there. 5. With reference to challenge to the constitution of the Senate vide order dated 6.9.2011 (Annexure P-14), learned counsel for petitioner No. 1, while referring to Section 13 of the National Institute of Pharmaceutical Education and Research Act, 1998 (for short, ‘the Act’) and clause 3.2.1 of the Statutes, submitted that Senate has to be constituted strictly in terms thereof. If the constitution of the Senate is considered in the light of aforesaid provisions, the same deserves to be set aside. The violation is in terms of the nominations to be made as per Section 13(d) and (e) of the Act. The prayer is for setting aside of the order constituting the Senate and till such time a new Senate is constituted, the existing one should be ordered to be continued. 6. On the other hand, learned counsel for the respondents submitted that the petitioner No. 1 does not have any locus standi to challenge transfer of students of Ph.D. course from one department to another. He cannot be said to be aggrieved against the same. Similar is the position with regard to the constitution of the Senate. In fact, petitioner No. 1 is a chronic litigant. Most of his time is spent in courts only. He is neither working nor letting others work in the Institute. 7. As regards transfer of students of Ph.D. course to other departments is concerned, learned counsel for the respondents submitted that in fact, it is not transfer. The students are enrolled for Ph. D. course on a specified topic under a guide. He is neither working nor letting others work in the Institute. 7. As regards transfer of students of Ph.D. course to other departments is concerned, learned counsel for the respondents submitted that in fact, it is not transfer. The students are enrolled for Ph. D. course on a specified topic under a guide. With the change of students from one department to another, neither their topic has been changed nor anything else except the department. It is only for the reason that the guide under which the students were carrying on their research work had been transferred to another department. As a consequence thereof for convenience, the students were also shifted in that department. There is no question of change of eligibility condition or the department. 8. As far as calling of special meeting of Senate is concerned, no doubt, 20% members of the Senate can request for calling a special meeting. A request was received, but the same was lacking in details regarding the subject for which the meeting was to be called. Despite a communication of the Director to petitioner No. 1 on 10.2.2011, no material was supplied by petitioner No. 1 which was required for preparation of agenda for meeting of the Senate. When regular meeting of the Senate was called, the item sought to be raised by petitioner No. 1 was put up as an additional agenda, however, the same was deferred as the relevant material was lacking. 9. As far as constitution of the Senate is concerned, learned counsel for respondents No. 1 to 3 submitted that the provisions of the Act and the Statutes do not limit the number of members in the Senate. Whatever has been provided is the minimum number. Beyond that, there can be any number of members as are considered relevant by the Chairman. There is no maximum limit provided. Learned counsel did not dispute the fact that though as per Section 13(d) of the Act, one of the nominated member had to be in the field of humanities, but there is none. As regards nomination of members of Scheduled Castes and Scheduled Tribes communities is concerned, it was submitted that though Section 13(d) of the Act provides that one of the three nominated members has either to be Scheduled Castes or Scheduled Tribes, but this is the minimum requirement. As regards nomination of members of Scheduled Castes and Scheduled Tribes communities is concerned, it was submitted that though Section 13(d) of the Act provides that one of the three nominated members has either to be Scheduled Castes or Scheduled Tribes, but this is the minimum requirement. To give wider representation in the nominated list, one Scheduled Caste and one Scheduled Tribe have been nominated as members of the Senate. The other members in terms of Section 13(e) of the Act or clause 3.2.1(g) of the Statues have been nominated properly. No prejudice as such has been caused to petitioner No. 1 with the constitution of Senate, as its functions are not related with petitioner No. 1. Learned counsel further submitted that even if there is any irregularity in the constitution of Senate, in terms of Section 31 of the Act, none of the action taken by it can be termed to be invalid. 10. Heard learned counsel for the parties and perused the paper book. 11. As far as the plea raised by petitioner No. 1 regarding transfer of Ph.D. students from one department to another is concerned, the same is merely to be noticed and rejected. Firstly, petitioner No. 1 cannot be said to be aggrieved against the same and secondly, the case set up by the respondents is that there is no change in the topic and the guide. It is only because the guide was transferred to some other department, the student, who had to carry on research under his supervision, was also shifted in that department. It cannot be termed to be a change in the subject or topic, in which a student was granted admission, hence, the plea to that effect is misconceived and rejected. 