Patna High Court
Reena Kumari vs The State Of Bihar on 8 October, 2024
Author: Anjani Kumar Sharan
Bench: Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10935 of 2021
======================================================
1. Reena Kumari, Daughter of Sharvan Kumar Singh, Resident of Binova
Nagar, Behind A.N.M.C.H., P.S.- Magadh Medical, District- Gaya.
2. Mozaffar Ahmad, Son of Khelafat Hussain, resident of Chatarghat, P.S.-
Chakand, District- Gaya.
... ... Petitioners.
Versus
1. The State of Bihar through the Principal Secretary, Department of
Education, Government of Bihar, Patna.
2. The Special Secretary, Education Department, Govt. of Bihar, Patna.
3. The Magadh University, Gaya through its Registrar.
4. The Vice Chancellor, Magadh University, Gaya.
5. The Registrar, Magadh University, Gaya.
6. The Principal, Mirza Ghalib College, Gaya.
7. Mirza Ghalib College, Gaya through its Secretary, Governing Body
8. The Governing Body, Mirza Ghalib College, Gaya through its Secretary.
9. Shabi Arfeen Shamsi Male, aged about not known to the Petitioners,
Presently posted as Secretary, Governing Body, Mirza Ghalib College, Gaya.
10. Akeel Ahmad Male, aged about not known to the Petitioners, Presently
posted as Assistant Professor, in the Department of Chemistry, Mirza Ghalib
College, Gaya.
11. Md. Shabbir Alam, Male, aged about not known to the Petitioners, Presently
posted as Assistant Professor, in the Department of Persian, Mirza Ghalib
College, Gaya.
... ... Respondents.
======================================================
Appearance :
For the Petitioners : Mr. Tej Bahadur Singh, Senior Advocate
Mr. Prince Kumar Mishra, Advocate
For the Respondent Nos.7 to 11: Mr. Y.V. Giri, Senior Advocate
Ms. Shristi Singh, Advocate
Mr. Ashish Giri, Advocate
For the Magadh University : Mr. Sidhartha Prasad, Advocate
For the Mirza Ghalib College : Mr. Abhinav Shrivastava, Advocate
For the State : Mr. Prabhakar Jha, GP-27
: Mr. Umesh Narayan Dubey, AC to GP-27
======================================================
CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
CAV JUDGMENT
Date :08-10-2024
Heard Mr. Tej Bahadur Singh, learned senior counsel, aptly
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assisted by Mr. Prince Kumar Mishra, learned Advocate, for the
petitioners, Mr. Y.V. Giri, learned senior counsel assisted by Ms.
Shristi Singh, learned Advocate, for the respondent nos.7 to 11,
Mr. Abhinav Srivastava, learned Advocate, for the Mirza Ghalib
College, Gaya, Mr. Sidhartha Prasad, learned Advocate, for the
Magadh University and Mr. Prabhakar Jha, learned GA-27, for
the State.
2. By filing the present petition under Article-226 of the
Constitution of India, the petitioners pray for the following
relief/reliefs:
(i) For issuance of a writ in the nature of
Certiorari, quashing the Advertisement
published in the Hindi daily Hindustan
dated 06/10/2019 issued by Secretary,
Governing Body, Mirza Ghalib College,
Gaya, whereby and whereunder it has
been informed that the advertisement
issued in March 2018 and for which
interview were held in February 2019 and
for which panel was prepared - have been
cancelled by the Governing Body of the
College, without specifying any reason as
to what were the compelling circumstances
which warranted cancellation of the entire
selection process, in which petitioners
have succeeded.
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(ii) For issuance of writ in the nature of
Certiorari, quashing the Advertisement
published in the Hindi daily Hindustan on
06/10/2019
for recruitment to the post of
Assistant Professor in the Departments of
Persian & Chemistry in Mirza Ghalib
College, Gaya, whereby and whereunder
fresh applications have been invited for
appointment by cancelling the earlier
Advertisement issued in March 2018 and
for which interview were held in February
2019, in completely arbitrary and illegal
manner and for which no justifiable reason
much less legally sustainable reasons have
been provided.
(iii) For issuance of appropriate writ in
nature of mandamus or any other order,
holding and declaring that the entire
selection process has been conducted in
the breach of Section 57-B of Bihar State
University Act,1976 as quorum required
for selection committee was totally
missing, rendering the constitution of
interview board, illegal and arbitrary.
(iv) For issuance of writ in the nature of
mandamus directing and commanding
upon the Secretary, Governing Body,
Mirza Ghalib College, Gaya to produce
the minute of second round of selection
process, which has been kept by him in
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iron chest and merit list of same was not
published and after such production be
quashed as same has been prepared
ignoring the experience candidates like
petitioner’s.
(v) For issuance of writ in the nature of
mandamus directing and commanding
upon the respondent authorities,
particularly the Secretary, Governing
Body, Mirza Ghalib College, Gaya to
implement the result of Advertisement
issued in March 2018 and for which
interview were held in February 2019
forthwith- as the selected candidates have
committed no fault and they fulfill all the
requirements as per prevailing UGC
norms and any delay in their appointment
would be per se illegal.
(vi) For issuance of writ in the nature of
mandamus, directing upon the Secretary,
Governing Body, Mirza Ghalib College,
Gaya to produce the minutes of
Constitution of selection committee as per
section 57 B of the Bihar State University
Act.
(vii) For issuance of appropriate writ in
the nature mandamus or any other
appropriate order, restraining the
respondent College from taking any
coercive steps like removal of Petitioners
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from the post of Assistant Professor
(Adhoc) on which they are presently
working or termination, during the
pendency of the writ petition.
(viii) To any other relief or relief which the
petitioners may be found entitled to in the
facts and circumstances of the case;
(ix) Cost of this litigation.
Fact of the case
3. The brief fact emanates from the case record is that petitioner
no.1 was appointed as Assistant Professor for the post of
chemistry on ad hoc basis on 02.01.2018 by the orders of
Secretary, Governing Body, Mirza Ghalib College, Gaya, and
joined the College as Assistant Professor on 03.01.2018 and
started discharging her duties to the satisfaction of all concerned
and continue to do so till date. While petitioner no.1 was
working as Assistant Professor, she was given several
responsibilities including the assignment to see the renovation
of departments of vocational courses etc., which she
successfully completed. Petitioner No.1 was given appreciation
letter by the College administration for successfully handling
several responsibilities including successful conduct of webinar
during the lock-down in COVID.
3.1. Similarly petitioner no.2 has completed his PhD in the year
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2014. Prior to this, petitioner no.2 was appointed as Assistant
Professor on 05.03.2011 in the Department of Persian studies
vide orders of Secretary, Governing Body, Mirza Ghalib
College, Gaya, and joined as Assistant Professor in the
Department of Persian on the same day. It is stated that
petitioner no.2 continued to discharge his function as Assistant
Professor in the Department of Persian studies to the satisfaction
of all concerned authorities and continue to do so till date. An
advertisement was published in the Hindi daily i.e. Hindustan in
the month of March, 2018 by the Secretary, Governing Body,
Mirza Ghalib College, Gaya, inviting applications for
appointment to the post of Assistant Professor in the Department
of Urdu, Persian, Hindi, Psychology, Political Science,
Economics, History, Philosophy, Physics, Chemistry, Botany,
Mathematics and Commerce. The applications were required to
be filed before 26th March, 2018. It was stipulated in the
advertisement that preference will be given to experience
teachers.
3.2. In response to the aforesaid advertisement, petitioner no.1
made application for consideration as Assistant Professor in the
Department of Chemistry and petitioner no.2 made application
for consideration as Assistant Professor in the Department of
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Persian. Petitioners have the requisite qualification as per the
prevailing UGC norms for appointment to the post of Assistant
Professor.
3.3. Upon due verification of the candidature of petitioners and
considering the eligibility requirements being fulfilled by them,
both were called for interview. Petitioner no.1 was called to
appear for the interview on 24th February, 2019 at 9 AM in the
premises of Mirza Ghalib College, Gaya. Similarly, petitioner
no.2 was directed to appear for the interview on 17 th February,
2019 at 9 AM in the premises of Mirza Ghalib College, Gaya.
Petitioners were directed to appear before the interview board
with all original documents for verification along with passport
size photograph. Petitioners were also required to produce a
xerox copy of the certificate from the officials of the University
concern for approval of the Ph.D. as per the latest UGC
regulation act at the time of interview. It was further indicated in
the interview letter that no T.A. will be admissible.
3.4. Upon due completion of the interview, on 24.02.2019, for
the post of Assistant Professor, final merit list was published
taking into account the Marks of Academic qualifications and
Marks of Interview. In the list of 20 candidates, who have
applied for the post of Assistant Professor in the Department of
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Chemistry, petitioner no.1, secured second position with a total
marks of 88. On the basis of performance before the interview
board held on 24th February, 2019 and the academic marks
including publications and teaching experience, panel of experts
recommended her name for the post of Assistant Professor in the
order of merit for the Department of Chemistry.
