DR. RAI SHIVENDRA BAHADUR versus THE GOVER.NFNG BODY OF THE NALANDA COLLEGE

144 SUPREME COURT REPORTS fl962] SUt>P.

1961

DR. RAI SHIVENDRA BAHADUR

f}. THE GOVER.NfNG BODY OF THE NALANDA COLLEGE

.,

(B.P. ScNHA, C. J .. J. L. KAPUR, M. HmAYA.TULLAK, . •

J.C. SHAH and.J. R. MuDHOLK.\R, JJ.; Wrif of Ma11da011J.1-.\'alarula College ajJlliaUd lo BiMr Uni•:eraity-Appoinlmenl of Principal-Legal r;ght, if anv toil4- regard to que.trion of appointmu•t-lf and when writ can w .. Unit'<r.<it.~ of Bihar Ael 1951 (Bih1r 27 of 1951), Univeraily Statute XV 1-Con•litution of India, Art, 226.

The appellant"was appointed as the Principal ofNalanda College affiliated to the Bihar L'nivenity in 1958. As requir. ed by the University Statute XVI this fact was intimated to the University, bHt the appointment w•s not approved by the Syndicate as required by Art. 5, of the Untveristy Statute, In 1960 a new governing body resolved to appoint a new prin r.ipal and decided that in the mr.antime the appellant was to continue to act till the new appointment was made. The governing body interviewed candidates including the appellant and by a resolution authorised iu Chairman to make a final selection. The validity of the selection of the Principal was challenged by the appellant under Art. 226 of the Constitu tion by asking a w.itc of mandamua to issue.

Held, that in order that mandam"8 may issue to compel the authorities to di) somthing, it must be shown that the statute im(>OICS a legal duty and the aggrieved p«rty had a legal right und"}' the statute to enforce its performanc¢

In the instant case it has not been sh~wn th~t there was any right in the appellant which can l>e enforced by a writ of mandomua.

CrvIL APrEJ,LA.TE JURISDICTION : Civil Appeal

No. 403 of 1961.

Appeal by special leave from th11 judgment and order dated July 19, 1961 of the Patnr. Judicia.I C\se No . .Wi of 1961. High Court in Mi8c. Bcwdeva PrlWJ!l and Naumt Lal,, for the

Appellant.

N. 0. Ohatterjee, D. P. Singh, R. K; Garg, 8 .. C. Agarwala and M. K. Ramamurlhy, for the respondents.

2 S.C.R;

SUPREME COURT REPORTS

145

1961. December 15. The Judgment of the

1961

Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalantia Collete

EflpurJ.

Court was delivered by

KAPUR, J.-This is an appeal by special leave against the judgment an<f order of the High Court of Patna dismis8ing the appellant's petition under Art. 226 of the Constitution. The respondents are t.he Governing Body of the Nalanda College, its President Mr. Krishna Kant Singh, its Secretary Mr. K. B. P. N. Singh and Mr. Ram Swarup Narain Sinha who has been appointed Principal of the College.

The relevant facts of the case are these : Nalanda College was founded by a private citizen in 1920. It became a degree college in 1945 and was affiliated to the Bihar University in 1951. In March 1953, Mr. D.P. Srivastava who was a Govern ment servant was appointed its Principal but the Government withdrt;'\\'. him on February 4, 1958. It is :j,lleged that At an extraordinary ilneeting of the Governing Body of the College held on February 23, J 958 the appellant was appointed its Principal and the University were informed of this appointment as required by the University Statutes and he actually took charge of his office on July 11, 1958. At a meeting on July 27, 1958 the appointment made on February 23, 1958 was confirmed. On November 9, 1959, there was a change in the con stitution of the Governing Body and respondent ~o. 2 became its Chairman. The Governing Body reconsidered the proceedings of February 23, 1958 and at a meeting on January 31, 1960, the Gover ning Body resolved to appoint a new Principal. In the meanwhile it !Iecided that the appellant should continue to act till a new appointment was·made. At this meeting the appellant, as an ex-officio member, was present. He alleges that he complained about this appointment to the Vice-Chancellor of the Bihar University and he was, by a letter, advised by the Vice-Chancellor to watch and see what

1Hl

Dr. Ra• Shivtf'Wa B•ltad!lr v. Tb,, 0flJtr'llin1 Botl.J of the l( alada Colltgt

Kapw J.