12. As far as contention raised by learned counsel for petitioner No. 1 regarding non-calling of special meeting of the Senate is concerned, this court does not find any merit in the submission made. Three members of the Senate had sought to call the meeting, however, in the absence of relevant material, which was not provided despite request, the agenda could not be prepared to enable the authorities to call the meeting. Three members of the Senate had sought to call the meeting, however, in the absence of relevant material, which was not provided despite request, the agenda could not be prepared to enable the authorities to call the meeting. Even at the time of regular meeting, the material in detail could not be provided by petitioner No. 1 for consideration by the Senate and the additional item to that effect had to be adjourned, hence, there was no illegality in the action of the authorities. 13. As far as challenge to the constitution of Senate is concerned, before this court proceeds to deal with the issue on merits, it would be appropriate to refer to relevant provisions of the Act and the Statutes. The same are extracted below: “Section 13 of the Act 13. The Senate of the Institute shall consist of the following persons, namely:- (a) The Director, ex officio, who shall be the Chairperson of the Senate; (b) The Dean, ex officio; (c) five professors of the Institute, to be nominated by the Chairperson in consultation with the Director, by rotation; (d) three persons, not being employees of the Institute, to be nominated by the Chairperson in consultation with the Director, from among educationists of repute, one each from the fields of science, engineering and humanities and one of them shall be either from the Scheduled Castes or from the Scheduled Tribes; and (e) such other members of the staff as may be laid down in the Statutes. Clause 3.2 of the Statutes 3.2 The Senate 3.2.1 Composition In accordance with Section 13 of the Act the following shall be the members of the Senate: (a) Director, who shall be the Chairman of the Senate; (b) Dean, (c) Five Professors of the Institute nominated in terms of Section 13(c) of the Act. (d) Three persons, nominated in terms of Section 13(d) of the Act. (e) One Associate Professor of the Institute appointed by rotation. (f) One Assistant Professor of the Institute by rotation. (g) Head of the Department of any department unrepresented by the above. (d) Three persons, nominated in terms of Section 13(d) of the Act. (e) One Associate Professor of the Institute appointed by rotation. (f) One Assistant Professor of the Institute by rotation. (g) Head of the Department of any department unrepresented by the above. 3.2.2 Functions Subject to the provisions of the Act, the Senate shall: (a) frame and revise curricula and syllabi for the courses of studies for the various departments; (b) make arrangements for the conduct of examinations; (c) declare the results of the examinations or to appoint committees or officers to do so and to make recommendations to the Board regarding conferment of degrees and diplomas; (d) appoint Advisory Committees or Expert Committees or both for the Departments/Centres of the Institute to make recommendations on academic matters connected with their working. The Head of Departments/Centres concerned shall act as convenor of such Committee; (e) appoint Committees from amongst faculty members of the Institute and experts from outside to advise on such specific academic matters as may be referred to any such Committee by the Senate; (f) consider the recommendations of the Advisory Committees attached to various Departments/Centres and that of expert and other Committees and take such action as required; (g) periodically review the working of the Departments/Centres and take appropriate action as requied; (h) review periodically the working of the Library and Information Services/Central Instrumentation Centre and any other non-teaching department/centre and take such action as required. (i) frame such regulations and rules consistent with the Statutes and the Ordinances regarding the functioning of the Institute, admission, discipline, attendance, award of fellowships, scholarships studentships, medals and prizes, fees, residence, concessions, and campus life attendance; (j) exercise general supervision over the academic policies of the Institute and to give directions regarding method of instruction and co-operative teaching among institutions; (k) to consider matters of general academic interest either on its own initiative or on a reference by Departments/Centres or the Board and to take appropriate action thereon. 3.2.3 Meetings (a) The Senate shall meet as often as necessary but not less than once in six months. (b) The meetings of the Senate shall be convened by the Chairman of the Senate either on his own initiative or on a requisition signed by not less than twenty per cent of the members of the Senate. 