3.5. Similarly, upon due completion of the interview held on
17.02.2019 for the post of Assistant Professor in the Department
of Persian studies, final merit list was published taking into
account marks of academic qualifications and marks of
interview. Out of 9 candidates, petitioner no.2, secured fourth
position. It is stated that the panel of experts submitted the
report on the basis of performance before the interview board
held on 17th February, 2019 and the academic marks including
publications and teaching experience for the post of Assistant
Professor in order of merit.
3.6. However, no appointments were made as per the aforesaid
final results and the matter was kept pending. Petitioners were
hopeful that considering their position in merit list and number
of vacancies in the respective departments, they would be
appointed as Assistant Professors.
3.7. All of sudden, vide Advertisement published in Hindi daily
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i.e. Hindustan dated 06.10.2019, fresh applications were invited
for appointment to the post of Assistant Professors in the
respective departments from eligible candidates, who possessed
the prevailing UGC criteria. It was further stated that the
applications and all testimonials must reach vide 25th October,
2019 through registered post only. In the same advertisement, it
was mentioned that the Advertisement issued in March, 2018
and for which interview were held in February, 2019 have been
cancelled by the Governing Body of the college due to
unavoidable reasons.
3.8. By filing a supplementary affidavit on behalf of the
petitioners, inter alia, it is alleged that after filing of the present
writ application and bringing into light the irregularities
committed in the second round of selection process drawn in
furtherance of advertisement dated 06.10.2019 (Annexure-P/9),
the petitioners have been subjected to undue coercion by the
members of governing body including Secretary and the
Chairman of the governing body of the college. It is further
stated in the supplementary affidavit that Aziz Ahmad, who is
chairman of the governing body ensured that his son-in-law
Ehsanullah Danish is selected as Assistant Professor in the
department of the Urdu. The aforesaid Ehsanullah Danish was
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placed in the second merit panel for the Urdu subject, even
though there was a candidate at Serial No.1, Mr. Ehsanullah
Danish, being the close relative of Chairman, was shown
favourtism by being selected in supersession of the candidate
place at Serial No.1. For his selection date of interview for
subject Urdu, which was initially schedule on 08.02.2021 was
extended to 20.02.2021, the candidate who was above in the
merit panel was deliberately not inform, no notice was
published in this regard and in the most secretive clandestine
manner interview was conducted on 20.02.2021 so that Mr.
Ehsanullah Danish could appear and be selected finally. It is
further stated that the teachers representative, namely, Sujat Ali
Khan, who is the teachers representative and was also Vice
Principal of the College, was part of the selection committee for
selection of Assistant Professor for subject Psychology in which
his cousin sister, namely, Khursid Jahan was finally selected as
Assistant Professor. The aforesaid Sujat Ali Khan was himself
sitting as member of selection committee while conducting
interview and finalizing the selection process of his cousin sister
namely Khursid Jahan as Assistant Professor in Psychology. It is
further stated that Salma Jafar, who has been selected as
Assistant Professor in Political Science, who is niece of Wasibul
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Haque (Member of selection committee), is also demonstrative
of fact regarding the favoritism, which has been the sole guiding
factor for selection of the Assistant Professor through the
advertisement dated 06.10.2019 (Annexure-P/9). The said
Wasibul Haque, who was member of selection committee, was
present at the time of interview and has ensured that his niece
Salma Jafari be appointed as Assistant Professor in Political
Science.
3.9. It is further stated that Petitioner No.1, after filing of the
writ application, was coerced and threatened by Respondent
No.9 for withdrawing the writ application. Petitioner No.1 was
threatened to the extent that she belongs to fair gender and she
could be subjected to anything unpleasant any time for her
conduct of exposing the illegalities in the selection process. The
petitioner No.1 has in her possession the electronic evidence in
the form of telephonic conversation with Secretary of the
Governing Body (Respondent No.9), wherein she has been
coerced for withdrawing the writ application, else she should be
ready to face the consequences. Further, she was made to feel
humiliated by taking away her classes and allotting her classes
to the newly appointed lecturer barely having a couple of
months of experience. The extent of the stress, duress and
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coercion was such on Petitioner No.1 that she has to finally
resign and leave the college after a month of filing the writ
application. Other infirmities has also been brought on record.
Contention on behalf of the Petitioners
4. Mr. Tej Bahadur Singh, learned Senior counsel appearing
for the petitioners submitted that selection committee for
conducting the interview has been prepared in complete breach
of provisions contained in Section 57 -A & 57-B of Bihar State
Universities Act. The selection committee was not comprised as
per the statutory mandate as there was no university
representative. At no stage any consultation with University for
preparation of Selection Committee for the interview board was
made.
4.1. It is next submitted that the Selection Committee
comprising of a nominee of the Governing body (Chairman),
Principal of the College, Head of the concerned Department, 3
Subject Experts from the panel of 5 names from the list
approved by the University’s Academic Council and duly
recommended by the Vice Chancellor as mandated by Bihar
State Universities Act 1976, was not done. Till date it is not
clear as to how the experts were selected. There is a complete
lack of transparency and objectivity in the mode and manner of
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selection.
4.2. It is next submitted that in the selection committee,
Principal of the College, respective Heads of Departments were
absent. Apart from it, how the selection of subject expert was
made is not clear. Entire selection committee was constituted in
breach of Bihar State Universities Act, more particularly Section
57-A & 57-B of the said Act.
4.3. It is next submitted that in absence of duly constituted
selection committee, any appointment made is required to be set
aside. It is submitted that ignoring all the relevant rules and
regulation, entire selection process has been carried out, which
is in teeth of provisions contained in the Bihar State Universities
Act.
4.4. It is further submitted that after selection, large number of
complaints were made. The Honourable Chancellor constituted
an inquiry committee vide Letter dated 17.06.2021 and,
thereafter, vide Letter dated 26.06.2021, Secretary, Governing
Body, Mirza Ghalib College, Gaya was asked to submit his
response. However, the response submitted by the college was
found to be vague and evasive.
4.5. It is further submitted that, thereafter, inquiry committee
vide its Letter dated 13.07.2021, directed, Secretary of the
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Governing Body, to send reply of the 20-point questionnaire
seeking details of the appointment process, composition of
Selection Committee and other relevant details. However, the
secretary of the governing body did not provide any information
and in apparent and conscious effort tried to mislead the enquiry
committee and concealed the relevant facts. The video footage
off the interview has gone missing. Relevant records like
tabulation seat, proof of proper dispatch of appointment letter,
basis of Selection of Expert, etc. were not provided by the
college.
4.6. Learned senior counsel for the petitioners relied upon the
judgement passed in the case of Dr. (Major) Meeta Sahay Vs.
State of Bihar reported in (2019) 20 SCC 17 and in particular
para-17 thereof, in support of his submission. It is, accordingly,
submitted that all appointments made pursuant to advertisement
dated 06.10.2019 is illegal and required to be set aside.
Contention on behalf of Respondent Nos.10 & 11
5. Mr. Y.V. Giri, learned senior counsel appearing on behalf of
the Respondent Nos. 10 and 11 submitted that the present writ
application is not maintainable, as the college in question is a
recognized minority institution, protected under Article 30 of
the Constitution of India. Furthermore, since the petitioners
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participated in the selection process, they are precluded from
pursuing this writ application, as it is barred by the principles of
waiver, acquiescence, and estoppel. This principle was affirmed
by the Hon’ble Supreme Court in the case of Dhananjay Malik
and Ors. vs State of Uttaranchal and Ors. (2008) 4 SCC 171
[para 7 to 9, 10, and 11].
5.1. It is further submitted that the writ petition rests on the
unfounded assumption that the previous advertisement was
cancelled, and a new one was issued to promote nepotism.
However, this claim is disproved by the fact that Respondent
No. 11 was already selected under the 2018 advertisement, in
which his name appeared at the top of the merit list for the
subject of Persian, for which only one post was available. Thus,
the cancellation of the 2018 advertisement and the subsequent
issuance of a fresh one did not place Respondent No. 11 in a
more advantageous position, negating the argument of any
undue influence or prejudice against the petitioners.
Additionally, Respondent No. 10 is a legitimate and meritorious
candidate who qualified for the post of Assistant Professor in
Chemistry without any external assistance.
5.2. Mounting the attack, learned senior counsel further
submitted that the petitioners lack the locus standi to maintain
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the present writ petition. During the selection process under the
2018 advertisement, the selection committee merely
recommended their names, along with others, for appointment
to the post of Assistant Professor. However, no appointments
were made as a result, and therefore, no rights were vested in
the petitioners. By their own admission, they were only part of a
panel of candidates, which does not confer any enforceable right
upon them. Furthermore, it is well-settled law that an employer
has the authority to cancel any selection process, and such
decisions cannot be challenged in a writ petition, particularly
when no right has vested in any candidate. Additionally, the
subsequent selection process was publicly notified and
conducted in accordance with Article 14 of the Constitution of
India, ensuring fairness and transparency.
5.3. He further submitted that the college, as a minority
institution, has the constitutional right under Article 30 to
administer its affairs independently. Neither the State nor the
University has the authority to interfere in its administration,
and the decisions made by the governing body of the minority
institution are not subject to judicial review. If the appointed
Assistant Professors meet the required qualifications (as is the
case with the respondents), any interference in the selection
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process would violate the institution’s autonomy and rights.
Such interference could also set a dangerous precedent, opening
the floodgates to unnecessary and impermissible litigation.