146 SUPREME COURT REPORTS [1962) SUPP

happens. On May 14, 1960 the Governing Body resolved to advertise the post. At this meeting also the appellant was present and on September 26, 1960 the Governing Body resolved to readvertise the post. Some candidates including the appellant were interviewed by the Governing Body and on December 18, 1960 it passed a resolution authori sing the Chairman to make a selection from amongst the candidates who had been interviewed, and who included the appellant. In accordance with this resolution the Presid!'nt, respondent-No. 2, apf>oin ted respondent No. 4 aa the Principal of the College. He was at that time a. Principal of another College in Bihar. On April 18, 1961 the appellant was asked to hand over charge to the new ·appointee by May 6, 1961. The petitioner thereupon filed a petition under Art. 226 of the Constitution challeng ing the validity of the appointment of respondent No. 4 as Pr.incipal on the ground that the appellant's and appointment was never terminated if resolution there was any resolution by which of February 23, 1958 was rescinded or cancel· led, included in illegal as it was not the agenda. to be tra.nsa.cted and was void because of certain provisions in the University Statute fram ed under the University of Bihar Act, 1951 (Act 27 of 1951 ), which ha.cl the force of law; that the appointment of the New Principal WM invalid because the appointment had to be ma.de by the Governing Body of the College at its meeting and the power could not be delegated to the President or the Secretary; that the appointment was not approved by the University and the appellant was a better candidate than respondent No. 4 and he was entitled to promotion under Art. 4(1 )(b) of Statute XVI.

it was

These allegations were denied by the respon dents. They pleaded that the resolution of Feb ruary 23, 1958 was not valid because it did not consider the case of other teachers for promotion;

1961

Dr. R.i Shiv~ndra Bahcdur v: The Governint Bei_,~ • f the .N alan•c Collitt

Ka1nJr J.

2 S.C.R.

SUPREME COURT REPORTS

147

that the appointment JJf the appellant was ne..-er approved by the Syndicate as required by Art. 5 of Statute XVI; that the appellant having himself applied for the post of Principal after the resolu tions were passed by the new Governing Body and having offered himself for interview before the Governing Body could not challenge tbe legality of the appointment as he could not approbate and reprobate.

The High Court held that the appellant's appointment was not valid as the Syndicate had not given its approval and the petitioner had been allowed to join the post of Principal without such approval; that the decision of the Governing Body to advertise for the post of Principal was neither a case of punishment nor termination of service nor was ·it a demotion of the appellant, therefore it did not fall under Arts. 7, 8 and 9 of the Statutes. It also held that there was no protest from the appellant against the passing of the new resolution and as he submitted himself for selection, he could not now complain if some body else was selected. It was held therefore that the appellant could not challenge the new appointment because (l) his own appointment was not ..-alid and (2) the appointment of respondent No. 4 was valid as it was approved by the University.

A great deal of controversy was raised before us as to whether the Statutes framed by the Uni versity under s. 20 of University of Bihar Act have or have not the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e., whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has .a to enforce legal

bhe Statutes

right under

\

111111

Dr. Rai SAiwndra B""4dur •• r ~ Gowrning Body of U.. Naknd4 c.u.,, K•pvr J.

148 SUPREME OOURT REPORTS [1962] SUPP.

is,

It

however,

performance.

wholly its unneoessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because a.ssum· ing that the contention of the appellant is right that the College is a public body and it has to per form a public duty in the appointment of a Princi pal, it has not been shown that there is any right in the appellant which can be enforced by mandamua. According to the Statutes all appointments of teachers and staff have to be made by the Gover ning Body and no JX rson can be appointed, remov ed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not thatright he cannot come to Court and ask for a writ to issue. It is therefore not nece11S&ry to go into any other question.

In the result the appeal fails and is dismissed, but in the circumstances the parties are left to bear their own costs.

Appeal di8missed.