3.2.3 Meetings (a) The Senate shall meet as often as necessary but not less than once in six months. (b) The meetings of the Senate shall be convened by the Chairman of the Senate either on his own initiative or on a requisition signed by not less than twenty per cent of the members of the Senate. A requisitioned meeting shall be a special meeting to discuss only those items of agenda for which the requisition is made. The requisitioned meeting shall be convened by the Chairman of the Senate on date and time convenient to him within fifteen days of receipt of requisition for such a meeting. Atleast 1/3rd of total number of members should be present in the meeting to complete quorum. (c) The Director shall preside over meetings of the Senate. In his absence the Dean shall preside and in the absence of both the Director an the Dean, the senior most Professor present shall preside. (d) The Director may call an emergency meeting of the Senate at short notice to consider urgent issues. (e) The ruling of the Chairman of the Senate in regard to all questions of procedure shall be final. (f) The minutes of the proceedings of a meeting of the Senate shall be drawn up by the Registrar and circulated to all members of the Senate. The minutes along with amendments, if any, suggested shall be placed for confirmation at the next meeting of the Senate. After the minutes are confirmed and signed by the Chairman of the Senate, they shall be recorded in a minute book which shall be kept open for inspection of the members of the Senate at all time during office hours. (g) All orders and decisions of the Senate shall be authenticated by the signature of the Registrar or any other person authorised by the Senate in this behalf.” 14. First of all, the arguments raised by learned counsel for the respondents regarding number of members of the Senate is required to be dealt with. Their contention is that the provisions provide for minimum number of members, the Senate should consist of. There is no upper limit. In my opinion, the contention raised is totally misconceived. First of all, the arguments raised by learned counsel for the respondents regarding number of members of the Senate is required to be dealt with. Their contention is that the provisions provide for minimum number of members, the Senate should consist of. There is no upper limit. In my opinion, the contention raised is totally misconceived. Section 13 of the Act clearly provides that Senate of the Institute shall consist of the Director and the Dean of the Institute (both ex officio); five Professors of the Institute to be nominated by the Chairperson in consultation with the Director by rotation; three persons not being employees of the Institute— one each from the fields of science, engineering and humanities and one of them shall either be from Scheduled Castes or Scheduled Tribes. Section 13(e) of the Act provides that the Senate shall consist of such members of staff as may be laid down in the Statutes. Clause 3.2.1 of the Statutes, which deals with composition of the Senate, while reiterating what is provided in Section 13(a) to (d) of the Act, in addition provided that one Associate Professor and one Assistant Professor of the Institute may be nominated by rotation. Clause 3.2.1 (g) of the Statutes provides that Head of the Department of any department unrepresented by any of the members earlier nominated shall also be the member of the Senate. 15. In the light of the language used in the Act and the Statutes, to state that it is open for the Chairman to nominate any number of members in the Senate beyond whatever has been provided in the Act and the Statutes is totally misconceived. The language does not suggest that whatever has been provided is bare minimum with no upper limit. The constitution of a statutory body cannot be left in such a vague terms, as is sought to be projected. A plain reading of the provisions of Section 13 of the Act read with clause 3.2.1 of the Statutes clearly shows that wide spread representation has been provided to the staff working in the Institute and the independent members as well. Clause 3.2.1(g) of the Statutes is quite in wide terms, which provides that if any Head of the Department of the Institute remains unrepresented in the Senate constituted in terms of the earlier provisions, he will also be nominated as its member. Clause 3.2.1(g) of the Statutes is quite in wide terms, which provides that if any Head of the Department of the Institute remains unrepresented in the Senate constituted in terms of the earlier provisions, he will also be nominated as its member. Under any law, no authority can be given unguided powers, where the same could be misused. Certain important functions of the Institute have been assigned to the Senate. The Parliament or the authority enacting the Statutes with prior approval of the Visitor (His Excellency the President of India), which provide for certain guide-lines, have to be adhered to strictly with no deviation. Once a statute provides for something to be done in a particular manner, all others are barred. What was left in Section 13(e) of the Act to be laid down in the Statutes was merely the number of members from the staff of the Institute, which has also been well-guided in the Statutes giving wide spread representation to all the departments in the Institute. Hence, the contention raised by learned counsel for the respondents that number as provided in the Act or the Statutes is the minimum, with no upper limit is rejected. The Senate has to be constituted strictly in terms of the provisions of the Act and the Statutes. 