5.4. It is further submitted that both the respondents are well
qualified, eligible and possesses all requisite criteria against the
advertisement advertised by the concerned college on
06.10.2019 for the post of Assistant Professors in various
subjects. The respondent no. 10 possesses M.Sc. degree in the
subject of chemistry, as well as Ph.D. degree also in accordance
with provisions contained in UGC (Minimum Standards and
Procedure for Award of M.Phil./Ph.D. Degree) regulations,
2009, from the Deen Dayal Upadhyay Gorakhpur University,
Gorakhpur, UP. Whereas, the Respondent No. 11 possesses B.A.
(Hons.) in Persian language; M.A. (Hons.) in Persian Language;
M.Phil as well as Ph.D degree also in accordance with
provisions contained in UGC (Minimum Standards and
Procedure for Award of M.Phil./Ph.D. Degree) regulations,
2009, from the Jawaharlal Nehru University, New Delhi.
5.5. Learned senior counsel further submitted that both the
respondents nos. 10 and 11 have been duly appointed on the
post of assistant professor in their respective subjects based on
recommendation made by the selection committee constituted in
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the said respect. Pursuant to this they did not have any role to
play in the matter of publication of advertisement or anything
connected with the constitution of selection committee and other
ancillary matters pertaining to the matter of selection of
candidates against the post of Assistant Professor in different
subjects at the college. The writ petitioners have filed this writ
petition only after they have not been succeeded in the selection
process against the posts of Assistant Professors, have the writ
petitioners approached this Court to achieve what they could not
through the selection process.
5.6. It is further submitted that the Respondent No. 10 has been
duly appointed and is currently serving as an Assistant Professor
in Chemistry at the college. However, it is important to note that
Respondent No. 10 neither applied for nor participated in the
earlier selection process conducted by the concerned authorities
through the advertisement issued in March 2018. Consequently,
no comparative evaluation was made between Respondent No.
10 and Petitioner No. 1.
5.7. It is further submitted that mere participation in the
selection process and securing a place on the merit list does not
grant Petitioner No.1 an indefeasible right to the position, even
though Petitioner No. 1 ranked second on the merit list prepared
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based on the selection committee’s recommendations. As the
entire selection process conducted pursuant to the earlier
advertisement issued in March, 2018 was subsequently
cancelled, no right to appointment arises in Petitioner No. 1’s
favour.
5.8. It is further submitted that in the year, 2018, a vacancy for
the post of Assistant Professor in Persian was advertised. Both
Respondent No. 11 and Petitioner No. 2, along with others,
participated in the selection process. Following this process,
Respondent No. 11 was declared successful and was ranked first
in the panel prepared based on the experts’ recommendations,
while Petitioner No.2 was ranked fourth. As a result,
Respondent No.11 was recommended for the only available post
of Assistant Professor in Persian. However, no action was taken
on this panel as the selection process was later cancelled.
Petitioner No. 2 ranked fourth, while Respondent No. 11 ranked
first, there was no possibility for Petitioner No. 2 to have gained
any advantage, even if the panel had been acted upon and
appointments made. In that case, Respondent No. 11 would have
been given preference for the post of Assistant Professor in
Persian at the College.
5.9. It is further submitted that the earlier selection process
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was cancelled based on a decision taken by the concerned
authorities at the College. Subsequently, a new advertisement
dated 06.10.2019 was issued following a decision by the
College’s Governing Body, which the writ petitioners did not
challenge at any point. Furthermore, the allegations made
against various office bearers are unsupported by any material
evidence on record.
5.10. It is reiterated that following the publication of the
advertisement dated 06.10.2019, the writ petitioners, along with
others, participated in the selection process. They claim that the
selection committee members did not meet the criteria under
Section 57B of the Bihar State Universities Act, 1976, is entirely
unfounded. The selection committee was properly constituted,
including subject experts, and the selection process was
conducted based on the committee’s recommendations. Neither
Respondent No. 10 nor Respondent No. 11 were members of the
College’s Governing Body or the selection committee. Their
appointments as Assistant Professors were based solely on their
merit in comparison to other candidates who participated in the
selection process, and their appointments were made in
accordance with the law.
5.11. Learned senior counsel further submitted that, in line with
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the fundamental right guaranteed under Article 30 of the
Constitution of India, the Bihar State Universities Act, 1976
does not mandate prior approval from any selection committee
for the appointment of teachers in minority institutions. The
authority to make such appointments, along with related
decisions, rests solely with the governing body, and cannot be
overridden by the selection committee. Any involvement of the
selection committee is purely formal and advisory, not
obligatory. Nevertheless, despite not being required to involve a
selection committee, the governing body, in the spirit of fairness
and in adherence to the principles of Article 14 of the
Constitution of India, included a selection committee
comprising independent experts. This committee recommended
the appointment of the respondents. It is noteworthy that the
same process was followed for the 2018 advertisement, in which
the petitioners also participated without raising any objections
of a similar nature.
5.12. It is further submitted that it is a well-established
principle of law that neither the State nor any other authority
can, under the guise of implementing regulatory measures,
undermine the administrative autonomy of minority institutions
or interfere with their core management in a manner that renders
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the institution’s right to administer its affairs meaningless or
ineffective. It is the inherent and fundamental right of minority
institutions to manage their employees and teachers, including
decisions related to appointments. The imposition of external
authority over the institution’s governing body, and making such
external decisions final and binding, constitutes an undue
interference. Such actions are impermissible in light of the
protection granted under Article 30 of the Constitution of India
and the provisions of the Bihar State Universities Act, 1976.
Consequently, any interference with the Governing Body’s
decisions regarding appointments would be legally untenable.
5.13. It is further submitted that the regulatory measures
concerning conditions of service, such as prescribing minimum
qualifications for staff, setting pay scales, and ensuring
safeguards for the removal of employees, are permissible.
However, such regulation cannot extend to reviewing the
appointment process itself, as this would constitute undue
interference, particularly when the eligibility of the selected
candidates is not in question.
5.14. In support of his submission, he relied on various
decisions of the Hon’ble Supreme Court submitting that it is a
well-established legal principle that the employer has discretion
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in the selection process, which cannot be challenged,
particularly when the selection is made by an expert committee.
The legal position, as affirmed in Sajeesh Babu K. v. N.K.
Santhosh & Ors., (2012) 12 SCC 106, holds that deference
must be given to the recommendations of an expert committee
comprising distinguished specialists in the field, as they possess
a deeper understanding of the technicalities and nature of the
work involved. Moreover, as previously mentioned, the writ
petitioners, having already participated in the recruitment
process, are barred from challenging the selection process, the
method adopted, or its outcome. This legal principle has been
upheld by the Hon’ble Supreme Court in Ramesh Chandra
Shah & Ors. v. Anil Joshi & Ors., (2013) 11 SCC 309 [para
18, 20, 21 and 24].
5.15. He further submitted that the writ petitioners have not
alleged that the respondents intentionally or inadvertently
contributed to any discrepancies in the selection process, if any
existed. In fact, no fault can be attributed to the respondents
throughout the process. Therefore, since a right has accrued in
favour of the respondents, who have been fulfilling their duties
as Assistant Professors, they should not be deprived or
penalized, especially when they are not at fault.
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Contention on behalf of the University
6. Per contra, Mr. Siddhartha Prasad, learned counsel
appearing for the Magadh University submitted that Mirza
Ghalib College, Gaya is an affiliated college under the Magadh
University and a Minority Institution. The said college is getting
benefit of deficit grant in aid by the State Government and
employees of the college are being paid salary as like as the
employees of constituent colleges.
6.1. It is further submitted that prior to 2007, Section 57 A of the
Bihar State Universities Act provided for appointment of teacher
in Affiliated College including Minority Institution
“Appointment of teacher of affiliated college not maintained by
the State Government shall be made by the Governing Body on
the recommendation of College Service Commission, Dismissal,
Termination, Removal from service or demotion in rank of
teacher of such college shall be done by the Governing Body in
consultation with the College Service Commission in the
manner prescribed by the Statutes. Provided that the Governing
Body of Affiliated Minority Colleges based on religion and
language shall Appoint, Dismiss, Remove or Terminate the
services of teacher or take disciplinary action against them with
the approval of the College Service Commission”.
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6.2. Mr. Prasad further submitted that in the year 2007, the
College Service Commission was abolished and Section 57 A of
the Bihar State Universities Act was amended whereby the
College Service Commission was substituted by “University
Service Commission” and procedure was also prescribed as to
how Managing Committee will be constituted. In the year 2013,
again amendment has been made in the Bihar State Universities
Act and new Section 57 A and 57 B has been introduced. The
new Section 57 A deals with the procedure of appointment in
Affiliated Colleges including Minority Institution, whereas
Section 57 B deals with the Constitution of Selection
Committee.
6.3. It is further submitted that from perusal of Section 57 A
and 57 B of the Bihar State Universities Act, it is evident that
appointment of teachers in Affiliated College is to be done by
the Governing Body on the recommendation of Selection
Committee constituted under Section 57(B) of amended Act.
Section 57 B of the said Act provides that the Chairman of the
Governing Body shall be Chairman of the Selection Committee
and two members from the college i.e. Principal of the College
and Head of Department of faculty shall also be a member of
the Selection Committee.
