Chetkar Jha v. Viswanath Prasad Verma & Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2221 of 1966. Appeal from the judgment and decree dated March 8, 1965 ·of the P~tna High Court in Misc. Judicial Case No. 1554 of 1964. H. P. Jha, for the appellant. Bishan Narain, S. S. Jauhar, K. K. Sinha and Mamsh Kumar Sinha, for respondent No. 1. Sarjoo Prasad, R. N. Sinha and U. P. Singh, for respondents ~OS. 3 to 5. The Judgment' of the Court was delivered by Shelat, J, This appeal, by certificate, is directed agaimt the judgment of the High Court of Patna dated March 8, 1965, whereby it set aside the order of the Chancellor of the Unil"ersity of Patna dated September 26, 1964 passed under s. 9( 4) of the Patna University Act, TI! oi 1962 (hereinafter referred to a; the Act), On the retirement o.f one Dr. Muhar as the Umversitl" Professor of Political Science a permanent vacancy occurred fn that post. The Vice-Chancellor of the'

University. after obtaining the approval of the Chancellor for filling up the vacancy by direct recruitment, got the post advertised through the Bihar Public Service Commission. ln his letter requesting the approval, the Vice-Chancellor had stated that he did not propose to lay down any qualifications in addition to those prescribed under the rele· vant University Statute. The advertisement, as published oy the cCommissio.n, announced the necessary qualifications as under : "First or second class Master's degree in the sub· ject of an Indian University or an equivalent qualification of a foreign university. . . . . " 0 c. JHA V, v. P. VERMA (She/at, J.) A little later, the Vice-Chancellor got published through the Commis,ion another advertisement amending the earlier advertisement. The revised advertisement stated the required qualification' "' under :

"First or second ciass Master's degree in Political Science or in an allied subject like History or Economics of an Indian University or an equivalent qualification of a foreign university-." As required by the Act, the State Public Service Commission had to recommend name or names of the candidates for the· cippointment. For this purpose two experts in the subject, Dr. J\-1. P. Sharma of the Saugar University and Dr. Bhaskaran of the Madras University, were to assist the Commission. At the interviews of the candidates taken by the Commission on March ~- 1963 Dr. Sharma was present, but the other expert could not attend. His views, therefore, had to be communicated to the Commission by post. The Commission recommended respondent 1 herein as the candidate suitable for the post. On May 7,_ 1963. the Syndicate of the University which had by that time been constituted under the Act, held its meeting to c0nsider the Commission's recommendation.

The minutes of the meetings. ·as drawn up. stated the resolution said to have been :':"sed by a majority of 9 to 8 in the foJlowing terms : "Not to proc~ed with the question of making this appointment." As appearing from subsequent events, it would seem that the said minutes were not correctlv drafted. The Vice-Chancellor als'.J :ippears to have understood that the decision taken at the said meeting was that the Commission's recommendation was not ::cceptable to the Syndicate and not that the Syndicate was not 10 proceed with the question of making the appointment. Accordingly. at his instance. the Registrar of the University. by his letter dated June 11. 1963. informed the Commission that the Syndicate had resolved not to accept its recommendation and he had, there- :·ore. to request the Commission to reconsider its aforesaid recommendation under s. 26( 4) of the Act. On June 22. 1963. the [OJ.:mission wrote back to sav that it found no reason to reconsider its earlier recommendation.

At the next meeting of the Syndicate held on July 3, 1963, amongst those who were present were 16 out of the 17 members who had attended the previous meeting of May 7. 1963. When the minutes of the previous meeting were placed for confirmation it was found that the minutes as drafted. namely. "not to proceed with the question of making this appointment" did not represent the resolution which was [1971] l S.C,R. .actually passed. Those words were, therefore, scored out and fostead the words "not to accept the recommendation of the Commission" were substituted so as to bring the minutes in conformity with the resolution actually passed. Thereafter the meeting considered the Commission's recommendation and appointed respondent 1 to the post of University Professor for Political Science by a majority of 10 to 3 with f0;,, abstentions.

That the Vice- Chancellor to !et him have his comments on the points raised minutes a§ drafted did not incorporate the resolution actually passed on May 7, 1963 is indicated by the fact that. in his representation to the Chancellor even the appellant himself stated that the Syndicate on May 7, 1963 had decided not to accept the Commission's recommendation. The appellant did, riot state in that representation that the Syndicate had resolved not to pro~eed'with the making of the appointment.

