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

Patna High Court - Orders

Faiyaz 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, Patna800001
....
RESPONDENTS
---------

For the Petitioner : M/s B. P. Pandey, Sr. Advocate & Jagannath Singh, Advocate For the State : M/s
Lalit Kishore, Sr Advocate & Rabindra Kr. Priyadarshi, AC to AAG I For Vigilance : Arvind Kumar,
Spl. PP (Vigilance)
--------19 13 .4.2011 Heard learned counsel for the petitioner, learned counsel for the State and learned
counsel for the Vigilance Investigation Bureau.
2. Petitioner is Secretary of Millat Teachers Training College, Madhubani which is claimed to be a
minority unaided institution established in the year 1990. It claims to have recognition of the State
Government since the academic session 1990-92. It is understood that the petitioner claims to have
affiliation of its institution with Lalit Narayan Mithila University (hereinafter referred to as the
University) till 1995-96 and thereafter it got recognition of the National Council for Teacher
Education, Eastern Regional Committee since the session 1996-97 in the light of provisions of NCTE
Act, 1993 which came into force from 1.7.1995.
3. Petitioner claims that since it is unaided minority institution imparting training to teachers to
enable 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 the
Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act). This is the basis for
challenging a letter bearing no.7096 dated 6.7.2009 contained in Annexure- 4 series whereby
respondent no.3, Sr. Deputy Superintendent of Police- cum- Inquiry Officer, Vigilance Investigation
Bureau has requested the petitioner to make available information and documents mentioned in
letter no.6555 dated 3.6.2009 (Annexure-1) for holding inquiry pursuant to letter no.866 dated
27.5.2006 whereby respondent no.2, the Principal Secretary, Human Resources Development
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Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011

Department, Government of Bihar notified the Additional Director General of Police, Vigilance
Investigation Bureau, Bihar, Patna to hold inquiry in respect of privately managed B. Ed. training
colleges 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 order
passed on that date the learned single Judge noted all the submissions advanced on behalf of the
petitioner which are to the effect that petitioner does not perform any "public duty" as defined under
Section 2 (b) of the PC Act nor does it fall under the definition of "public servant" defined under
Section 2(c) of that Act and, therefore, the Vigilance Investigation Bureau will have no jurisdiction
to take up inquiry or investigation involving the petitioners institution. The other submission is that
the letter or notice under challenge can be issued only under Section 91 of the Code of Criminal
Procedure (hereinafter referred to as CrPC) and such power cannot be exercised till a regular case is
instituted by the police. The learned single Judge found the issues raised to be of significance and
hence, referred the matter to Division Bench for consideration.
5. The same issues of law were raised before us by learned senior counsel appearing for the
petitioner. He also raised a plea that now when the NCTE has found the petitioners institution to be
proper and has granted recognition, there can be no justification for subjecting it to an inquiry by
the Vigilance Investigation Bureau.
6. In the context of issues involved, it is relevant to refer to the material facts constituting the
background for the inquiry in question as they appear in the letter of the Additional Director
General of Police, Vigilance Investigation Bureau dated 24.3.2006 contained in Annexure- A to the
counter affidavit of respondent no.2. That letter is addressed to the Secretary Higher Education
Department, Government of Bihar (subsequently redesignated as Department of Human Resources
Development Department). The subject is inquiry in respect of colleges in the private sector
associated with B. Ed. / Dental and other vocational courses. The letter discloses that a team of
officials constituted by the Chancellor detected irregularities in respect of grant of affiliation and
publication of results for B. Ed. and other courses by the University. The details of the irregularities
and relevant papers were enclosed with letter dated 12.4.1999 issued by the Secretariat of Honble
Chancellor with a direction to the Vigilance Investigation Bureau to enquire into the matter. Similar
request for inquiry were received from the Secretariat of Honble Chancellor with respect to four
Dental colleges under the same University and Teachers training colleges under B. N. Mandal
University as well as Magadh University.
7. The said letter (Annexure- A) further discloses that Vigilance Investigation Bureau constituted a
team of officers and selected some colleges for inquiry as sample cases. The result of the inquiry
revealed cognizable offences leading to registration of regular cases against seven Teachers training
colleges and two Dental colleges under LN Mithila University and one Teachers training college
under Magadh University. The letter further discloses that modus operandi adopted by all the
institutions revealed almost same type of irregularities and wrong methods. In respect of some of
the remaining institutions/ colleges, inquiry was initiated but it could not reach any final conclusion
because the Vigilance Investigation Bureau got involved in other very important cases relating to
BPSC scam, Flood Relief scam, IGIMS scam etc. The Vigilance Investigation Bureau, vide AnnexureIndian Kanoon - http://indiankanoon.org/doc/257952/