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6.4. In case of Minority Institution, Chairman of the College
has right to nominate, three experts out of the list of five persons
preferably from Minority Community and who have been
recommended by the Vice- Chancellor from the panel of experts
proposed by the Academic Council of the University. Therefore,
the Governing Body of the College has vital role in constitution
of Selection Committee. According to the said Act, the
University has only role to provide a list of qualified experts out
of which the Chairman of the Governing Body will nominate
three persons from the list of five persons i.e. the preferably
from the Minority Community. Thus, even after introduction of
new Section 57 A and 57 B in Bihar State Universities Act, the
Selection Committee is predominantly of persons from the
college itself.
6.5. He further submitted that in the year 2018, the college in
question came out with advertisement for appointment of
Assistant Professor in different subjects and in pursuance of said
advertisement selection process was completed as claimed by
the writ petitioners. In the meantime, New Governing Body of
the college in question has been constituted. The newly
constituted Governing Body cancelled the selection made by the
erstwhile Governing Body and came out with fresh
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advertisement dated 06.10.2019, as contained in Annexure-9 to
the writ application. Thereafter, selection process was
completed and appointments were made accordingly.
6.6. Mr. Prasad mainly harped on non-compliance of the
provisions enshrined in Section 57 B of the Bihar Universities
Act and submitted that Selection Committee for appointment of
Assistant Professor as such was not constituted in terms of
Section 57 B of the Bihar State Universities Act amended in the
year 2013 in either of the two transactions for selection of
candidates. The Selection Committee was constituted by the
College on its own in contravention of statutory provisions of
the Bihar State Universities Act, therefore, the appointment of
Assistant Professors in different subjects in Mirza Ghalib
College, Gaya is illegal. In fact, no information was given to the
University regarding the entire selection process and everything
has been done in an arbitrary manner. In support of his
submission, learned counsel relied upon the judgement passed
in CWJC No. 14793 of 2017 (Noor Alam Khan Vs. State of
Bihar & Ors) and submitted that a challenge was made to the
vires of Section 57 A of the Bihar State Universities Act and the
same has been upheld by Hon’ble Division Bench of this Court.
6.7. Mr. Prasad, learned counsel for the University further
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submitted that if the college selects an expert for being a
member of selection committee from the panel of experts
approved by the Academic Council, the same by any stretch of
imagination, cannot be termed as interference in the
administration of affairs of the college. It is the bare minimum
participation of the University which has to face audit of
allocation of funds by State and other agencies.
6.8. In support of his submissions, Mr. Prasad relied on various
judgments some of which are mentioned herein below:
(i) Sk. Md. Rafique Vs. Managing Committee, Contai
Rahamania High Madrasah and Others reported in (2020) 6
SCC 689.
(ii) T.M.A. Pai Foundation and others Vs. State of
Karnataka & ors. reported in (2002) 8 SCC 481.
(iii) The Ahmedabad St. Xaviers College Society and Anr.
Vs. State of Gujarat and Anr. reported in 1974 AIR 1389 :
(1974) 1 SCC 717.
Submission on behalf of Respondent Nos.6 to 8
7. Mr. Abhinav Shrivastava, learned Advocate, appearing for
respondent nos.6 to 8, has argued almost in line with the
submissions made on behalf of respondent nos.10 and 11. He
submitted that the writ petitioners have no locus standi to
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maintain this writ application. Inasmuch as they have on their
own volition, voluntarily, with their eyes wide open and without
any protest whatsoever with regard to the constitution of the
Five Member Selection Committee having participated in the
selection process and their individual interviews was held on
04.02.2021 and 05.02.2021 and having not being successful, are
precluded in law in questioning the said selection process held
in February, 2021, pursuant to newspaper publication made on
06.10.2019.
7.1. He further submitted that when a candidate willingly and
voluntarily participates in the selection process and is not
successful, cannot thereafter turn around and claim that the said
selection process is vitiated on any count.
7.2. He further submitted that it is well settled that a litigant
cannot approbate and reprobate at the same time. It is admitted
position that the writ petitioners participated in the earlier round
of interviews held on 24.02.2019 and 17.02.2019 respectively.
The said selection process was conducted only by two experts
and in complete violation of Section 57 B (1) of the Bihar
Universities Act, 1976 (as amended). They cannot claim to have
any vested right for appointment pursuant to the said selection
process of February, 2019. The Two Member Expert Committee
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had no jurisdiction to make any recommendations in favour of
the petitioners. It is further admitted position that the writ
petitioners having participated in the said interviews held on
04.02.2021 and 05.02.2021 and having not been selected, are
precluded in law to maintain the instant writ application.
7.3. He further submitted that the college is recognized
minority education institution in terms of Article 30(2) of the
Constitution of India and it has been conferred upon with the
right to establish and administer an educational institution
which, inter alia, includes the powers to make appointments
against the posts of teachers and other members of staff at the
College against the sanctioned posts while adhering to the
prescriptions laid down with respect to educational qualification
and other eligibility criteria under the relevant Acts and Statutes.
He further submitted that certain baseless and misconceived
assertions have been made on behalf of respondent nos. 3 to 5,
with respect to violation of the provisions contained under
Section 57A and the Section 57 B of the Bihar State Universities
Act, 1976, whereas as a matter of fact, while conducting the
process of selection in furtherance of advertisement dated
06.10.2019 issued by the College, all necessary steps have been
taken and the provisions contained under the Section 57A and
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the Section 57 B of the Bihar State Universities Act, 1976 have
been strictly adhered to.
7.4. It is further submitted that the College is a minority
educational institution and affiliated to Magadh University,
Bodh Gaya, the prescription with respect to educational
qualifications and process of selection laid down under the
Bihar State Universities Act, 1976, as amended up to date and
the statutes framed thereunder, are to be followed. However, the
management of the College has the right to make appointments
without any interference from the side of the University.
7.5. It is further submitted that on the basis of a decision taken
by the governing body of the college, the earlier process of
selection conducted for making appointment against the posts of
Assistant Professor in different subjects in which the writ
petitioners had also participated was cancelled for just and valid
reasons and without any objection ever having been raised by
the writ petitioners, they participated in the subsequent process
of selection conducted by the management of the respondent
College pursuant to advertisement dated 06.10.2019 and it was
only after they were declared to be unsuccessful in the said
process of selection that the connected writ petition was filed
and as such, on this count alone, the writ petition under reply is
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fit to be dismissed by this Court. In so far as the role of the
University and the extent to which any control may be exercised
by it are concerned, the same have to be in accordance with the
provisions contained under Section 57A and the Statutes framed
in terms of Section 57B of the Bihar State Universities Act,
1976 as amended from time to time. He referred to an order and
judgement dated 14.01.2020 passed in CWJC No.10283 of
2019, wherein identical issues were involved with respect to the
extent to which the University could exercise control in the
matter of appointment against the posts of teachers at a College
which was affiliated to a University incorporated and
established under the Bihar State Universities Act, 1976.
7.6. In view of the submission as made above, Mr. Shrivastava
lastly submitted that the writ petition filed by the petitioners is
completely misconceived and devoid of any merit in the eyes of
law and the same is fit to be dismissed.
Issues for consideration
8. Having heard learned counsel for the parties at length and on
perusal of the case record, in my considered opinion, two issues
arise for consideration in this case:
I. Whether the petitioners have locus standi to
present this Petition?
II. Whether the selection committee was
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of the Bihar Universities Act?
Issue No.I
9. It is further observed that in India, there are four categories
of persons for locus standi: first category is individual standing;
second category is statutory standing or in other words, when
statute has provided standing to a person or a class of persons
and on the strength of the standing conferred by the statute, one
may move the Court; third category is public interest litigation;
fourth category of locus standi is representative action or class
action. However, over a period of time, there may have been a
lowering of the barrier imposed by the standing requirement or
taking a liberal approach in the matter. But, it is necessary to
follow certain principles having regard to the law. Thus, the
doors of the court could be made open at the instance of the
persons or authorities under certain categories and every other
person cannot move a writ petition challenging actions of the
State Government or its instrumentalities. Otherwise, the
doctrine of locus standi or a standing requirement would be
rendered meaningless and thereby introduce a procedure which
is not judicially recognised.
9.1. Firstly, I would like to emphasise that cases may arise
where there is undoubtedly public or personal injury by the act
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or omission of the State or a public authority but such act or
omission also causes a specific legal injury to an individual or to
a specific class or group of individuals. In such cases, a person
having sufficient interest can certainly maintain an action
challenging the legality of such act or omission.
9.2. The Hon’ble Supreme Court, in series of judgments, has in
clearest terms laid down that if a challenge to arbitrary or mala
fide administrative action, which seriously affects Rule of Law
is disallowed, disrespect for law would be the consequence,
which would strike a severe blow to Rule of Law and force the
people to fight out the matter in the streets. Therefore, citizens
must be allowed to resort to a legal remedy in the Courts and
should not be forced to go to the streets to resort to
unconstitutional methods to express their protest against such
Governmental decisions. Any such situation created by taking a
narrow, pedantic view about locus standi, even in situations in
which arbitrary or capricious or mala fide exercise of power is
alleged and the extent and gravity of such unlawful action is
such as would make a mockery of Rule of Law, the consequence
would be disastrous in that it might mark the beginning of the
end of the faith of the people in the Rule of Law.
