Faiyaz Ahmad vs State of Bihar &Amp; Ors on 13 April, 2011

Patna High Court - OrdersFaiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.636 of 2009

Faiyaz Ahmad, s/o Kamruzama, Secretary, Millat Teachers Training College, Madhubani ..... PETITIONER VERSUS 1. The State of Bihar through the Additional Director General of Police, Vigilance Investigation Bureau, 6, Circular Road, Patna- 800001 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna 3. Sri Mritunjay Kumar Choudhary, Sr. Deputy Superintendent of Police- cum- Inquiry Officer, Vigilance Investigation Bureau, 6, Circular Road, Patna- 800001 .... RESPONDENTS ---------

For the Petitioner : M/s B. P. Pandey, Sr. Advocate & Jagannath Singh, Advocate For the State : M/sLalit Kishore, Sr Advocate & Rabindra Kr. Priyadarshi, AC to AAG I For Vigilance : Arvind Kumar,Spl. PP (Vigilance)

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19 13 .4.2011 Heard learned counsel for the petitioner, learned counsel for the State and learnedcounsel for the Vigilance Investigation Bureau.

2. Petitioner is Secretary of Millat Teachers Training College, Madhubani which is claimed to be aminority unaided institution established in the year 1990. It claims to have recognition of the StateGovernment since the academic session 1990-92. It is understood that the petitioner claims to haveaffiliation of its institution with Lalit Narayan Mithila University (hereinafter referred to as theUniversity) till 1995-96 and thereafter it got recognition of the National Council for TeacherEducation, Eastern Regional Committee since the session 1996-97 in the light of provisions of NCTEAct, 1993 which came into force from 1.7.1995.

3. Petitioner claims that since it is unaided minority institution imparting training to teachers toenable them to appear in the examination for B. Ed. degree, it does not perform any "public duty"and does not come within the definition of "public servant" as defined under Section 2 of thePrevention of Corruption Act, 1988 (hereinafter referred to as the PC Act). This is the basis forchallenging a letter bearing no.7096 dated 6.7.2009 contained in Annexure- 4 series wherebyrespondent no.3, Sr. Deputy Superintendent of Police- cum- Inquiry Officer, Vigilance InvestigationBureau has requested the petitioner to make available information and documents mentioned inletter no.6555 dated 3.6.2009 (Annexure-1) for holding inquiry pursuant to letter no.866 dated27.5.2006 whereby respondent no.2, the Principal Secretary, Human Resources Development

Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011

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Department, Government of Bihar notified the Additional Director General of Police, VigilanceInvestigation Bureau, Bihar, Patna to hold inquiry in respect of privately managed B. Ed. trainingcolleges in reply to and context of letter no.140 of respondent no.2 dated 20.3.2006 (Annexure- A).

4. Earlier this writ petition was considered by a learned single Judge on 6.10.2010. In the orderpassed on that date the learned single Judge noted all the submissions advanced on behalf of thepetitioner which are to the effect that petitioner does not perform any "public duty" as defined underSection 2 (b) of the PC Act nor does it fall under the definition of "public servant" defined underSection 2(c) of that Act and, therefore, the Vigilance Investigation Bureau will have no jurisdictionto take up inquiry or investigation involving the petitioners institution. The other submission is thatthe letter or notice under challenge can be issued only under Section 91 of the Code of CriminalProcedure (hereinafter referred to as CrPC) and such power cannot be exercised till a regular case isinstituted by the police. The learned single Judge found the issues raised to be of significance andhence, referred the matter to Division Bench for consideration.

5. The same issues of law were raised before us by learned senior counsel appearing for thepetitioner. He also raised a plea that now when the NCTE has found the petitioners institution to beproper and has granted recognition, there can be no justification for subjecting it to an inquiry bythe Vigilance Investigation Bureau.

