 with a cost of Rs 50,000 filed against the continuance of the private respondent in the post of Controller of Examinations with the Aryabhatta Knowledge University.){kind=link}
The Patna High Court dismissed a Public Interest Litigation (PIL) with a cost of Rs 50,000 filed against the continuance of the private respondent in the post of Controller of Examinations with the Aryabhatta Knowledge University.
In the nature of the orders to be passed in the above petition, the Bench briefly referred to what transpired on the last date.
On 25.08.2023, when the matter was called P.K. Shahi, Senior Counsel appearing for the 7th respondent specifically pointed out that the Chancellor of the University had conducted an enquiry into the specific allegations raised herein, against the 7th respondent and found his appointment and continuance to be proper.
A copy of the communication issued from the office of the Chancellor specifically recording the satisfaction of the Chancellor, based on the report of enquiry, was also produced in the petition.
The Senior Counsel also pointed out that the 7th respondent has been constantly harassed by one complaint or the other and the present writ petition in the nature of a Public Interest Litigation is another attempt at witch-hunting. Earlier, based on a complaint filed by a person, who had also approached the Court with similar contentions, but later sought for withdrawal of the petition to agitate his cause before the Chancellor, an enquiry was conducted; which culminated in the satisfaction of the Chancellor about the credentials of the 7th respondent to continue in the post of Controller of Examinations. The Senior Counsel also prayed for exemplary costs, in which circumstances the High Court directed the counsel appearing for the petitioner to seek instructions from his client as to whether he would want to pursue the matter, especially since the petition seeks a writ of quo warranto against the continuance of the 7th respondent in the post of Controller of Examinations with the respondent University; which was found to be proper by the Chancellor himself. Rajeev Kumar Singh, counsel appearing for the petitioner sought time to seek instructions from the petitioner as to whether he would like to pursue the matter.
On September 13 , when the matter was called for hearing, , the Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy specifically queried him as to whether he was aware of what transpired on the last occasion and the demand for exemplary costs made by the 7th respondent. S.D. Sanjay , Senior Counsel not only wanted to pursue the matter but also raised a preliminary objection regarding the appearance of P.K. Shahi for the private respondent, who is also the Advocate General of the State. On such preliminary objection raised, the Bench queried S.D. Sanjay as to whether he wants to press the issue, especially when there is no conflict with the interest of the State and it involves the right of a litigant to have a lawyer of his choice to defend him in a Court of law. Wiser counsel prevailed and S.D. Sanjay withdrew the preliminary objection raised, but still insisted on arguing the matter.
The Senior Counsel for the petitioner would contend that there are two specific issues raised to challenge the appointment and continuance of the 7th respondent, as the Controller of Examinations. Learned Senior Counsel specifically took us to Section 8(b) of Chapter I of the Statutes of Aryabhatta Knowledge University, which according to him, mandates that the appointment of Controller of Examination should be for a tenure of three years. When we pointed out that the specific provision speaks of an appointment for a term of three years or as decided by the Executive Council, the learned Senior Counsel urged that there is neither a decision taken by the Executive Council to appoint the person for a period exceeding three years nor is the 7th respondent reappointed, after the initial term of three years.
The next ground taken by the petitioner is insofar as the educational qualification required for the post, as advertised being different from that prescribed by the University Grants Commission (U.G.C.). It was the specific contention that the essential qualification prescribed for appointment as coming out from the advertisement, was not in consonance with the minimum eligibility criteria for the post of Controller of Examinations prescribed by the U.G.C. It is also pointed out that the degree obtained by the petitioner was not a post graduate degree, but a mere diploma, as found by the Court, which disqualifies the petitioner from appointment to the post of Controller of Examinations and his continuance. The petitioner also would place on record the decisions of the Court which travelled up to the Supreme Court wherein the qualification of M.Sc. (Engineering), as claimed by the petitioner, from Babasaheb Bhimrao Ambedkar Bihar University was found to be not one entitled to be treated as a post graduate qualification. The decisions were filed along with the reply to the counter affidavit, which was not available on record. A copy was made available across the Bar and the High Court looked into it, since the reliance placed was on the judgments passed by the Court and the Supreme Court. It is also pointed out that the Accountant General of Bihar by had questioned the continuance of the 7th respondent beyond the three-year period.