9.3. Secondly, a person aggrieved is one who is directly and
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adversely affected by an act, law or decision of the State or its
instrumentalities, which infringes any constitutional or statutory
right of the person and thereby entitles him to sustain a petition
under Article 226 of the Constitution. The petitioner must be in
a position to demonstrate before the Court, that he has
personally suffered an infringement of a right on account of
something done by the State or its instrumentalities. This would
authorise such a person to prefer and sustain a writ petition.
9.4. I may rely on dictum of the Hon’ble Apex Court in the case
of Calcutta Gas Company (Proprietary) Ltd. v. State of
West Bengal, AIR 1962 SC 1044, and in particular para-5, the
Apex Court has held as under:
“…Article 226 confers a very wide power on
the High Court to issue directions and writs of
the nature mentioned therein for the
enforcement of any of the rights conferred by
Part III or for any other purpose. It is,
therefore, clear that persons other than those
claiming fundamental rights can also approach
the court seeking a relief thereunder. The
Article in terms does not describe the classes of
persons entitled to apply thereunder; but it is
implicit in the exercise of the extraordinary
jurisdiction that the relief asked for must be
one to enforce a legal right. In State of Orissa
v. Madan Gopal Rungta, (1952) SCR 28 :
(1951 SCC 1024 : AIR 1952 SC 12) this Court
has ruled that the existence of the right is the
foundation of the exercise of jurisdiction of the
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36/65Court under Article 226 of the Constitution. In
Charanjit Lal Chowdhuri v. Union of India,
(1950) SCR 869 : (1950 SCC 833 : AIR 1951
SC 41, it has been held by this Court that the
legal right that can be enforced under Article
32 must ordinarily be the right of the petitioner
himself who complains of infraction of such
right and approaches the Court for relief. We
do not see any reason why a different principle
should apply in the case of a petitioner under
Article 226 of the Constitution. The right that
can be enforced under Article 226 also shall
ordinarily be the personal or individual right of
the petitioner himself, though in the case of
some of the writs like habeas corpus or quo
warranto this rule may have to be relaxed or
modified…”
9.5. Further in the case of Mani Subrat Jain v. State of
Haryana, (1977) 1 SCC 486 : AIR 1977 SC 276, in para 9 the
Hon’ble Supreme Court has held as under:
“..It is elementary though it is to be restated that
no one can ask for a mandamus without a legal
right. There must be a judicially enforceable
right as well as a legally protected right before
one suffering a legal grievance can ask for a
mandamus. A person can be said to be
aggrieved only when a person is denied a legal
right by some one who has a legal duty to do
something or to abstain from doing
something….”
9.6. Further in the case of Ghulam Qadir v. Special Tribunal,
(2002) 1 SCC 33, in para 38, the Hon’ble Supreme Court has
held as under:
Patna High Court CWJC No.10935 of 2021 dt.08-10-2024
37/65“38. There is no dispute regarding the legal
proposition that the rights under Article 226 of
the Constitution of India can be enforced only
by an aggrieved person except in the case
where the writ prayed for is for habeas corpus
or quo warranto. Another exception in the
general rule is the filing of a writ petition in
public interest. The existence of the legal right
of the petitioner which is alleged to have been
violated is the foundation for invoking the
jurisdiction of the High Court under the
aforesaid Article. The orthodox rule of
interpretation regarding the locus standi of a
person to reach the court has undergone a sea
change with the development of constitutional
law in our country and the constitutional courts
have been adopting a liberal approach in
dealing with the cases or dislodging the claim
of a litigant merely on hypertechnical grounds.
If a person approaching the court can satisfy
that the impugned action is likely to adversely
affect his right which is shown to be having
source in some statutory provision, the petition
filed by such a person cannot be rejected on the
ground of his having not the locus standi. In
other words, if the person is found to be not
merely a stranger having no right whatsoever to
any post or property, he cannot be non-suited
on the ground of his not having the locus
standi.”
9.7. Further the expression “aggrieved person” has come up for
consideration before the Supreme Court on many occasions
wherein the Hon’ble Supreme Court has held, aggrieved person
would mean who has suffered legal injury. In this regard
reference can be made to its opinion in Babu Ram v. State of
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U.P., (1995) 2 SCC 689 wherein, in paragraph 17, it observed as
under:
“17. In Collins English Dictionary, the word
‘aggrieved’ has been defined to mean “to ensure
unjustly especially by infringing a person’s legal
rights”. In Webster Comprehensive Dictionary,
International Edition at page 28, aggrieved person is
defined to mean “subjected to ill-treatment, feeling an
injury or injustice. Injured, as by legal decision
adversely infringing upon one’s rights”. In Strouds
Judicial Dictionary, Fifth Edn., Vol. 1, pages 83-84,
person aggrieved means “person injured or damaged
in a legal sense”. In Black’s Law Dictionary, Sixth
Edn. at page 65, aggrieved has been defined to mean
“having suffered loss or injury; damnified; injured”
and aggrieved person has been defined to mean:
“One whose legal right is invaded by an act
complained of, or whose pecuniary interest is directly
and adversely affected by a decree or judgment. One
whose right of property may be established or
divested. The word ‘aggrieved’ refers to a substantial
grievance, a denial of some personal, pecuniary or
property right, or the imposition upon a party of a
burden or obligation.”
9.8. The person aggrieved, therefore, must be one who has
suffered a legal injury. Further the Supreme Court in the case of
Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir
Ahmed, (1976) 1 SCC 671 : AIR 1976 SC 578, while dealing
with the expression “aggrieved person”, has in paragraphs 12,
25, 29 and 38 observed as under:
“12. According to most English decisions, in order to
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the petitioner should be an “aggrieved person” and in
a case of defect of jurisdiction, such a petitioner will
be entitled to a writ of certiorari as a matter of
course, but if he does not fulfill that character, and is
a “stranger”, the Court will, in its discretion, deny
him this extraordinary remedy, save in very special
circumstances. This takes us to the further question :
Who is an “aggrieved person”? And what are the
qualifications requisite for such a status? The
expression “aggrieved person” denotes an elastic,
and, to an extent, an elusive concept. It cannot be
confined within the bounds of a rigid, exact and
comprehensive definition. At best, its features can be
described in a broad tentative manner. Its scope and
meaning depends on diverse variable factors such as
the content and intent of the statute of which
contravention is alleged, the specific circumstances of
the case, the nature and extent of the petitioner’s
interest, and the nature and extent of the prejudice or
injury suffered by him. English Courts have
sometimes put a restricted and sometimes a wide
construction on the expression “aggrieved person”.
25. Emphasising the ‘very special circumstances’ of
the case, the court read into the statute, a duty to
act fairly in accordance with the principles of
natural justice. Thus, a corresponding right to be
treated fairly was also imported, by implication, in
favour of the applicants. Viewed from this
standpoint, the applicants had an interest
recognised in law, which was adversely affected by
the impugned action. They had suffered a wrong as
a result of the unfair treatment on the part of the
corporation.
29. …Salmon J. quoted with approval these
observations of James LJ in James LJ in
Sidebothem [L.R.] 14 Ch.D. 458 at p. 465 The
words ‘person aggrieved’ do not really mean a man
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who is disappointed of a benefit which he might
have received if some other order had been made. A
‘person aggrieved’ must be a man who has suffered
a legal grievance, a man against whom a decision
has been pronounced which has wrongfully
deprived him of something or wrongfully refused
him something, or wrongfully affected his title to
something.
9.9. Before, I part with this discussion, I may note that a
member of the public having sufficient interest can certainly
maintain an action challenging the legality of such act or
omission, but if the person or specific class or group of persons
who are primarily injured as a result of such act or omission do
not wish to claim any relief and accept such act or omission
willingly and without protest, the member of the public who
complains of a secondary public injury cannot maintain the
action, for the effect of entertaining the action at the instance of
such member of the public would be to foist a relief on the
person or specific class or group of persons primarily injured,
which they do not want.
9.10. In light of the ratio of aforesaid discussions, the only
conclusion that can be drawn is that petitioners have locus
standi to file the present petition seeking a writ of certiorari or
writ of mandamus as petitioners have been able to demonstrate
that a legal right has been violated and/or they have suffered a
legal injury. These are the weighty reasons which have
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persuaded this Court to hold that the petitioners have the locus
standi to prosecute the petition and I hold accordingly.
Issue No.II
10. Before dealing with the issue in hand, I think it appropriate
to first deal Article 30 of the Constitution of India, which has
been elaborately debated by different parties in the present case.