16. Now coming to the issue of constitution of the Senate. The orders passed on 28.8.2008 and 6.9.2011 for constitution of the Senate of the Institute are also extracted below: “Order dated 28.8.2008 No. F-256/Senate/A&E/2008 August 28,2008 ORDER In terms of Section 13 of National Institute of Pharmaceutical Education and Research Act, 1998 read with clause 3.2.1 of NIPER Statutes the competent authority is pleased to reconstitute the Senate of the Institute. Following is the revised constitution of the Committee. ----------------------------------------------------------------------------------------------------------------------------------------- 01. Prof. P. Rama Rao, Director Chairman 02. Prof. Saranjit Singh, Dean Member 03. Prof. K. K. Bhutani, HOD, Deptt. of Natural Products Member 04. Prof. K.P.R. Kartha, Prof., Deptt. of Medicinal Chemistry Member 05. Prof. S. S. Bari, Registrar, Panjab University, Chandigarh Member 06. Prof. Harmel S. Nigah, Prof. (Mech. Engg.) (Retd.), P.E.C., Chandigarh Member 07. Prof. B. B. Tondon, H. No. 3052, Sector 19/D, Chandigarh Member 08. Prof. P. Tiwari, HOD, Deptt. of Pharmacy Practice Member 09. Dr. K. B. Tikoo, Assoc. Prof., Deptt. of Pharmacology & Toxicology Member 10. Dr. Neeraj Kumar, Asstt. Prof., Deptt. of Pharmaceutics Member 11. Prof. Prof. Harmel S. Nigah, Prof. (Mech. Engg.) (Retd.), P.E.C., Chandigarh Member 07. Prof. B. B. Tondon, H. No. 3052, Sector 19/D, Chandigarh Member 08. Prof. P. Tiwari, HOD, Deptt. of Pharmacy Practice Member 09. Dr. K. B. Tikoo, Assoc. Prof., Deptt. of Pharmacology & Toxicology Member 10. Dr. Neeraj Kumar, Asstt. Prof., Deptt. of Pharmaceutics Member 11. Prof. U.C. Banerjee, HOD, Deptt. of Pharmaceutical Technology Member 12. Prof. C. S. Dey, HOD, Deptt. of Biotechnology Member 13. Dr. Anand Sharma, Assoc. Prof., Deptt. of Pharmaceutical Management Member 14. Registrar Secretary. ----------------------------------------------------------------------------------------------------------------------------------------- Order dated 6.9.2011 F-1/15(13)/2011/RGO/4578/99 06.09.2011 In terms of Section 13 of National Institute of Pharmaceutical Education and Research (NIPER) Act, 1998 read with clause 3.2.1 of NIPER Statutes the Competent Authority is pleased to reconstitute the Senate of the Institute. Following is the revised constitution of the Committee: ----------------------------------------------------------------------------------------------------------------------------------------- 01. Prof. K. K. Bhutani, Officiating Director Chairman 02. Prof. U. C. Banerjee, Dean Member 03. Dr. A. K. Chakrabarti, Prof. & Head, Department of Medicinal Chemistry Member 04. Dr. P. V. Bhartam, Prof., Department of Pharmacoinformatics Member 05. Dr. Rahul Jain, Prof., Department of Medicinal Chemistry Member 06. Dr. Arvind Bansal, Prof. & Head, Department of Pharmaceutics Member 07. Dr. K. B. Tikoo, Incharge, Department of Pharmacology & Toxicology 08. Dr. S. D. Seth, ICMR Member 09. Prof. C. Kokate, Vice Chancellor, KLE University, Belgaum Member 10. Prof. H. S. Nigah, Prof. (Mech. Engg.) (Retd.), P.E.C., Chandigarh Member 11. Prof. Bikash Medhi, Dept. of Pharmacology, PGI, Chandigarh Member 12. Dr. S. M. Jachak, Associate Professor, Department of Natural Products Member 13. Dr. (Mrs.) Elizabeth Sobhia, Asstt. Prof., Department of Pharmacoinformatics Member 14. Dr. Saranjit Singh, Prof. & Head, Department of Pharmaceutical Analysis Member 15. Dr. Pramil Tiwari, Prof. & Head, Department of Pharmacy Practice Member 16. Dr. Anand Sharma, Incharge, Department of Pharmaceutical Management Member 17. Wing Cdr. PJP Singh Waraich (Retd.) Secretary” ----------------------------------------------------------------------------------------------------------------------------------------- 17. If the constitution of the Senate as ordered on 6.9.2011 is examined, the same is not strictly in terms of the provisions. There is no dispute pertaining to the members at Sr. Nos. 1 and 2, as those are ex officio, i.e., the Director and the Dean of the Institute. Section 13(c) of the Act read with clause 3.2.1(c) of the Statutes enables the Chairperson to nominate five Professors of the Institute as members of the Senate by rotation. The persons at Sr. Nos. Nos. 1 and 2, as those are ex officio, i.e., the Director and the Dean of the Institute. Section 13(c) of the Act read with clause 3.2.1(c) of the Statutes enables the Chairperson to nominate five Professors of the Institute as members of the Senate by rotation. The persons at Sr. Nos. 7 to 7 in the list of members fulfil that condition. The irregularity is there in nomination of member under Section 13(d) of the Act read with clause 3.2.1 (d) of the Statutes. It provides for nomination of three persons not being employees of the Institute from amongst the educationists of repute, one each from the fields of science, engineering and humanities and one of them has to be either from Scheduled Castes or Scheduled Tribes. Under this provision, four members have been nominated. The same are at Sr. Nos. 8 to 11. None of them is from the field of humanities, as one is from engineering and three are from science. Out of the total four in this category, one is Scheduled Caste, whereas another is Scheduled Tribe. Under this provision, only three members could be nominated in three different subjects and one of them had to be Scheduled Caste or Scheduled Tribe, hence, to that extent the constitution of the Senate would require correction. 