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

A requested the Human Resources Development Department to constitute team of its own officers
for holding inquiry in respect of other colleges mentioned in the reports received from the
Secretariat of the Honble Governor. It was suggested that if in such inquiry cognizable offences were
detected then criminal cases may be instituted either with the local police or with the Vigilance
Investigation Bureau.
8. In the context of aforesaid letter of the Additional Director General of Police, Vigilance
Investigation Bureau, a reply was sent by the Commissioner- cum- Secretary of the Human
Resources Development Department through letter no.866 dated 27.5.2006 with a direction that
inquiry in respect of remaining B. Ed. training colleges should also be conducted by the Vigilance
Investigation Bureau. As mentioned in the counter affidavit of respondent no.2, the Vigilance
Investigation Bureau vide its letter no.365 dated 1.6.2006 accepted to complete the inquiry in
respect of rest 11 colleges and that has led to inquiry against petitioners institution and issuance of
the impugned letter/ notice.
9. On behalf of the respondents strong reliance was placed upon the facts emerging from Annexures
A and B to the counter affidavit of respondent no.2 for advancing the submission that the illegalities
or irregularities requiring inquiry relate to earlier period when the concerned University had
granted affiliations and published results of examination of B. Ed. courses and in relation to such
acts, a team of high officials constituted by the Chancellor of the Universities of Bihar had found
irregularities which led the Chancellor to issue directions for inquiry by the Vigilance Investigation
Bureau. On behalf of the respondents reliance was placed upon Section 9 (2) of the Bihar State
Universities 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 or
examinations conducted, or any act done by the university, and to get such inspection
done by such person or persons who may be directed by him and to inquire or to
cause an inquiry made, in like manner, in respect of any matter connected with the
University and it shall be the duty of the officers of the concerned University and
College to render necessary assistance in such inspection :
Provided that the Chancellor shall, in every case, inform the Vice Chancellor of his
intention to inspect or inquire or to get the inspection or inquiry conducted and the
University shall be entitled to representation therein.
10. In order to avoid the effect of aforesaid statutory provision under which the Chancellor has
powers to get inquiry made in respect of any matter connected with the University and
corresponding 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 State
Universities Act. That distinction is found to be of no substance because Section 9 (2) mentions "any
College" 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
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Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011

statutory provisions noticed above. This view is supported by a Division Bench judgment of this
Court in the case of Md. Salahuddin Sarwar v. State of Bihar, 2000 (1) PLJR 64. In that case also the
petitioner represented a private unaided college and identical issues relating to authority of the
Chancellor to direct such inquiry and the power of the Vigilance Department to hold the inquiry was
under challenge. The Division Bench upheld the authority of the Chancellor as well as power of the
Vigilance Department and also the views of the learned single Judge that genuineness and otherwise
of the claims of the petitioner college was not required to be gone into at
- 10 a stage where the Vigilance Department was only conducting an inquiry and no case had been
instituted. The Division Bench also placed reliance upon judgment of the Supreme Court in the case
of R. P. Kapur and others v. Sardar Pratap Singh Kairon and others, AIR 1961 SC 1117, to highlight
that Section 154 of the CrPC does not lay down that information of a cognizable offence can only be
given to officer incharge of the police station. It is not in dispute that Vigilance Investigation Bureau
is a police station whose jurisdiction extends over the whole State. The aforesaid Division Bench
judgment is a complete answer to the contentions raised on behalf of the petitioner. The Vigilance
Department of the State Government cannot be faulted for respecting the statutory powers of the
Chancellor and the inquiry being conducted by Vigilance Investigation Bureau has the sanctity of
law 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
- 11 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 the
Bihar 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 the
Chancellor had no power to ask the Vigilance Department to enquire into the matter
of grant of affiliation/ recognition to the College. ........"
12. Learned counsel for the respondents advanced a further submission that only because the
petitioner is an unaided educational institution it cannot be said that it is not performing a public
duty. In support of this proposition reliance was placed upon a judgment of the Supreme Court in
the case of Unni Krishnan v. State of A.P., (1993) 1 SCC 645. That case related also to running of
private unaided educational institutions and conducting professional courses and in paragraph 79 it
was held that these educational institutions discharge public duty irrespective of the fact whether
they are receiving aid or not.
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Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011

13. In reply, learned counsel for the petitioner placed reliance upon judgment of the Supreme Court
in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9
SCC 1, for supporting a submission that after coming into force of the NCTE Act, 1993, the control
over institutions recognized by the NCTE vests only in the latter and the State Government has no
power to take any decision in respect of an institution recognized by the NCTE. This proposition has
no relevance in the present case because the inquiry ordered by the Chancellor and the State
Government relate to an earlier period when the concerned University had allegedly committed
irregularities / illegalities in granting affiliation to and/or conducting examination for the concerned
institutions.
14. The issue relating to applicability of provisions of the PC Act to the petitioners institution is
found to be entirely misconceived. The inquiry is primarily against the irregular or illegal acts of the
University. The colleges or the institutions that might have or are suspected to have abetted
omission of
- 13 offences by officials of the University will definitely be covered by the provisions of the PC Act even
if such colleges are themselves not covered by the definition of "public servant" under Section 2(c) of
the PC Act.
15. As a result of aforesaid discussions, it is found that the inquiry being conducted by the Vigilance
Investigation Bureau does not contravene any provision of the PC Act or CrPC and is mandated by
Section 9 (2) of the Bihar State Universities Act. It is further found that subsequent recognition by
the NCTE is of no consequence so far as the present inquiry is concerned because the same relates to
an earlier period. It is made clear that we have not gone into the merits of petitioners claim of
innocence 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 Vigilance
Investigation Bureau was raised in an earlier writ petition filed by private Teachers training college
association bearing CWJC No.7159 of 2006 and the said writ petition was dismissed by this Court on
21.9.2006 as per averment in
- 14 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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