Article 29 and 30 of the Constitution have increasingly engaged
the attention of the Supreme court. A survey of the law on this
subject would be necessary and can start with Kerala
Education Bill,1957, Re v.,1959 SCR 995. In the said case a
question arose whether State maintained, State aided and State
recognized educational institution can be dealt with differently
and if minority institution within the meaning of Article 30 of
the Constitution should have a fundamental right in the matter
of recognition of their educational institution. The Supreme
Court answered the said query in following terms:-
“Para 36, …..The right which the minorities now
claim is something more. They want not merely
freedom to manage their own affairs, but they demand
that the State should actively intervene and give to
their educational institutions the imprimatur of State
recognition.That, in my opinion, is not within Article
30 (1). The true intention of that article is to equip
minorities with a shield whereby they could defend
themselves against attacks by majorities, religious or
linguistic, and not to arm them with a sword whereby
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concessions. It should be noted in this connection that
the Constitution has laid on the States various
obligations in relation to the minorities apart from
what is involved in Article 30 (1). Thus, Article 30 (2)
provides that a State shall not, when it chooses to
grant aid to educational institutions, discriminate
against institutions of minorities based on language
or religion. Likewise, if the State frames regulations
for recognition of educational institutions, it has to
treat all of them alike, without discriminating against
any institution on the ground of language or religion.
The result of the constitutional provisions bearing on
the question may thus be summed up:
(1) The State is under a positive obligation to give
equal treatment in the matter of aid or recognition to
all educational institutions, including those of the
minorities, religious or linguistic.
(2) The State is under a negative obligation as
regards those institutions, not to prohibit their
establishment or to interfere with their
administration.”
10.1. After a decade Supreme court was again called upon to
answer similar question in slightly different context in the case
of State of Kerala v. Very Rev. Mother Provincial, (1970) 2
SCC 417, the Supreme court while considering the rights of
Minorities to establish the institutions of their choice, was
concerned with the standard of education, it held thus: at page
421 :
“10. There is, however, an exception to this and it is
that the standards of education are not a part of
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body politic and are dictated by considerations of the
advancement of the country and its people. Therefore,
if universities establish the syllabi for examinations
they must be followed, subject however to special
subjects which the institutions may seek to teach, and
to a certain extent the State may also regulate the
conditions of employment of teachers and the health
and hygiene of students. Such regulations do not bear
directly upon management as such although they may
indirectly affect it. Yet the right of the State to regulate
education, educational standards and allied matters
cannot be denied. The minority institutions cannot be
allowed to fall below the standards of excellence
expected of educational institutions, or under the
guise of exclusive right of management, to decline to
follow the general pattern. While the management
must be left to them, they may be compelled to keep in
step with others.”
10.2. A Constitution Bench of nine Hon’ble Judges in the case
of Ahmedabad St. Xavier’s College Society v. State of
Gujrat, (1974) 1 SCC 717, highlighted the need for
maintaining high standard of excellence in education in the
minority institution and it opined that some State made
regulations can be applied to achieve the said objective. The
relevant observations of the Supreme Court are as under at page
745 :-
“20. The right conferred on the religious and
linguistic minorities to administer educational
institutions of their choice is not an absolute right.
This right is not free from regulation. Just as
regulatory measures are necessary for maintaining
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institutions similarly regulatory measures are
necessary for ensuring orderly, efficient and sound
administration. Das, C.J., in the Kerala Education
Bill case summed up in one sentence the true meaning
of the right to administer by saying that the right to
administer is not the right to mal-administer.” , at
page 748 :
“Para 30…”An educational institution runs smoothly
when the teacher and the taught are engaged in the
common ideal of pursuit of knowledge. It is, therefore,
manifest that the appointment of teachers is an
important part in educational institutions. The
qualifications and the character of the teachers are
really important. The minority institutions have the
right to administer institutions. This right implies the
obligation and duty of the minority institutions to
render the very best to the students. In the right of
administration, checks and balances in the shape of
regulatory measures are required to ensure the
appointment of good teachers and their conditions of
service. The right to administer is to be tempered with
regulatory measures to facilitate smooth
administration. The best administration will reveal no
trace or colour of minority. A minority institution
should shine in exemplary eclectism in the
administration of the institution. The best compliment
that can be paid to a minority institution is that it
does not rest on or proclaim its minority character.
31. Regulations which will serve the interests of the
students, regulations which will serve the interests of
the teachers are of paramount importance in good
administration. Regulations in the interest of
efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony
among affiliated institutions.
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32. Education should be a great cohesive force in
developing integrity of the nation. Education develops
the ethos of the nation. Regulations are, therefore,
necessary to see that there are no divisive or
disintegrating forces in administration.” at page 784 :
“95. It has not been disputed on behalf of the
petitioners that if the State or other statutory
authorities make reasonable regulations for
educational institutions, those regulations would not
violate the right of a minority to administer
educational institutions. We agree with the stand
taken by the petitioners in this respect. It would be
wrong to assume that an unrestricted right as in
Article 30 postulates absence of regulations.
Regulations can be prescribed in spite of the
unrestricted nature of the right. The unrestricted
nature of the right connotes freedom in the exercise of
the right. Even the words “freedom” and “free” have
certain limitations. In James v. Commonwealth 16 the
Privy Council dealt with the meaning of the words
“absolutely free” in Section 92 of the Constitution of
Australia. It was said:
”Free” in itself is vague and indeterminate. It must
take its colour from the context. Compare for
instance, its use in free speech, free love, free dinner
and free trade. Free speech does not mean free
speech; it means speech hedged in by all the laws
against defamation, blasphemy, sedition and so forth;
it means freedom governed by law….”
10.3. The Supreme Court further considered this issue in Lily
Kurian v. Lewina (1979) 2 SCC 124. It followed the Kerala
Education Bill in paragraph 28 of this report which is extracted
here under below :-
Patna High Court CWJC No.10935 of 2021 dt.08-10-2024
46/65“We have already observed that Article 30 (1) gives
two rights to the minorities, (1) to establish and (2) to
administer, educational institutions of their choice.
The right to administer cannot obviously include the
right to maladminister. The minority cannot surely
ask for aid or recognition for an educational
institution run by them in unhealthy surroundings,
without any competent teachers possessing any
semblance of qualification, and which does not
maintain even a fair standard of teaching or which
teaches matters subversive of the welfare of the
scholars. It stands to reason, then, that the
constitutional right to administer an educational
institution of their choice does not necessarily militate
against the claim of the State to insist that in order to
grant aid the State may prescribe reasonable
regulations to ensure the excellence of the institutions
to be aided.” (emphasis supplied)at page 135 :
“29. Thus, a contention based on the absolute
freedom from State control of the minorities’ right to
administer their educational institutions was
expressly negatived in this case. The Court clearly
laid down a principle, namely, a regulation, which is
not destructive or annihilative of the core or the
substance of the right under Article 30 (1), could
legitimately be imposed.”
10.4. In the case of Frank Antohony Public School
Employees’ Association v. Union of India, (1986) 4 SCC 707,
the Court observed as under :-
“The excellence of the instruction provided by an
institution would depend directly on the excellence of
the teaching staff, and in turn, that would depend on
the quality and the contentment of the teachers.
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47/65Conditions of service pertaining to minimum
qualifications of teachers, their salaries, allowances
and other conditions of service which ensure security,
contentment and decent living standards to teachers
and which will consequently enable them to render
better service to the institution and the pupils cannot
surely be said to be violative of the fundamental right
guaranteed by Article 30 (1) of the Constitution. The
management of a minority Educational Institution
cannot be permitted under the guise of the
fundamental right guaranteed by Article 30 (1) of the
Constitution, to oppress or exploit its employees any
more than any other private employee. Oppression or
exploitation of the teaching staff of an educational
institution is bound to lead, inevitably, to discontent
and deterioration of the standard of instruction
imparted in the institution affecting adversely the
object of making the institution an effective vehicle of
education for the minority community or other
persons who resort to it. The management of minority
institution cannot complain of invasion of the
fundamental right to administer the institution when it
denies the members of its staff the opportunity to
achieve the very object of Article 30 (1) which is to
make the institution an effective vehicle of education.
10.5. The Constitution Bench of Eleven Hon’ble Judges again
considered this issue along with the admission in the
professional colleges in T.M.A. Pai Foundation and others v.
State of Karnataka and others, (2002) 8 SCC 481. The
following paragraphs are relevant in the present controversy:-
“The right to establish an educational institution can
be regulated; but such regulatory measures must, in
general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure
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48/65(including qualified staff) and the prevention of
maladministration by those in charge of management.
The fixing of a rigid fee structure, dictating the
formation and composition of a governing body,
compulsory nomination of teachers and staff for
appointment or nominating students for admissions
would be unacceptable restrictions.”
10.6. Subsequently, the Supreme Court again considered the
same issue in P.A. Inamdar and others v. State of
Maharashtra and others, (2005) 6 SCC 537. Paragraph 103 is
relevant in the present case which is extracted here under
below:-
“To establish an educational institution is a
fundamental right. Several educational institutions
have come up. In Kerala Education Bill “minority
educational institutions” came to be classified into
three categories, namely, (i) those which do not seek
either aid or recognition from the State; (ii) those
which want aid; and (iii) those which want only
recognition but not aid. It was held that the first
category protected by Article 30 (1) can “exercise that
right to their hearts’ content” unhampered by
restrictions. The second category is most significant.
Most of the educational institutions would fall in that
category as no educational institution can, in modern
times, afford to subsist and efficiently function without
some State aid. So it is with the third category. An
educational institution may survive without aid but
would still stand in need of recognition because in the
absence of recognition, education imparted therein
may not really serve the purpose as for want of
recognition the students passing out from such
educational institutions may not be entitled to
admission in other educational institutions for higher
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49/65studies and may also not be eligible for securing jobs.