Another circumstance indicating that the said minutes were not correctly drafted was that while 0 the items of confirmation came up before the Sy,ndicate on July 3, 1963, which, as aforesaid, was attended by 16 out of the 17 members who had participated in the previous meeting, none of those 16 members appears to have protested against the change 1D in the language of the minutes on the ground that the .resolution then passed was that the Syndicate would not proceed with the appoinment, or that the resolution actually passed was not one refusing to accept the Commission's recommendation of re<pondent I. Against the resolution dated July 3, 1963 appointing respondent 1, the appellant and Dr. L. P. Siriha, the. Bead of the Department of Political Science, made representations to the Chancellor. Thereupon the Chancellor first called upon the Vice- Chancellor to let him have his comments on the points raised in the said representations.

On July 15, 1963, the Vice-Chan- ..:ellor furnished his comments. Thereafter the Chancellor issued ~how cause notice to the appellant and the Vice-Chancellor and after receiying their replies as also the report of the Legal Affairs Committee appointed by the Syndicate passed the impugned order under s. 9 ( 4) of the Act annulling the Syndicate's resolution of July 3, 1963 by which the appointment of respondent' I was made. Shortly stated the grounds on which the impugrted order was passed were : ( 1 ) (a) that the revised advertisement, which substituted the words "in the ~ubject" qy the words "in Political Science or in any allied subject like Bistory and Economics", had the effect of amending the· Univerc· sity Statute laying down the qualifications for the post, that such an amendment could only be made by framing a new statute under ss. 30 and 31 of the Act and not c. JHA V. V. P. VERMA (She/at, J.) unilaterally by the Vice-Chancellor, and that therefore, the revised advertisement was invalid;

( b) that the words in the University Statute, namely, that the University Professor "shall possess a first or second class Master's degree" meant a Master's degree "in the subject"; consequently: the original advertisement was in conformity with the University Statute relating to the qualifications, and therefore, the revised advertisemeIJ.t by substituting Hie words "in the subject'' by the words "in political Science or in any allied subject" etc. had the effect of amending the Statute and was unauthorised; ( c) that the revised advertisement was also bad, in that, the Vice-Chancellor could not alter the origi1ial advertisement without the previous approval of the Chancellor under s. 57 of the Act; (2) that s.

26(2) of the Act contemplates that the Public Service Commission should take the assistance o! two experts before making its recommendation, that the section required that the experts should be present at the time when the Commission took the interviews of the candida1es, that the interviews, in the absence of one of the two experts, were not valid, that therefore, a recomendation based on such invalid interviews and following such recommendation the appointment made by the Syndicate were both invalid; ( 3) that on a recommendation made by the Commission, the Syndicate had three options. (a) to accept it and proceed to make the appointment, (b) to reject it and refer the matter to the Commission for reconsideration, and ( c) to give up the idea of making the appointment at all; that it was only in the case of (b) that the matter could be referred back to the Commission under s. 26 ( 4). The Vice-Chancellor's action in referring the matter for reconsideration by the.

Commission was without the authority of the Syndicate and was not warranted under s. 26 ( 4) : ( 4) that under a prior resoiution of the Syndicate dated November 13, 1952, a decision taken at the meeting could not be revised for a period of six months there from. Consequently, the decision taken by the Syndicate at its meeting on May 7, 1963 not to proceed with the appointment could not be revised by the Syndicate before the expiry of six months, and that therefore, the Syndicate's resolution of July 3, 1963 was invalid. (1971] l S.C.R. In the writ petition filed by respondent 1 against the impugned order of the Chancellor the High Court quashed the said order and issued a certiorari on the ground that the order in que;tion was passed on an erroneous interpretation of the relevant provisions of the Act and the University Statute.

Jn challenging the correctness and validity of the High Court'' order, counsel for the appellant contended before us that the High Court had no jurisdiction to issue the certiorari as the impugned order did not involve any question of either the assumption of excessiv·e jurisdiction or a refusal to exercise jurisdiction or any illegality in procedure or any breach of the principles of natural justice. The High Court, he argued, could not in exercise of its prerogative jurisdiction under Art. 226 interfere with or set aside the impugned order on the ground of a mistake even if such a mistake was one of law, that is to say, in the Chancellor's interpretation either of the University Statute or any of the provisions of the Act.

