IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10886 of 2007 SMT.RITA SINGH,W/O SRI B.N. SINGH PRESENTLY WORKING AS LECTURER IN THE DEPARTMENT OF HOME SCIENCE IN S.N.S.R.K.S COLLEGE, SAHARSA RESIDING AT GAUTAM NAGAR, GANGJALA, WARD NO. 11, P.O. & P.S DISTRICT SAHARSA. PETITIONER. VERSUS 1.B.N.MANDAL UNIVERSITY THROUGH ITS VICE CHANCELLOR, LALOO NAGAR, MADHEPURA AT AND P.O. MADHEPURA, DISTRICT MADHEPURA. 2.VICE CHANCELLOR, B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA AT AND P.O. MADHEPURA, DISTRICT MADHEPURA. 3.REGISTRAR, B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA AT AND P.O. MADHEPURA, DISTRICT MADHEPURA. RESPONDENTS. Appearance : For the Petitioner: Mr. [ENTITY], Sr. Adv.Mr. [ENTITY] For the Respondent: Mr. [ENTITY] For the B.N Mandal University:Mr. [ENTITY] CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER Date: 25-10-2011 Heard Mr. [ENTITY], learned senior counsel for the petitioner, learned counsel for the State and learned counsel for the University. The prayer of the petitioner in this writ application reads as follows:- "That in this writ petition the petitioner challenges & disputes the legality and validity of the decision taken by a committee of redressal of grievances communicated by the Registrar vide his letter No. G/S (320/07)-728 dt. 18.5.2007
whereby the representation filed by the petitioner for correction of apparent error and factual mistake contained in the report of Hon'ble Mr. Justice [ENTITY] (Retd) Commission, matters pertaining to absorption of Patna High Court [CASE NUMBER] dt.25-10-2011 services of teachers and non teaching staff of 4th phase constituent College in this State and accordingly prays for quashing of the same with an appropriate direction to the University respondents to reconsider the grievance of the petitioner and remove the apparent Error crept in the report of Hon'ble Justice [ENTITY]'s report as directed by the Hon'ble Supreme Court of India in it's Judgment dt. 12.10.2004 passed in [CASE NUMBER] reported in [CASE NUMBER] and for grant of such reliefs to petitioner for which she be found entitled in law."
Mr. [ENTITY] in respect of the aforesaid prayer would highlight that though the petitioner was Post Graduate in the subject of Philosophy at the time of her initial appointment on post of Lecturer in Home Science on 15.11.1984 S.N.S.R.K.S. College, an affiliated College of B.N. Mandal University, which later on became a constituent college in the fourth phase, but as the petitioner had subsequently acquired prescribed qualification on 14.9.1991 for the post of Lecturer in Home Science, her date of appointment as Lecturer in the College for all purposes would still be the first date of 15.11.1984 on which she was appointed as Lecturer in Home Science with her qualification of post graduate in Philosophy. Based on the aforementioned premises, Mr. [ENTITY] is of the view that the petitioner's seniority as a Patna High Court [CASE NUMBER] dt.25-10-2011 Lecturer in the College should have been reckoned from 15.11.1984 and not 14.09.1991 and to that extent the recommendation of Justice [ENTITY] as accepted and implemented by the University is bad on fact and in law.
Learned counsel for the University on the other hand would submit that the issue now stands settled in view of the decision taken by Justice [ENTITY] which was constituted by the Apex Court in relation to absorption of the teaching and non-teaching employees of all the fourth phase constituent Colleges including the case of the petitioner. He has in this regard explained that from the said report of Justice [ENTITY] relating to the College of the petitioner, it would be found that Justice [ENTITY] had found the petitioner eligible for absorption only w.e.f 14.09.1991, the date on which she had acquired the qualification for the post of Lecturer in Home Science. He would, accordingly, submit that the seniority of the petitioner and all other consequential benefits in the College on account of absorption of her service could be counted only from 14.09.1991.
Mr. [ENTITY] in reply would submit Patna High Court [CASE NUMBER] dt.25-10-2011 that the recommendation of Justice [ENTITY] is still in fluid stage, inasmuch as, an ancillary issue is still pending before the Apex Court.
In the considered opinion of this Court, the petitioner's right for absorption in the College in question which was made constituent in the year 1986 would depend squarely on the qualification that she had possessed at the time of her initial appointment. The petitioner claims that she was appointed as a Lecturer in the department of Home Science in S.N.S.R.K.S College, Saharsa an affiliated College on 15.11.1984. On 15.11.1984, the petitioner was only a Post Graduate in Philosophy, her appointment on the post of Lecturer in Home Science was not permissible in view of the statutes framed by the Chancellor laying down the qualification for the post of Lecturer in Home Science, which reads as follows:-
"(ii) Lecturer in Home Science:
At least a second class Master's degree in Home Science or an M.B.B.S. degree or a Master Degree in an allied subject plus (1) a degree or diploma in Home Science or a recognized or (2) Bachelor's degree with Home Science or Domestic Science as an optional subject, with two years teaching experience in a college."