Once an educational institution is granted aid or
aspires for recognition, the State may grant aid or
recognition accompanied by certain restrictions or
conditions which must be followed as essential to the
grant of such aid or recognition.”
10.7. In the case of Secretary, Malankara Syrian Catholic
College v. T. Jose, (2007) 1 SCC 386, the Supreme Court
reiterated the earlier law in following terms:-
“The general principles relating to establishment and
administration of educational institution by minorities
may be summarised thus:
(i) The right of minorities to establish and administer
educational institutions of their choice comprises the
following rights:
(a) to choose its governing body in whom the
founders of the institution have faith and confidence
to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and
Headmasters/Principals) as also non-teaching staff,
and to take action if there is dereliction of duty on the
part of any of its employees;
(c) to admit eligible students of their choice and to set
up a reasonable fee structure;
d) to use its properties and assets for the benefit of the
institution.
(ii) The right conferred on minorities under Article 30
is only to ensure equality with the majority and not
intended to place the minorities in a more
advantageous position vis-à-vis the majority. There is
no reverse discrimination in favour of minorities. The
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50/65general laws of the land relating to national interest,
national security, social welfare, public order,
morality, health, sanitation, taxation, etc. applicable
to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational
institutions is not absolute. Nor does it include the
right to maladminister. There can be regulatory
measures for ensuring educational character and
standards and maintaining academic excellence.
There can be checks on administration as are
necessary to ensure that the administration is efficient
and sound, so as to serve the academic needs of the
institution. Regulations made by the State concerning
generally the welfare of students and teachers,
regulations laying down eligibility criteria and
qualifications for appointment, as also conditions of
service of employees (both teaching and non-
teaching), regulations to prevent exploitation or
oppression of employees, and regulations prescribing
syllabus and curriculum of study fall under this
category. Such regulations do not in any manner
interfere with the right under Article 30 (1).
(iv) Subject to the eligibility conditions/qualifications
prescribed by the State being met, the unaided
minority educational institutions will have the
freedom to appoint teachers/lecturers by adopting any
rational procedure of selection.
(v) Extension of aid by the State does not alter the
nature and character of the minority educational
institution. Conditions can be imposed by the State to
ensure proper utilisation of the aid, without however
diluting or abridging the right under Article 30 (1)”
“Aided institutions give instruction either in secular
education or professional education. Religious
education is barred in educational institutions
maintained out of the State funds. These aided
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51/65educational minority institutions providing secular
education or professional education should
necessarily have standards comparable with non-
minority educational institutions. Such standards can
be attained and maintained only by having well-
qualified professional teachers. An institution can
have the services of good qualified professional
teachers only if the conditions of service ensure
security, contentment and decent living standards.
That is why the State can regulate the service
conditions of the employees of the minority
educational institutions to ensure quality of
education. Consequently, any law intended to regulate
the service conditions of employees of educational
institutions will apply to minority institutions also,
provided that such law does not interfere with the
overall administrative control of the management
over the staff.”
” We may also recapitulate the extent of regulation by
the State, permissible in respect of employees of
minority educational institutions receiving aid from
the State, as clarified and crystallised in T.M.A. Pai.
The State can prescribe:
(i) the minimum qualifications, experience and other
criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without
interfering with the overall administrative control by
the management over the staff,
(iii) a mechanism for redressal of the grievances of
the employees,
(iv) the conditions for the proper utilisation of the aid
by the educational institutions, without abridging or
diluting the right to establish and administer
educational institutions.
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10.8. Thus, in the light of the above referred dictum, in my
considered opinion, all laws made by the State to regulate the
administration of educational institutions and grant of aid will
apply to minority educational institutions also. But if any such
regulations interfere with the overall administrative control by
the management over the staff, or abridges/dilutes, in any other
manner, the right to establish and administer educational
institutions, such regulations, to that extent, will be inapplicable
to minority institutions.”
10.9. In the case of Sindhi Education Society v. Chief
Secretary, Government of NCT of Delhi, (2010) 8 SCC 49,
the Supreme Court observed as under :-
“Last of the judgments, which has some bearing on
the subject in question, is on the principle reiterated
by a Bench of this Court in Malankara Syrian
Catholic College, where the Court again dealt with
the aided minority educational institutions and terms
and conditions of services of employees. The Court in
para 12 of the judgment framed the following two
questions: (SCC p. 393)“12. The rival contentions give rise to the following
questions:
(i) To what extent, the State can regulate the right of
the minorities to administer their educational
institutions, when such institutions receive aid from
the State?
(ii) Whether the right to choose a Principal is part of
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53/65the right of minorities under Article 30 (1) to
establish and administer educational institutions of
their choice. If so, would Section 57 (3) of the Act
violate Article 30 (1) of the Constitution of India?”
10.10. The answer to Question (i) was provided in para 21
while Question (ii) was answered in paras 27 and 28 of the
judgment which read as under: (SCC pp. 400 & 404)
“21. We may also recapitulate the extent of regulation
by the State, permissible in respect of employees of
minority educational institutions receiving aid from
the State, as clarified and crystallised in T.M.A. Pai.
The State can prescribe:
(i) the minimum qualifications, experience and other
criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without
interfering with the overall administrative control by
the management over the staff,
(iii) a mechanism for redressal of the grievances of
the employees,
(iv) the conditions for the proper utilisation of the aid
by the educational institutions, without abridging or
diluting the right to establish and administer
educational institutions.
10.11. A common thread running through all these judgments,
in my considered opinion, under the umbrella of Article 30 (1)
the minority Institutions do not have absolute right. The State
may regulate service condition of teaching staff. In absence of
job security, talented teachers, even of their own religion will
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not like to serve in an institution where Damascus sword is
always hanging over their head. A minority institution which
receives aid out of the State Fund owes a greater responsibility
to the society as the children of the minority are entitled to get
same standard of education like in the State run or other private
institution, otherwise the students belonging to minority would
not be able to compete with other students who are fortunate
enough to get quality education in the other institutions. If the
law gives free hand to the management of a minority institution
to appoint and remove the teachers in an autocratic way then it
will tend to adopt hire and fire policy under the protection of
Article 30 (1) of the Constitution. In such situation, the ultimate
sufferer would be the students of the minority institution. If a
sizable section of society is left behind and they are unable to
join the mainstream of the country. Then the task of the nation
building which was envisaged by the founding fathers of the
Constitution will remain a mirage.
10.12. Therefore, it must be prime concern of the state to apply
the regulations to minority institution to achieve the objectives
discussed in above noted decisions of the Supreme Court. Only
then we can build a modern, progressive and secular Country.
Thus seen, all laws made by the State to regulate the
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administration of educational institutions and grant of aid will
apply to minority educational institutions also. But if any such
regulations interfere with the overall administrative control by
the management over the staff, or abridges/dilutes, in any other
manner, the right to establish and administer educational
institutions, such regulations, to that extent, will be inapplicable
to minority institutions. The right to establish and administer
educational institutions is not absolute. Nor does it include the
right to maladminister. There can be regulatory measures for
ensuring educational character and standards and maintaining
academic excellence. There can be checks on administration as
are necessary to ensure that the administration is efficient and
sound, so as to serve the academic needs of the institution.
10.12. It is not in dispute that the college in question is a
recognized minority educational institution in terms of Article
30 of the Constitution of India and it has been conferred upon
with the right to establish and administer an educational
institution which, inter alia, includes the powers to make
appointments against the post of teachers and other members of
staff at the college against the sanctioned post but it has to
adhere to the prescriptions laid down with respect to educational
qualification and other eligibility criteria under the relevant Acts
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and Statutes.
10.13. Now, I come to the issue in hand. Section 57 of the
Bihar State Universities Act, 1976 provides for appointment to
the post of Teachers in Universities and their constituent
colleges. Section 57A of the Act provides for procedure of
selection to be prescribed by the Statute for appointment of
Teachers in such affiliated colleges which are not governed by
the State Government or not funded by the Universities. The
selection is to be processed by the Selection Committee
constituted by the University under section 57B of the Act.
10.14. The Bihar State Universities (Amendment) Act, 2013
(‘Amendment Act, 2013’ in short) published in the Bihar
Gazette (Extraordinary) on 14.8.2013, by clause (4) thereof
provided that section 57A of the Act shall be substituted by the
following which is extracted herein below:
“57 A-Procedure of selection to be prescribed
by the statute.- (1) Subject to the provisions of
this Act and Statutes made thereunder, for
appointment of teachers in such affiliated
Colleges, which are not governed by the State
Government or not funded by the Universities,
the applications from the candidate fulfilling the
qualifications prescribed under clause (iii) of
sub-section (1) of section 57 of this Act shall be
invited by the Governing Body of the College
concerned. The selection shall be processed by
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57/65the Selection Committee constituted by the
University under the provisions contained in
section 57B of this Act.
(2) In making recommendations on the basis of
interview of the candidates holding the above
mentioned qualifications the rules or reservation
shall be adhered by the Selection Committee.