P.K. Shahi, Senior Counsel appearing for the 7th respondent pointed out from the counter affidavit that the audit objection was replied to, by the University vide Communication dated 19.08.2017, pointing out that the Advertisement dated 19.08.2011 was with the purpose and indent to regularize the academic session and to conduct fair examinations for the purpose of which a full time and regular appointment was decided to be made to the post of Controller of Examinations. It is also specifically averred that the Executive Council gave its approval in its 13th meeting (Agenda No. 3) for full appointment to the post of Controller of Examinations. The 7th respondent, who was a Programme Officer (Academic & Examination) in the National Institute of Technology, Patna had applied for the post and was appointed regularly; not confined to a term, which was the intention emanating from the advertisement produced along with the counter affidavit. It is also pointed out that the respondent University by Communication dated 04.09.2017 addressed the Registrar NIT, Patna requesting for the service book of Respondent No. 7. The 7th respondent has thus been validly appointed to the post and continued therein. The satisfaction of the Chancellor, regarding the suitability and eligibility of the 7th respondent to hold the post, is also specifically referred to.
The Bench noted that the appointment of Controller of Examinations could be either for a term of three years or as decided by the Executive Council and even if it is a tenure appointment, a reappointment could be made, by the Executive Council. Admittedly, there is nothing in the advertisement; a reflection of the Executive Council decision, which indicates that the University had intended the selection to be made to the post of Controller of Examinations for a fixed tenure. The Executive Council took a decision to have a regular appointment, in the interest of the institution; which is permissible statutorily. The 7th respondent applied for the post, when he was regularly employed in another institution and he has also specifically averred that it is based on the decision of the Executive Council that there was a regular appointment made to the post of Controller of Examinations. In the context of the specific averments which stands un-controverted, coupled with the advertisement having not restricted the appointment to a specified term , the Bench held that there is no restriction in the nature of a specific tenure for the appointment made as per the advertisement to the post of Controller of Examinations under which the 7th respondent applied. This is also in consonance with the statutory provision relied on by the petitioner.
Insofar as the qualification concerned, the High Court emphasized that the University has prescribed the minimum qualification, which document has been relied on by the petitioner . The minimum qualification is a Masters Degree with at least 55% of marks or its equivalent Grade of ‘B’ in the UGC seven-point scale. The petitioner has an M.Sc. (Engineering) from the respondent University with Grade ‘A’ which he had declared in his application produced along with the counter affidavit of the Respondents ,the officials of the University. The post graduate qualification with Grade ‘A’ satisfies the minimum educational requirement.
A contention was raised as to the qualification prescribed being not in consonance with the minimum requirement of educational qualification, as prescribed by the U.G.C. On a specific query made by us, the Senior Counsel was not able to point out the prescription of the U.G.C., based on which the contention was raised. The said contention was not pressed and reference was made to the judgments of the Court as approved by the Hon’ble Supreme Court which allegedly held the specific qualification to be a mere diploma and not a degree.
The Bench opined that such Public Interest Litigations relating to appointments made in Universities and Government should not be entertained and the Hon’ble Supreme Court has also declared that in service matters, Public Interest Litigations should not be entertained, unless there is a prayer for issuance of a writ of quo warranto (Hari Bansh Lal vs Sahodar Prakash Mahto; (2010) 9 SCC 655). Merely because there is a writ sought, of quo warranto, a PIL cannot be entertained if wild and reckless allegations are made without examining the sustainability of the contentions; thus leading to besmirching the character of others.
Considering the totality of the circumstances coming out form the above case, the Bench opined that the petition is to be dismissed with exemplary costs. The High Court gave the petitioner enough elbow room at the outset itself, especially in the context of the Chancellor himself having examined the complaints against the 7th respondent and found no fault with his appointment. The Senior Counsel for the petitioner, however, raised a contention that the enquiry report was not produced; which the petitioner ought to have taken efforts to obtain, if necessary, by an application under the right to information.
“The litigant invoking the extraordinary jurisdiction on perceived public interest cannot reduce the exercise to a mere fishing expedition to collect data and documents to strengthen the allegations raised. Adequate research should be carried out and a meticulous examination of the contentions, their tenability and sustainability, before this special jurisdiction is invoked, as held in Gurpal Singh (supra). We quantify the costs at Rs.50,000/- which the petitioner would pay to the 7th respondent within a period of one month from today either by a Demand Draft or through the respondent University. If the amount is not paid within the specified time, then the Bihar State Legal Services Authority shall recover the amount from the petitioner as ‘Amounts Due on Land Revenue’ in which circumstance there shall be an additional amount of Rs. 15,000/- recovered, which shall be appropriated by the Bihar State Legal Services Authority for the benefit of legal services carried out by the Authority within the State and to defray the expenses in ensuring recovery of the costs. Rs. 50,000/- shall be paid over to the 7th respondent”, the order reads.