Admittedly, the petitioner was not a Post Patna High Court [CASE NUMBER] dt.25-10-2011 Graduate in Home Science on the date of her appointment i.e. 15.11.1984 nor she was Bachelor in Medicine or Bachelor in Surgery (M.B.B.S) and therefore, she had to fulfill the third optional qualification namely Bachelor's degree with Home Science or Domestic Science as an optional subject with two years teaching experience in a College. Assuming that the subject of Philosophy is an allied subject (which of course it is not), the petitioner even thereafter was required to be possessing two years teaching experience with Home Science as a subject at her graduation level. Admittedly, the petitioner did not possess such qualification on 15.11.1984 and therefore there was no difficulty for the University or Justice [ENTITY] to straightway reject the case of the petitioner for absorption but keeping in view the larger terms and the reference by the Apex Court, Justice [ENTITY] had evolved a principle in which a mechanism was evolved that maximum number of teachers working could be absorbed in service provided that they had the requisite prescribed qualification and were working on a sanctioned post or the recommended post on or before 30.4.1986. The Justice [ENTITY] in Patna High Court [CASE NUMBER] dt.25-10-2011 this regard had also evolved yet another principle to find out the fulfilment of qualification on the date of appointment and if a teacher did not possess the requisite prescribed qualification on the date of initial appointment but had later on acquired such qualification, the commission did not altogether reject such case but had only pushed the date of appointment of such person to a date on which he or she became eligible after acquiring the prescribed qualification. In the case of the petitioner itself the Commission had made a detailed consideration while recording the following findings:-
"Smt. [ENTITY] was appointed as Lecturer in Home Science by order dated November 15,1984. On the date of appointment, she did not have a good academic record inasmuch as she had not obtained second-class in graduation as required under the 1983 statutes, which were applicable. She was having M.A Degree in Philosophy at the time of appointment. She obtained M.A degree in Home Science with 66.7% marks on September, 14, 1991. She became eligible for consideration on September 14, 1991."
It has to be noted that similar consideration was made by Justice [ENTITY] in the case of a large number of
teachers of the same College as would be evident from the consideration given in the case of Sri Patna High Court [CASE NUMBER] dt.25-10-2011 [ENTITY], Sri [ENTITY], Sri [ENTITY], Smt. [ENTITY], Sri [ENTITY], Sri [ENTITY] and Sri [ENTITY]. All these persons were therefore, given their date of absorption on the date they became eligible after having acquired the prescribed qualification. If the Commission therefore, had maintained same parameter which is also absolutely in consonance with the spirit of the qualification laid down under the statute, it would be difficult for this Court to issue a writ of mandamus directing the Authorities to date back the appointment of the petitioner from 14.09.1991 to 15.11.1984.
The submission of Mr. [ENTITY], learned counsel for the petitioner that in some cases the Commission had made a departure from its principle would hardly be a justification for allowing the case of the petitioner especially when it has been found that the date of effective appointment of a large number of teachers including the persons named above even in the College of the petitioner were shifted for the purpose of absorption and they were pushed to the date of their entitlement on which they became qualified for the post of lecturer. Patna High Court [CASE NUMBER] dt.25-10-2011 As a matter of fact, if the services of the petitioner could be retained by evolving that principle as has been done by accepting the report of the Justice [ENTITY] by which the Apex Court in its Judgment in the case of [PRECEDENT], this Court would not now allow the matter once again to be raised to unsettle the whole issue. In any event, [SECTION] cannot be allowed to be enforced in negative manner and merely because in some cases anyone had been allegedly given illegal benefit that would not make the petitioner also entitle to seek a direction from this Court for committing the same mistake. Reference in this connection may be made to the judgment of the Apex court in the case of The [PRECEDENT].
Additionally, this Court would find that the principle followed by the Commission and in fact also considered by the Apex Court of allowing the person seniority and the benefit of service from the date, one became eligible gets support from the law laid down by the Apex Court in the case of [PRECEDENT] [CASE NUMBER] dt.25-10-2011 others reported in [PRECEDENT], wherein, it was held that if the person on the date of appointment did not possess the requisite qualification/experience but had acquired it during the continuation of service, his date of appointment can be pushed to the date on which he became eligible.
Judging thus from this angle as well as this Court would find that the petitioner would be entitled for all the benefits of her service only w.e.f. the date she became eligible for the post of Lecturer in Home Science, i.e. the date on which she had passed M.A examination in Home Science being 14.09.1991.
In that view of the matter, this Court does not find any merit in the application and the same is, accordingly, dismissed.
([ENTITY], J) Patna High Court Dated the 25th of October, 2011 A.F.R./Ranjan