IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8957 of 2007 Kameshwar Chaudhary, son of late Shiv Prasad Chaudhary, resident of village Baraita, P.S. Phalka, District Katihar … Petitioner Versus 1. The State Of Bihar through the Secretary, Human Resources Development Department, Bihar, Patna 2. The Secretary, Human Resources Development Department, Govt. of Bihar, New Secretariat, Patna 3. The Director, Higher Education, Govt. of Bihar, New Secretariat, Patna 4. The Tilka Manjhi Bhagalpur University Bhagalpur through its Vice Chancellor 5. The Vice Chancellor, Tilka Manjhi Bhagalpur University, District Bhagalpur 6. The Registrar, Tilka Manjhi Bhagalpur University, District Bhagalpur 7. The Deputy Registrar, Tilka Manjhi Bhagalpur University, Distrift Bhagalpur 8. The Principal Kabir Moti Darshan College, Parbatta, District Khagaria … Respondents ---------------------------------- 4. 21.11.2011 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ in the nature of writ of mandamus/certiorari for quashing the order as contained in Memo No. B/18760-819 dated 30.08.1999 issued by Respondent No. 8, whereby and whereunder, the petitioner has been disengaged from his service and further for issuance of an appropriate writ(s)/direction(s) directing the Respondents not to disturb the petitioner from his post in Kabir Moti Darshan College, Parbatta, District Khagaria ( in short K.M.D College, Parbatta, Khagaria). The petitioner also prays for 2 issuance of an appropriate writ(s)/direction (s) directing the Respondents to regularize/confirm his service on his post and to give all the consequential benefits.” Learned counsel for the petitioner has submitted that the petitioner having been appointed on the post of Lecturer in the department of Sociology of Kabir Moti Darsha, College, Parbatta, Khagaria on 14.02.1981 and having been allowed to continue in service for a period of more than 30 years has been disfavoured by not regularizing his service specially when the University has regularized the services of similarly situated persons namely, Umesh Kumar who too was appointed as a temporary Lecturer in the same College and in the same department of Sociology w.e.f 12.02.1981. To that extent learned counsel for the petitioner has also assailed the decision of the University in dispensing with the services of the petitioner by the impugned order dated 30.08.1999 and 07.09.1999. Learned counsel for the Tilka Manjhi Bhagalpur University (hereinafter referred to as the University) on the other hand has submitted that there would be no question of 3 regularizing the services of the petitioner on account of inherent infirmity in his appointment. He has also submitted that the services of the petitioner was never recognized by the University after the College became constituent unit and the impugned orders were passed by way of general direction to the concerned head of the Institution for not taking work from anyone whose services were not taken over by the University by way of absorption in terms of Section 4 (1)(14) of the Bihar State Universities Act (hereinafter referred to as the Act). Mr. Anil Singh, learned counsel for the University has also submitted that the case of Umesh Kumar was quite distinguishable, inasmuch as, his services were absorbed by the University in terms of the Chancellor’s statute dated 29.01.1986 envisaging the absorption of certain category of Lecturers appointed up to 28.02.1982 and fulfilling the terms and conditions in the statutes dated 29.01.1986. In the considered opinion of this court, the unexplained delay of more than 8 years in filing of this writ application by 4 itself would be fatal for the petitioner, inasmuch as, the prayer made by him in this writ application as quoted above would go to show that he had assailed the orders dated 30.08.1999 and 07.09.1999 by filing this writ application on 24.07.2007. A question therefore, would arise that if the petitioner’s services were not taken over and he was also never paid salary from the funds of the University after the College was made constituent, could he create a cause of action by assailing the stale orders of the year 1999? From the materials on record, it becomes clear that any order of absorption of the petitioner with retrospective effect would seriously prejudice the working Lecturers in the department of Sociology whose services has already been absorbed by the University including that of Umesh Kumar and in that view of the matter when the third party right has already been created, the unexplained delay of more than eight years in filing of this writ application by the petitioner would be fatal. The question of delay apart, this court 5 would find that the appointment of the petitioner allegedly made on 13.02.1981 by the Secretary of the Governing Body was itself wholly without jurisdiction. On 13.02.1981, Kabir Moti Darshan Collge, Parbatta being an affiliated College and thus governed by the statutes framed for the functioning of the Governing Body of the College would by itself be a clear answer to the alleged claim of appointment of the petitioner, inasmuch as, the Secretary of the Governing Body in his independent capacity had appointed the petitioner in anticipation of the approval of the Governing Body and the University. The statutes regarding Governing Body framed by the Chancellor has clearly defined the function of the Governing Body and under clause-5(b), it is only the Governing Body of the affiliated College which has the power to make appointment against sanctioned post of teachers subject to the