It is true that in a writ petition for certiorari a superior court would not interfere on the mere ground of an error of fact or even of Jaw, but if the error of Jaw is apparent on the record. or consists of a misconstruction of a law on which assumption of iurisdiction is made which otherwise does not exist, a certiorari can issue. The question, therefore, is : whether in the instant case that was the position ° The question, in other words. would be whether the Cha~cellor, on the four grounds on which he annulled the Syndicate's resolution, appropriated to himself the jurisdiction to interfere which he did not have under s. 9( 4) of the Act. l1nder s. 58 of the Act, until Statutes, Ordinances, Regulations and Rules were made under the Act. Regulations made under the Bihar State Universities Act, XIV of 1960, which were in force immediately before the commencement of the present Act. were to continue to be in force and were to be deemed to be Statutes.

Ordinances, Regulations and Rules made under· the corresponding provisions of this Act. Ch, XIT of the Statutes made under the~ earlier Act and which was in force immediate1v before the commencement of the Act, was. therefore, to continue in force and was deemed to have been made under the present Act. Under that Statute. the qualifications for the post of a University Professor were inter a/ia "a first or a second class Master's degree of an Indian University or an equivalent qualification of a foreign universitv". The Statute. it wi]] be noticed, did not Jay down that the ·Master's degree had to be "in the subject" for which the candidate would be appointed. Apparently, the question whether the concerned candidate was proficient in the subject for which he had applied for appointment was left for decision by the appointing authoritv. Under Ch. XIV of the Statute, whenever an 0 c. JHA v. V.• P. VERlll:A (She/at, J.)

5 9 :r appointment had to be made the Vice-Chancellor had the power with the approval of the Chancellor to decide whether the post . should be filled up by promotion or by direct recruitment. There is no dispute that the Vice-Chancellor had obtained such approval and the post was to be filled up by direct recruitment. As required by s. 26(1) of the Act, appointments of teachers and professors of the University could only be made on the recommend_ations made by the State Public Service Commission. Accordingly, the Vice-Chancellor sent to the Commission a requisition for advertisement for the post. In that requisition he set out, without any words of limitation or additional qualifications, Ch. XII of the Statut~s which laid down the qualifications. In the advertisement issued by the Commission, however, that body introduced the words "in the subject" announcing thereby that the candidate must possess a first or second class Master's degree in Political Science.

The insertion of those words of limitation clearly was not in comformity either with the requisition sent by the Vice-Chancellor or with Ch. XII of the Statutes and actually debarred candidates with first or second class Master's degrees in subjects other than Political Science. Such a restriction was not consistent with the Statute in Ch. XII laying down the qualifications. It was obviously to correct this error on the part of the Com mission that the Vice-Chancellor caused the revised advertisement to be issued by the Commission in which it was clarified that candidates not only with first or second class M. A. degrees in Political Science but those with such degrees in allied subjects such as History and Economics could also apply. The record shows that this fact was explained to the Chancellor by the Vice- Chancellor and the then Chancellor had at that time raised no objection.

As appears from the Vice-C:1ancellor's reply to the show cause notice issued by the Chancellor, this very interpretation of the Statute had been given in the past on a number of occasions and several appointments had been made without any objection from anybody. The revised advertisement was thus made to clarify the position that under the Statute laying down the qualifications for the post it was not as if an eligible candidate could be the one who held the M.A. degree in Political Science only. Since the post was for a professorship in Political Science, the revised advertisement stated that candidates with first or second class M.A. degree in Political Science as a]so in an allied subject could apply. In doing so the Vice-Chancellor did not purport to modify or alter the Statute refating to qua'lifications as was the view of the Chancelkr, but on the contrary, clarified the correct position and gave a correct interpretation to the Statute in question.

The Chancellor, therefore, could not, on a wroni 13Sup. Cl/70-9. SUPREME COURT REfORTS (l971] ! S.C.lt interpretation o.f the Statute, held that the revised advertisement was a modificatiop of that Statute, that it was, therefore, invalid. and that therefore, he had the jurisdiction to nullify the Syndicate's rcsolut!on.of July 3, 1963 under s. 9(4) of the Act. Sec. 9(4) a~thonses t~e Chancell?r t~ nullify th.~ Syndicate"s resolution pro· v1ded only 1f the Syndicates proceedings were not in conformitv with the Act or the Statute. Under s.

