‘Can’t be both’: Bihar Raj Bhavan flags dual jobs of minister Ashok Choudhary

Bihar Food and Consumer Protection Minister Ashok Choudhary may have to make a choice between retaining his Legislative Council seat or his post of assistant professor, after a Raj Bhavan note flagged his probationary leave as illegal and warned that holding the teaching post attracts disqualification under office-of-profit rules.

Choudhary, who joined A N College under Patliputra University as an assistant professor of political science on February 17 this year, went on leave the very next day to continue his duties as a legislator and minister.

The Raj Bhavan’s detailed note followed a meeting of the university Syndicate on August 19, after which its Vice-Chancellor referred the matter to the Secretariat of Governor Lt Gen Syed Ata Hasnain (retd) for guidance in the absence of clear rules. At issue were two questions: whether Choudhary, a senior JD(U) leader, was entitled to a lien — the legal right of a permanent employee to hold a substantive post while serving elsewhere — and whether the assistant professor post constitutes an office of profit even if he draws no salary from the university.

In a detailed note on October 31, Deepak Kumar Singh, Additional Chief Secretary to Governor Hasnain, who is also the Chancellor by virtue of his post, wrote: “Dr Ashok Kumar is clearly not entitled to lien as it is not available to a person ‘on probation’. The note has examined this from the perspective of Bihar State Universities Act, Statutes as well as Bihar Service code. Hence, any question of ‘lien’ does not arise. Regarding Section 68(2) of the BSU Act, which gives a special privilege to university teachers and employees of ‘special leave’, if they are elected to state/ central legislature, it is pertinent to note that it applies one way only, that is when a university teacher/ employee (again meaning only permanent teacher/ employee and not a teacher/ employee on probation), while in service of the University, gets elected to Central / State Legislature, but not vice-versa.”

Singh, who joined as Additional Chief Secretary to the Governor in May this year, was transferred on November 4 — four days after he wrote the note — and is currently posted as Chief Adviser to the Bihar State Planning Board. While Singh refused to comment on the matter, sources said he stood by the note.

The Raj Bhavan has sought the opinion of the Advocate General on the matter.

Choudhary said Singh’s note “looks motivated”. Speaking to The Indian Express, he said: “I can cite at least two recent examples – one from Magadh University, Gaya, and another from B R Ambedkar University, Muzaffarpur, in which a lien has been granted during the probation period. The same rule applies to me, both in terms of granting lien and matters of office of profit.”

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The MLC added: “The attempt to portray my appointment as assistant professor as incompatible with my membership of the Bihar Legislative Council overlooks the legislative intent underlying Section 68(2) of the Bihar State Universities Act, 1976. The provision expressly recognises the coexistence of university service and legislative membership by providing for a university employee to be deemed to be on special leave for the entire legislative term, with protection of increments, promotion, seniority and the right to resume service. The expression ‘deemed’ carries a definite statutory consequence; it cannot be reduced to a matter of administrative discretion or made dependent upon a separate leave-sanctioning order.”

Patliputra University Vice-Chancellor Upendra Prasad Singh said: “I have not yet heard from Raj Bhavan and can’t comment on the matter.”

Underlining that Choudhary could not have joined as assistant professor while already serving as a legislator, Singh’s note said: “It (the university statutes and other rules) does not cover the case where a sitting MP/ MLA/ MLC gets elected as assistant professor/ employee of the University. In fact, in this particular case, the joining itself does not seem permissible….”

Addressing the office-of-profit question, the note stated: “It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/ draw such emoluments. What is relevant is whether pecuniary gain is ‘receivable’ in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.”

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The Raj Bhavan note added that, hence, the post of assistant professor qualifies as an office of profit even if Choudhary draws no salary, adding that the Bihar Legislature Act also does not exempt this post under “office of profit classification”. “… If Dr Ashok Kumar joins the post, which he has joined, he stands disqualified from the post of MLC. However the question of his qualification or disqualification is for the Hon’ble Chairman, Bihar Legislative Council, to decide”.

Choudhary said: “There are legislators in Bihar who hold academic positions, including those of assistant professors and professors… The law must be applied fairly, uniformly and in accordance with its true legislative intent, without creating disqualifications by implication.”