6. In the context of issues involved, it is relevant to refer to the material facts constituting thebackground for the inquiry in question as they appear in the letter of the Additional DirectorGeneral of Police, Vigilance Investigation Bureau dated 24.3.2006 contained in Annexure- A to thecounter affidavit of respondent no.2. That letter is addressed to the Secretary Higher EducationDepartment, Government of Bihar (subsequently redesignated as Department of Human ResourcesDevelopment Department). The subject is inquiry in respect of colleges in the private sectorassociated with B. Ed. / Dental and other vocational courses. The letter discloses that a team ofofficials constituted by the Chancellor detected irregularities in respect of grant of affiliation andpublication of results for B. Ed. and other courses by the University. The details of the irregularitiesand relevant papers were enclosed with letter dated 12.4.1999 issued by the Secretariat of HonbleChancellor with a direction to the Vigilance Investigation Bureau to enquire into the matter. Similarrequest for inquiry were received from the Secretariat of Honble Chancellor with respect to fourDental colleges under the same University and Teachers training colleges under B. N. MandalUniversity as well as Magadh University.

7. The said letter (Annexure- A) further discloses that Vigilance Investigation Bureau constituted ateam of officers and selected some colleges for inquiry as sample cases. The result of the inquiryrevealed cognizable offences leading to registration of regular cases against seven Teachers trainingcolleges and two Dental colleges under LN Mithila University and one Teachers training collegeunder Magadh University. The letter further discloses that modus operandi adopted by all theinstitutions revealed almost same type of irregularities and wrong methods. In respect of some ofthe remaining institutions/ colleges, inquiry was initiated but it could not reach any final conclusionbecause the Vigilance Investigation Bureau got involved in other very important cases relating toBPSC scam, Flood Relief scam, IGIMS scam etc. The Vigilance Investigation Bureau, vide Annexure-



A requested the Human Resources Development Department to constitute team of its own officersfor holding inquiry in respect of other colleges mentioned in the reports received from theSecretariat of the Honble Governor. It was suggested that if in such inquiry cognizable offences weredetected then criminal cases may be instituted either with the local police or with the VigilanceInvestigation Bureau.

8. In the context of aforesaid letter of the Additional Director General of Police, VigilanceInvestigation Bureau, a reply was sent by the Commissioner- cum- Secretary of the HumanResources Development Department through letter no.866 dated 27.5.2006 with a direction thatinquiry in respect of remaining B. Ed. training colleges should also be conducted by the VigilanceInvestigation Bureau. As mentioned in the counter affidavit of respondent no.2, the VigilanceInvestigation Bureau vide its letter no.365 dated 1.6.2006 accepted to complete the inquiry inrespect of rest 11 colleges and that has led to inquiry against petitioners institution and issuance ofthe impugned letter/ notice.

9. On behalf of the respondents strong reliance was placed upon the facts emerging from AnnexuresA and B to the counter affidavit of respondent no.2 for advancing the submission that the illegalitiesor irregularities requiring inquiry relate to earlier period when the concerned University hadgranted affiliations and published results of examination of B. Ed. courses and in relation to suchacts, a team of high officials constituted by the Chancellor of the Universities of Bihar had foundirregularities which led the Chancellor to issue directions for inquiry by the Vigilance InvestigationBureau. On behalf of the respondents reliance was placed upon Section 9 (2) of the Bihar StateUniversities Act, 1976 which reads as follows :

" 9.(2) The Chancellor shall have the powers to inspect the university, its buildings,laboratories, workshops and equipment, any College or hostel, the teaching orexaminations conducted, or any act done by the university, and to get such inspectiondone by such person or persons who may be directed by him and to inquire or tocause an inquiry made, in like manner, in respect of any matter connected with theUniversity and it shall be the duty of the officers of the concerned University andCollege to render necessary assistance in such inspection :

Provided that the Chancellor shall, in every case, inform the Vice Chancellor of hisintention to inspect or inquire or to get the inspection or inquiry conducted and theUniversity shall be entitled to representation therein.

10. In order to avoid the effect of aforesaid statutory provision under which the Chancellor haspowers to get inquiry made in respect of any matter connected with the University andcorresponding duty of the officers of the University and the College to render necessary assistance,learned counsel for the petitioner attempted to make a distinction between "affiliated college" and"constituent college" which are separately defined under Section 2(c) and 2 (i) of the Bihar StateUniversities Act. That distinction is found to be of no substance because Section 9 (2) mentions "anyCollege" without making any distinction between affiliated college and constituent college. Hence,the inquiry in the instant case by the Vigilance Investigation Bureau is clearly permitted under the



statutory provisions noticed above. This view is supported by a Division Bench judgment of thisCourt in the case of Md. Salahuddin Sarwar v. State of Bihar, 2000 (1) PLJR 64. In that case also thepetitioner represented a private unaided college and identical issues relating to authority of theChancellor to direct such inquiry and the power of the Vigilance Department to hold the inquiry wasunder challenge. The Division Bench upheld the authority of the Chancellor as well as power of theVigilance Department and also the views of the learned single Judge that genuineness and otherwiseof the claims of the petitioner college was not required to be gone into at