provisions of the Act. In the present case however it is the Secretary of the Governing Body who in anticipation of the approval of the Governing Body had made such appointment 6 though clause-7 of the said Governing Body statutes does not vest any such independent power in the Secretary of the Governing Body to make appointment on a teaching post. Such an appointment of the petitioner, therefore, being void ab initio and also in teeth of Section-57(a) of the Bihar State Universities Act requiring any appointment on the post of Lecturer exceeding six months only on the recommendation and/or concurrence of the Bihar College Service Commission was definitely illegal. It is also an admitted fact that on 13.02.1981, the third sanctioned post of Lecturer in the department of Sociology in the College was also not available inasmuch as such post was created and sanctioned by the State Government in 1991 and therefore, the appointment of the petitioner being without undergoing any selection process against an unsanctioned post did not confer him any right muchless a right for being absorbed in University Service. The illegality in the appointment of the petitioner in fact was/is apparent on the face of record, inasmuch as, the 7 petitioner also did not possess the requisite qualification laid down for the post of Lecturer. The Chancellor in the statutes relating to mode of appointment, pay scale and qualification for the post of teachers of affiliated degree Colleges in the faculties of Arts, Science and Commerce dated 24.04.1978 had laid down the minimum qualification for the post of Lecturer which reads as follows:- “The posts of teachers of affiliated Degree College shall be filled up by open advertisement. The pay scales and qualifications for these posts shall be as follows:- (1) Lecturer: Pay scale-700- 40-1100-50-1300-Assessment-50-1600. MINIMUM QUALIFICATION (a) A consistently good academic record with 1st or high 2nd class at the Master’s Degree in the relevant subject, or an equivalent degree of a foreign University, and (b) a M. Phil. Degree or recognized Degree beyond the Master’s level published work indicating the capacity of a candidate for independent research work: Provided that if a candidate possessing the qualification as at (b) above is not available or not considered suitable, the college, on the recommendation of the Commission, may appoint a person possessing a consistently good academic record on the condition that he will have to obtain a M.Phil. degree or a recognized Degree beyond the Master’s level within five years of his appointment, failing which he will 8 not be to earn future increments till he obtains that degree or give evidence of equivalent published work of high standard.” (underlining for emphasis) The petitioner admittedly had only secured 49 per cent marks in his post graduate examination and thus did not possess the high 2nd class Masters Degree in the relevant subject of Sociology. The expression high 2nd class in Master’s Degree in relation to appointment of a teacher was gone into by the Apex Court in the case of Dr. J. P Kulshrestha and Ors vs Chancellor Allahabad University & Ors reported in 1980(3)SCC 418:- Now, I may come to the plea that was taken before the Panchayat Secretary that notices were sent by U.P.C. to all the candidates as most of them did not appear for counseling pursuant to the notice, petitioners who were below in the merit list were appeared and selected. In relation to this, this Court would first observe, as to why when advertisements are issued calling for applications, date, time and place for scrutiny of application, counseling and preparation of merit list and date of issuance of appointment letters are not fixed at hand and made known to public. This Court has found that in some cases in some districts this is a practice that is followed. That makes the system of selection transparent. Here, why was this not followed is not known. Here, the merit list was prepared in January, for two months there was no activity, then 9 suddenly on 08th March activities start and between 8th to 10th of March postal notices (did as U.P.C.) are issued, counseling held and appointment letters issued. Appointment is, admittedly, denied to much more meritorious candidates. If this is not fraud, I wonder what it is. In connection of U.P.C., all I can say is that a similar plea was taken in the case of Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and Ors. since reported in AIR 1994 Supreme Court 678. In paragraph 59, this is what the Apex Court has held:- “….It is also of significance that Gadakh alleges having sent a letter dated 16th May, 1991 under certificate of posting to the Maharashtra Times Office disputing correctness of the news-item (Exh.90). The receipt of that letter by the addressee is denied and the likelihood of its dispatch by Gadakh is extremely doubtful since it was not sent by registered post and a certificate of posting being easy to obtain is not reliable. Expense being immaterial in that election for both sides, it is extremely unlikely that Gadakh would send such a letter under certificate of posting and not by registered post….” Obviously, the plea of U.P.C. was fraudulent. No letters can be delivered within 24 hours, it was only applied to deny legitimate candidates their appointment and give unfair advantage to the petitioners.” It would thus be clear that even if a mid line as observed by the Apex Court is drawn, a person in order to be appointed as Lecturer under the statutes that was in 10 force at the time of appointment