57 of the Act, which ideals with transitory provisions, the Vice-Chancellor had, for a period of six months from the date of the commencement of the i Act, the power to discharge all the function of the University for carrying out the purposes of the ~<'t and to exercise powers arid perform the duties of any oflicer or authority of the University. subject, of course, to the previous approval of the Chancellor I This provision was m~de to carry on the university and its fu~ctions till the other authorities such as the Senate, the Syndicate and the Academic Council were duly constituted under the new Act. The appointment of a University Professor in place of Dr. Muhar was obviously one of the functions of the University, ,vhich. subject to the Chan·· cellar's approval, had to be performed by the Vice-Chancellor.

Admittedly, the Vice-Chancellor had obtained such appr0val for filling up the vacancy by direct recru1tment and also for the advertisement in terms of the Statute laying down the qualifications for the post. Once, therefore, such an ·approval had been obtained. no further approval would be necessary for the various consequential steps which would have to be taken to bring about the appointment and fill in the vacancy. Furthermore, the revision in the advertisement became necessary because the advertisement given by the Commission was not in ,conformity with the University Statute and the requisition made by ;'the Vice-Chancellor for which he had already obtained the Chancellor's approval. In other words, he had the advertisement revised so as to bring it in accord with his requisition which was san¢tioned by the Chancellor. That could only be done by removing jhe limitation under which con· trary to the Statute only candidates with M.A. degrees in Political Science could apply.

The Chancellor, therefore, was in error in holding that the revised advertisement required his approval and that in the absence of such approval it was invalid or that the Commission's recommendation and the appointment by the Syndicate based thereon were bad in law on that account. The second ground on which the Chancellor nullified the appointment was, in our view, equally unsustainable. Under s. 26(2), the Commission had to have the assistance of two expert> in the subject for which an appointment was to he made. Cl. (iii) of that sub-section provides that such experts "shall be assoc. JHA v. v. P. VERMA (Shelat, /.) ciated" with the Commission, whose duty it shall be to give expert advice to the Commission but who shall have· no right to vote. The Chancellor, in our opinion, read more in this sub-section than what it contains or requires. The sub-section merely requires that the two experts shall be "associated" with the Commission before it made its recommendation.

It does not say that such association can only be by their presence at the time of the interviews. If that were so, it was· easy for the Legislature to provide that the expert or experts shall remain present at the time of the interviews. The benefit of expert advice can be had both by the experts remailling present at the time of the interviews and also by their advice communicated to the Commission by post or otherwise. There is nothing in cl. (iii) suggesting that only th~ first method was the one which was intended. On the contrary, the deliberate use of the word "associated" indicates that the Legislature thought that such advice could be made available by both the methods.

The Legislature appears to have left the method of obtaining such advice to the Commission for it is possible that by making their presence at the interviews compulsory, the Commission might in conceiveable cases lose the benefit of really competent experts residing at distant places, not to say -0f those outside the country. The denial of the right to vote to the experts has nothing to do with their having to be present or not. What is sought by the clause is that even if the experts happen to be present they cannot affect the decision of the Commission which is the exclusive decision of that body. The Chancellor clearly misinterpreted cl. (iii) of s .. 26(2) when he thought that the denial of the right to vote to the experts therein indicated that they were required to be present at the time of the interviews. Admittedly, the Commission, as required by cl. (iii), had the benefit of the advice of both the experts.

The experts were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite one of them not being present at the time of the interviews. The Chancellor was, therefore, in error wh~n he held that the recommendation ot the Commission was invalid, and therefore, the appointment based o nit was also invalid. Grounds 3 and 4 of the Chancellor involve a common question and may conveniently be dealt with together. It is true, as the Chancellor said, that on the recommendation made by the Commission the Syndicate could adopt any one of the three courses, viz., to accept it, or to decline to accept it and refer back the recommendation to the Commission for reconsideratioii,' or not !o. proce~ with making the appointment. . It is equ~lff trii~ that 1t is only Ill the e&se of the ~econd course that the m'atter'c011-ld ~e sent back for reconsi~eration up~er s.