(3) The recommendation made by the Selection
Committee shall remain valid for one year from
the date of the recommendation. Within six
months from the date of recommendation of the
Selection Committee; the College administration
shall process the appointment/promotion in
order of preference laid down by the Selection
Committee.
(4) With regard to the appointment, promotion,
dismissal, discharge, removal from service and
termination of service or demotion of teachers in
affiliated Colleges, the action shall be taken in
the manner prescribed after making consultation
with the above mentioned Selection Committee.
(5) The appointments, promotions, dismissal,
removal and termination of service of teachers
in the minority colleges affiliated on the basis of
religion and language may be made and
disciplinary action against them shall be taken
by the governing body of those colleges with
with the approval of the Selection Committee
constituted by the University;
Provided that, where the order concerned is
limited to only ensure, withholding increment,
against a teacher or his/her suspension till the
investigation of charges, in such cases the
consultation with the Selection Committee shall
not be necessary.”
10.15. By clause (5) of the said Amendment Act, 2013,
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section 57B of the Act which deals with constitution of
Selection Committee was substituted by the following:
“57B. Constitution of Selection Committee.
(1) The Selection Committee for appointment
to the posts of Assistant Professor, Principal in
affiliated colleges shall be constituted by the
University as follows:-
(i) The Chairman of the governing body of the
college or the person nominated by the
governing body, who being one of its members,
shall be the Chairman of the Selection
Committee.
(ii) Principal of the College.
(iii) Head of the department of the faculty
concerned in the College.
(iv) Three experts, not below the rank of
professor and two out of them should be
experts of the subject, shall be nominated by
the Vice-chancellor of the concerned
University. In case of such colleges, which
have been notified/declared as minority
educational institution, three persons
nominated on behalf of the Chairman of the
College who shall be from the list of five
persons preferably from the minority
community and who have been recommended
by the Vice-Chancellor of the University
concerned from the panel of experts proposed
by the Academic Council of the University
concerned and three persons out of them
should be subject experts.
(v) The Governing body of the College may
nominate two such subject experts who are not
connected with that college and those persons
have been recommended by the Vice-
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Chancellor out of the panel of Subject Experts
approved by the Academic Council of the
University Concerned.
(vi) An academician representing SC/ST/OBC/
Minority/Women/Differently-abled categories,
if any of candidates representing these
categories it the applicant, to be nominated by
the Vice-Chancellor, if any of the above
members of the selection committee do not
belong to that category.
(vii) presence of five members of the Selection
Committee, which shall include three subject
experts, shall form the quorum for the meeting or
the Selection Committee.”
10.16. Thus, from the above provisions, it would transpire that
Section 57A(1) dealt with appointment of Teachers of affiliated
colleges not maintained by the State Government by a Selection
Committee, Section 57A (2) dealt with the quorum of the
Selection Committee and the manner in which it has to make its
recommendation. The newly added Section 57B (by the
Amendment Act, 2007) provided that the Selection Committee
constituted shall be bound by the procedure of selection
prescribed by the Statute to be framed by the University. This
view has recently been affirmed by a Division Bench of this
Court vide judgment dated 23.08.2023 passed in C.W.J.C.
No.14793 of 2017 (Noor Alam Khan v. State of Bihar &
Ors.).
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10.17. It is pertinent to point out here that in the case of Noor
Alam (supra), a challenge was made to the vires of Section 57
(A) of the Act and the same has been upheld by the Hon’ble
Division Bench of this Court and it has been held in para-15,
which is reproduced herein below:
“15. As seen above, though the constitution of
the Selection Committee is predominantly of
persons from college itself, nevertheless by
introducing as many as six nominated persons
in the Selection Committee (under the newly
amended section 57B) and further by making
the decision of the Governing Body of the
minority colleges subject to the approval of the
said Selection Committee, in the opinion of the
Court, the same infringes with the rights of the
minorities (as provided under Art 30) to
establish and administer educational
institutions of their choice. It may also be noted
here that while section 57A(4) which deals with
the teachers in affiliated colleges talks about
‘consultation’ with the Selection Committee,
section 57A(5) which deals with the teachers in
the minority colleges talks about actions being
taken in their case by the governing body with
the ‘approval’ of the Selection Committee. In
the opinion of the Court, by use of the word
‘approval’ in sec 57A(5) the intention could not
have been to violate the constitutional provision
as contained in Art 30, but it would be an
effective consultation as contemplated under
sec 57A(4). Thus in the opinion of this Court the
word ‘approval’ will have to be read down
accordingly.”
10.18. On bare perusal of the judgment passed in the case of
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Noor Alam (supra), it appears that the Hon’ble Division Bench
has nowhere said that the selection committee will not be
constituted as per the mandate of Section 57B of the Act, rather
the University has been given the responsibility to verify the
qualifications of members of the selection committee and the
selected teachers.
10.19. Prior to the judgment passed in the case of Noor Alam
(supra), in the case of S.M. Zaheer Alam Vs. National Council
for Teacher Education (NCTE) and others (C.W.J.C. No.10283
of 2019) vide judgment dated 14.10.2020, the Division of this
Court has also considered the aforesaid aspect of the matter,
after considering catena decisions of the Hon’ble Supreme
Court and in para-25 thereof has been pleased to hold as under:
“Section 57B of the Bihar State Universities
Act, 1976, is the impugned provision having
been challenged on the ground that this
provision infringes upon the right of the
minorities to administer the institution as
they cannot ask the minority institution as to
whether the selection has been done on the
guidelines provided under Section 57B of the
Bihar State Universities Act, 1976. In the
case of The Ahmedabad St. Xaviers College
Society and another (supra) it has been held
that minority institution has a right to select
the persons of their choice and it includes the
constitution of the management. The
constitution of Selection Committee is one of
the most important facets and concomitant of
running the administration of private
institution. So, the University under the
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members of the selection Committee did have
requisite qualification but, cannot control the
activities of the management of the
institution. So, Section 57B of the University
Act should be read down in the manner that
University Commission will have to verify as
to whether those who have been members of
the Selection Committee, satisfy the proper
qualification as has been provided under
Section 57B of the Bihar State Universities
Act 1976, to ensure that a fair procedure has
been followed in the matter of selection of
teachers and it has also to be ensured that
the teacher who have been appointed possess
the necessary and proper qualification
prescribed by the University in order to
maintain the teaching standard of the college
to ensure that the students who are being
taught by those teachers, must be able to
compete with the products of other
institutions. So, the letter dated 27.04.2019 is
to be read down in the manner that the
college will be obliged to produce the records
in order to show that the persons who were
the member in the Selection Committee are
qualified persons and those persons who
have been selected as teachers are
possessing the necessary and requisite
qualification. The University cannot interfere
with the management of the institution but,
they have authority to regulate.”
10.20. On careful perusal of the above said judgment, it is
apparent that the Hon’ble Division bench has nowhere said that
selection committee will not be constituted as per the mandate
of Section 57B of the Bihar State Universities Act, 1976. Rather
the University has been given the responsibility to verify the
qualifications of members of the selection committee and the
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selected teachers.
10.21. It would not be out of place to state that none of the
respondents has either whispered a single word during course of
argument or brought on record that the Selection Committee of
the college concerned was constituted in compliance of the
provisions enshrined in Section 57A and 57B in Bihar State
Universities Act.
10.22. At the cost of repetition, it needs to be clarified that if
the minority institution has a better candidate available than the
one nominated under a regulatory regime, the institution would
certainly be within its rights to reject the nomination made by
the authorities but if the person nominated for imparting
education is otherwise better qualified and suitable, any
rejection of such nomination by the minority institution would
never help such institution.
10.23. From the above discussions, it is evident that in case of
Minority Institution, Chairman of the College has right to
nominate, three expert out of the list of five persons preferably
from Minority Community and who have been recommended by
the Vice-Chancellor from the panel of experts proposed by the
Academic Council of the University. Therefore, the Governing
Body of the College has vital role in constitution of Selection
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Committee. According to the Act, the University has only role to
provide a list of qualified experts out of whom the Chairman of
the Governing Body will nominate from expert and i.e. the
preferably of Minority Community. Thus, even after
introduction of new Section 57A and 57B in Bihar State
Universities Act, the Selection Committee is predominantly of
persons from the college itself. In the present case, the
Selection Committee was constituted and the entire selection
process has been conducted in complete breach of Section 57 B
of the Act as quorum required for Selection Committee was
totally missing, rendering the constitution of interview board,
illegal and arbitrary.
Conclusion
11. Considering the entire conspectus of the case and the
discussions made in foregoing paragraphs as well as the fact that
both issues have been decided in favour of the petitioners, the
Advertisement published in the Hindi daily Hindustan dated
06.10.2019 issued by the Secretary, Governing Body, Mirza
Ghalib College, Gaya is hereby quashed and this writ
application is allowed but no order as to cost. The Governing
Body, Mirza Ghalib College, Gaya is directed to issue fresh
advertisement and constitute a Selection Committee afresh in
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compliance of the provisions of the Bihar Universities Act and
take further necessary steps in accordance with law.
11.1. As a sequel to the aforesaid, Interlocutory Application (s),
if any, shall also disposed of accordingly.
(Anjani Kumar Sharan, J.)
Trivedi/-
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