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PETITIONER: SUPREME COURT REPORTS [1962] SUPP.DR. RAI SHIVENDRA BAHADUR

       Vs.

RESPONDENT: THE GOVERNING BODY OF THE NALANDA COLLEGE

DATE OF JUDGMENT: 15/12/1961

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P.(CJ) HIDAYATULLAH, M. SHAH, J.C. MUDHOLKAR, J.R.

CITATION:  1962 AIR 1210            1962 SCR  Supl. (2) 144  CITATOR INFO :  R          1973 SC 964  (10)  R          1973 SC2216  (9)  F          1977 SC2149  (15)

ACT:      Writ of  Mandamus-Nalanda College  affiliated to Bihar University-Appointment of Principal-Legal right,  if   any  with   regard  to   question  of appointment-If and  when writ can issue University of Bihar  Act 1951  (Bihar 27 of 1951), University Statute XVI-Constitution of India, Art, 226.

HEADNOTE:      The appellant  was appointed as the Principal of  Nalanda   College  affiliated   to  the  Bihar University in  1958. As required by the University Statute  XVI   this  fact  was  intimated  to  the University, but  the appointment  was not approved by the  Syndicate as  required by  Art. 5,  of the University Statute,  In 1960  a new governing body resolved to  appoint a  new principal  and decided that in the meantime 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 its Chairman to  make a  final selection. The validity of the  selection of  the Principal was challenged by  the   appellant  under   Art.   226   of   the Constitution by  asking a  write  of  mandamus  to issue. ^      Held, that  in order  that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved  party had  a legal  right under the statute to enforce its performance.      In the  instant case  it has  not been  shown that there  was any  right in  the appellant which can be enforced by a writ of mandamus.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 403 of 1961.      Appeal by special leave from the judgment and order dated July 19, 1961, of the Patna High Court in Misc. Judicial Case No. 404 of 1961.      Basudeva  Prasad  and  Naunit  Lal,  for  the Appellant.      N. C. Chatterjee, D. P. Singh, R. K. Garg, S. C.  Agarwala   and  M.   K.  Ramamurthy,  for  the respondents. 145      1961. December  15. The Judgment of the Court was delivered by      KAPUR, J.-This  is an appeal by special leave against the  judgment and  order of the High Court of Patna dismissing the appellant’s petition under Art. 226  of the Constitution. The respondents are the 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 Government servant was appointed its Principal but the Government  withdrew him  on February 4, 1958. It is  alleged that at an extraordinary meeting of the Governing Body of the College held on February 23, 1958 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  constitution of  the  Governing  Body  and respondent  No.   2  became   its  Chairman.   The Governing Body  reconsidered  the  proceedings  of February 23,  1958 and at a meeting on January 31, 1960, the Governing Body resolved to appoint a new Principal. In  the meanwhile  it decided  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 146 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 authorising  the  Chairman  to  make  a selection from amongst the candidates who had been

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interviewed, and  who included  the appellant.  In accordance with  this  resolution  the  President, respondent No.  2, appointed  respondent No.  4 as 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  challenging the validity of  the   appointment  of   respondent  No.  4  as Principal  on  the  ground  that  the  appellant’s appointment was  never terminated and if there was any resolution by which resolution of February 23, 1958 was rescinded or cancelled, it was illegal as it was not included in the agenda to be transacted and was  void because of certain provisions in the University Statute  framed under the University of Bihar Act,  1951 (Act  27 of  1951), which had the force of  law; that  the appointment  of  the  New Principal was  invalid because the appointment had to be made 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.      These  allegations   were   denied   by   the respondents. They  pleaded that  the resolution of February 23, 1958 was not valid because it did not consider the case of other teachers for promotion; 147 that the  appointment of  the appellant  was never 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 resolutions were  passed by the new Governing Body and having  offered himself  for interview  before the  Governing   Body  could   not  challenge  the 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 (1)  his own appointment was not valid 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 University 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.,

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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 legal right under the Statutes to enforce 148 its   performance.    It   is,   however,   wholly unnecessary 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 assuming that the contention of the appellant is right that the College is a public body and it has to perform a public  duty in  the appointment of a Principal, it has  not been  shown that there is any right in the appellant  which can  be enforced by mandamus. According to  the  Statutes  all  appointments  of teachers  and   staff  have  to  be  made  by  the Governing Body  and no  person can  be  appointed, removed 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 that right he cannot come to  Court and  ask for a writ to issue. It is therefore not  necessary  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 dismissed. 149