26(4)t f6!i '~i<nisly m the case of the syndicate. ae¢eptmg~1be rei;Oifimend.atitm ·0r (1971] l S.C.R. refusing to proceed to make the appointment, the question of M:nding back the matter for reconsideration does not arise at all. T)1e point for Consideration,_ therefore, is : which particular course <lid the Syndicate adopt at the meeting of May 7, 1963 ? There is abundant material on record to show that on May 7, 1963 the Syndicate in fact decided not to accept the Commission's recommendation. But the minutes, as drafted and placed for confirmation before the meeting of July 3, 1963, were not only not in a;:cord with that decision but t1lrough mistake or inadvertence hJd recorded something quite different. This was found out when the minutes were placed before the meeting for confirmation. They were, therefore, corrected by scoring out the incorrect portion and sul;stituting it by words incorporating the decision that the Syndicate did not accept the Commission's recommendation.

As already stated, this position is borne out by the fact that though \here were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested t0 the alteration in the minutes nor did any one of them 3ay that the decision taken on Ma_y 7, 1963 was not one of refusal to accept the Commission's reco~endation. Therefore, if the Syndicate's decision was not to accept the Commission's recommendation it had to refer under s. 26( 4) the matt.er back to the Commission, the words of sub-s. ( 4) of s. 26 in that regard being mandatory. le seems that the Vice-Chancellor had also understood that the Syndicate's decision of May 7, 1963 was not to accept the Commission's recommendation and it was because he had so understood that he got the Registrar on Jun.e 11, 1963 to refer the matter back to the Commission.

The question then is whether the minutes, as drafted and placed before t!le meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future d.isputes as to what had taken place thereat. They are a record of the fact t'iat a meeting was held and of the decision taken thereat. Usually the · are written up after the termination of the meeting, ofter. lroin rough notes taken by the person who is to draft them and then are placed before the next meeting for what is generally known as "confirmation", though they are placed for verification and not for confirmation. Indeed, theire is no question of any confir•nation at the next meeting of a decision already taken, for, a dev ·.'.)n once taken does not require any confirn1ation.

Accordingly, when minutes of a meeting are placed before the next meeting the only .thing that can be done is to see whetheir the decision taken at the earlier meeting has been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting: Once a decision is duly t::Jcen it c. JHA v. V, P. VERMA (She/at, !.) can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minuted and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting. Jn the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so lllade is deemed to have been properly held and convtined and all proceedings had there to have been duly had and all appointments of directors, managers or liquidators are deemed to be valid unless the contrary is proved. (cf.

Halsbury's Laws of England. 3rd ed., vol. 6, p. 318). This is the position when minutes have been signed by the Chairman. After such signature they cannot be altered. But before the minutes are signed they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. [cf. Talbot, W.F., Company Meetngs, ( 1951 ed.). p. 82). This was precisely what was done at the meeting of Juty ? , 1963 and no objectiQn to the course adopted then by the Chairm~n and the Syndicate could be validly taktn particularly cs nrne present then had raised any protest against the alteration. The decision rc'ied on by Mr. Jha in In re Botherham Alum and Ch~mical Company(') is altogether on a different question and cannot be of any assistance.

Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commission's recommendation and since such refusal to accept meant under s. 26( 4) that the matter should be sent back to the Commission for recommendatic.rl, his action in asking the Commission to reconsider clearly fell under s. 26(4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to follow it Up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellor's observation that that action was unwarranted as it was without the Syndicate's sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under s. 26( 4) to refer back the matter to the Com- - mission.

The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Ch~ncellor that. ~he alteration in the minutes on July 3, 1963 constituted a revmon or a recission of the earlier decision or that such revision or recission could not be made 6efore the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view 11\ [1884] 25 Ch. D. p. !OJ. (1971 J I S.C.R. the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicate's meeting of. July 3, 1963 including the revjsion of the draft minutes were all in accordaace with the provisions of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under s. 9 ( 4) of the Act to annul the decision of the Syndicate or the proceedings of thi meeting of July 3, 1963.

In the result, the High Court was right in holding the ·annulling order of the Chancellor to be without jurisdiction as it was passed on a wrong assumption of jurisdiction.made on a misinterpretation of !he Act and the University Statute. The High Court accordingly was justified on that ground as also on the ground that there was an apparent error of law ort .the record to quash the impugned order of the Chancellor. The appeal, therefore, fails and is dismissed. Each party will bear his own costs. G.C. Appeal dismissed.