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a stage where the Vigilance Department was only conducting an inquiry and no case had beeninstituted. The Division Bench also placed reliance upon judgment of the Supreme Court in the caseof R. P. Kapur and others v. Sardar Pratap Singh Kairon and others, AIR 1961 SC 1117, to highlightthat Section 154 of the CrPC does not lay down that information of a cognizable offence can only begiven to officer incharge of the police station. It is not in dispute that Vigilance Investigation Bureauis a police station whose jurisdiction extends over the whole State. The aforesaid Division Benchjudgment is a complete answer to the contentions raised on behalf of the petitioner. The VigilanceDepartment of the State Government cannot be faulted for respecting the statutory powers of theChancellor and the inquiry being conducted by Vigilance Investigation Bureau has the sanctity oflaw and as an affiliated college or a college for which examination was conducted by the University,the petitioners institution is required to render all assistance in such inquiry.

11. A similar view was taken by another

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Division Bench of this Court in the case of Satish Kumar v. V.C., Bhupendra Nr. Mandal University,2007 (2) PLJR 682. In paragraph 11 of that judgment reference was made to Section 9 (2) of theBihar State Universities Act and after quoting the same it was held as follows :

" ...... In view of the express provision in the Act, it is futile to suggest that theChancellor had no power to ask the Vigilance Department to enquire into the matterof grant of affiliation/ recognition to the College. ........"

12. Learned counsel for the respondents advanced a further submission that only because thepetitioner is an unaided educational institution it cannot be said that it is not performing a publicduty. In support of this proposition reliance was placed upon a judgment of the Supreme Court inthe case of Unni Krishnan v. State of A.P., (1993) 1 SCC 645. That case related also to running ofprivate unaided educational institutions and conducting professional courses and in paragraph 79 itwas held that these educational institutions discharge public duty irrespective of the fact whetherthey are receiving aid or not.

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13. In reply, learned counsel for the petitioner placed reliance upon judgment of the Supreme Courtin the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9SCC 1, for supporting a submission that after coming into force of the NCTE Act, 1993, the controlover institutions recognized by the NCTE vests only in the latter and the State Government has nopower to take any decision in respect of an institution recognized by the NCTE. This proposition hasno relevance in the present case because the inquiry ordered by the Chancellor and the StateGovernment relate to an earlier period when the concerned University had allegedly committedirregularities / illegalities in granting affiliation to and/or conducting examination for the concernedinstitutions.

14. The issue relating to applicability of provisions of the PC Act to the petitioners institution isfound to be entirely misconceived. The inquiry is primarily against the irregular or illegal acts of theUniversity. The colleges or the institutions that might have or are suspected to have abettedomission of

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offences by officials of the University will definitely be covered by the provisions of the PC Act evenif such colleges are themselves not covered by the definition of "public servant" under Section 2(c) ofthe PC Act.

15. As a result of aforesaid discussions, it is found that the inquiry being conducted by the VigilanceInvestigation Bureau does not contravene any provision of the PC Act or CrPC and is mandated bySection 9 (2) of the Bihar State Universities Act. It is further found that subsequent recognition bythe NCTE is of no consequence so far as the present inquiry is concerned because the same relates toan earlier period. It is made clear that we have not gone into the merits of petitioners claim ofinnocence because it is not an appropriate stage for embarking upon such an inquiry by this Court.It may be relevant to mention here that a similar objection with regard to inquiry by the VigilanceInvestigation Bureau was raised in an earlier writ petition filed by private Teachers training collegeassociation bearing CWJC No.7159 of 2006 and the said writ petition was dismissed by this Court on21.9.2006 as per averment in

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paragraph 7 of the counter affidavit filed by respondent no.1 which has not been disputed.

16. In the final analysis, we find no merit in this writ petition. It is accordingly dismissed.

(Shiva Kirti Singh, J.) I agree (Gopal Prasad, J.) AFR sk




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Faiyaz Ahmad vs State of Bihar &Amp; Ors on 13 April, 2011