18. As far as clause 3.2.1(e) and (f) of the Statutes is concerned, two members nominated at Sr. Nos. 12 and 13 fulfil those conditions. 19. Under clause 3.2.1(g) of the Statutes, all Heads of the Departments, which remained unrepresented in the Senate have to be made members thereof. Though to justify the nomination of members in that category, which are from Sr. Nos. 14 to 16, learned counsel for the respondents, while referring to the book-let titled as “COURSES OF STUDY Ph.D; M.S. (Pharm.); M. Pharm; M. Tech. (Pharm.); M.B.A. (Pharm.)”, issued in July, 2012, stated that there are only ten departments, which are as under: “Medicinal Chemistry Natural Products Pharmaceutical Analysis Pharmacology & Toxicology Pharmaceutics Biotechnology Pharmaceutical Technology Pharmacy Practice Pharmacoinformatics Pharmaceutical Management” 20. On the other hand, learned counsel for the petitioner had referred to a notification issued by the Institute on 20.1.2010 providing information regarding Masters’ and Ph.D. programmes in different departments/ disciplines. In terms of the aforesaid notification, there are 14 departments for Masters’ programme and 11 departments for Ph.D. programme. On the other hand, learned counsel for the petitioner had referred to a notification issued by the Institute on 20.1.2010 providing information regarding Masters’ and Ph.D. programmes in different departments/ disciplines. In terms of the aforesaid notification, there are 14 departments for Masters’ programme and 11 departments for Ph.D. programme. The relevant part of the notification is extracted below: “Masters’ Programme Medicinal Chemistry Natural Products Traditional Medicine Pharmaceutical Analysis Pharmacology & Toxicology Regulatory Toxicology Pharmaceutics Biotechnology Pharmacoinformatics Pharmacy Practice Pharmaceutical Technology (Biotechnology) Pharmaceutical Technology (Formulations) Pharmaceutical Technology (Bulk Drugs) M.B.A. (Pharm.) Ph. D. Programme Medicinal Chemistry Natural Products Pharmaceutical Analysis Pharmacology & Toxicology Pharmaceutics Biotechnology Pharmacoinformatics Pharmacy Practice Pharmaceutical Technology (Biotechnology) Pharmaceutical Technology (Formulations) Pharmaceutical Technology (Bulk Drugs)”. 21. The submission of learned counsel for the respondents was that out of 10 departments in the Institute, as specified in the book-let, referred to above, only three departments remained unrepresented, hence, the Heads thereof were nominated to the Senate, whereas as per the stand of learned counsel for the petitioner, there are 14 departments. This court would not like to record a definite finding on the issue as to the number of departments in the Institute. It is an institute of national importance manned by experts. This court would only emphasise that under clause 3.2.1(g) of the Statutes, the Head of any of the departments, which remained unrepresented as member of the Senate be also nominated. The final decision shall be taken by the authority concerned considering the number of departments in the Institute. 22. For the reasons mentioned above, it is held that the constitution of Senate of the Institute is not as per the provisions of the Act and the Statutes. The same needs to be re-notified after corrections. Let an exercise to that effect be carried out expeditiously and if possible before the next meeting of the Senate. 23. Before parting with the judgment, this court would like to record that from the record which was produced in Court it was found that wherever the officers including even the Chairman, Director or Dean of the Institute had apparently signed, their names and designations had not been mentioned. Learned counsel appearing for the Institute had to be asked about the person who had appended his signatures at a particular place. Learned counsel appearing for the Institute had to be asked about the person who had appended his signatures at a particular place. If old files are to be examined after a time gap, it may become difficult to find out the name of the person signing a document or file. To avoid such difficulties, this court had issued certain directions on 7.3.2011 in R.F.A. No. 734 of 2011 State of Haryana Vs. Gurdev Singh, which are extracted below: “In addition to this, what has been noticed is that even in the written statements/replies filed in court on behalf of the respondents, who have been impleaded by virtue of their office, the authorised officer, who signs such written statement or reply, does not disclose his identify by mentioning his name and designation, which makes it difficult to find out as to who signed the pleadings, in case the same is required later on. It is desirable that the officers, who sign written statements/replies on behalf of any official respondent disclose their complete identity.” The Institute in future should follow the above directions as a rule even dealing with official files. 24. The writ petition is disposed of accordingly.