of the petitioner had to possess at least 52.5 per cent marks so as to constitute high 2nd class, inasmuch as, 45 per cent marks gives a person 2nd class and 60 per cent give first class and therefore, the mid line for holding the person to have secured high 2nd class is 52.5 per cent or above. The Apex court in the case of Dr. Kulshrestha and Ors (supra) in fact had held 54 per cent marks in post-graduate examination to qualify for high a 2nd class. That being so, the petitioner also did not possess the requisite qualification for being appointed on the post of Lecturer. Learned counsel for the petitioner, however, had submitted that the post of Lecturer in Sociology was sanctioned by the State Government in the year 1991 but as the date of recommendation by the College of the State Government was 02.02.1982, he could still be governed for his regularization of service in terms of the statutes of the Chancellor dated 29.01.1986. As noted above, the case of the petitioner for his regularization in terms 11 of the statutes dated 29.01.1986 was considered by the selection Committee of the University which had recorded the following finding:- “Validity for absorption of teachers: KMD College, Parbatta became a constituent unit of Bhagalpur University on 29.07.1982. But as per the conversion Committee report and the letter of the College Principal, the following three teachers were appointed by the Secretary/G.B of the then affiliated College with effect from the dates given below- 1. Sri Girija Bhushan Thakur 11.02.1981 2. Sri Umesh Kumar 12.02.1981 3. Sri Kameshwar Chawdhary 14.02.1981 These appointments were made obviously against unsanctioned posts. So far as the procedure of appointment is concerned, the papers indicate that two posts were advertised in a Patna daily (The Searchlight, dated 24 Jan. “81 photo copy at 15/C in File- III) and the candidates were interviewed on 8.2.81. Thereafter, the secretary issued the appointment letters. The College G.B at its meeting held on 31.5.81 is said to have endorsed the Secretary’s appointments made w.e.f the dates mentioned above. But neither the G.B’s decision was communicated to the candidates, nor the G.B’s proceeding Register is available to confirm it. The committee also fails to appreciate how three candidates were appointed retrospectively against the two posts advertised. Late Sri Suresh Pd. Yadav, then lecturer in Sociology in K.K.M, College, Pakur 12 is supposed to have acted as expert at the interview. Surprisingly the two recommendations made by him and submitted before the Committee by Sri G.B.Thakur and Sri. K. Chawdhary are different in as much as Sri. Thakur’s name appears at the top in one list(24/C in File- III) and Sri. Chawdhary’s name in the other (40/C in File-III). What is more, the signature of Late Sri Yadav on the tow recommendations are also different and leads the Committee to believe that one of them is a fake paper. But since neither the proceeding Register is available, nor the expert is alive, the genuineness of the recommendation is difficult to verify. But himself being a junior lecturer in Sociology at Pakur Sri Yadav was not competent to act as expert and therefore his recommendation has little substantial value. The marks obtained and submitted by the three candidates at B.A (Hons) and M.A in Sociology are given below: Candidates B.A (Hons.) I.A % Of Marks at M.A Sri G.B Thakur Spl Hons. Bhagalpur Univ. 1978 270/6= 45% 1977 Total 421/8 52.6% Sri Umesh Kumar LNMU: 1976 310/6=51.7 % 1978 430/8 53.8% Sri K. Chawdhary Bhag. Univ. 1976= 270/6=45% 1978 49% The appointment letters issued by the College Secretary to Sri G.B. Thakur (33/C in File- III) and Sri Umesh Kumar (20/C in File-III) indicate that they were appointed against the first and second posts of Lecturer in 13 Sociology in KMD College. There is no such mention of the post in the appointment letter of Sri. K. Chawdhary (42/C in File-III). All agree that Sri Umesh Kumar was appointed and is working against the second post, but both Sri Thakur and Sri Chawdhary stake their claim against the first post. So their cases deserve special attention and are being discussed here under separately. Sir Girija Bhushan Thakur:------- Sri. Kameshwar Chawdhary: Sri. K.Chawdhary is a claimant for the first post of lecturer in Sociology in KMD College Parbatta . In case, Sri Thakur, because of his conduct, is not absorbed, claim of sri Chawdhary for absorption deserves consideration. But his appointment suffers from the following weaknesses: 1. That his marks obtained at M.A are only 49 %(39/C in File-III) and so he did not fulfil the minimum statutory qualification to be appointed as a lecturer at the time of his appointment. However, as per the instruction of the Chancellor (contained in letter from the Dy. Secretary to the Governor dated 17th Aug. 1987 filed at 46/C in File III) for regularization of services of purely temporary lecturers appointed on or before 28th February 1982 the minimum qualification is only “at least a second class Master Degree in the subject” which the candidate possesses. 2.That his appointment letter, supposedly issued by the College Secretary dated 13.2.1981( Photocopy on 42/C in File III) does not contain any letter number. Signature of Sri Shiva Shankar Bhagat(The 14 Secretary) apparently does not tally with his signatures on several letters filed by the Sri. G.B. Thakur and Sri Umesh Kumar as contained in File III. This raises serious doubt regarding the genuineness of the appointment letter which forms the basis of claim of Sri. Chawdhary. The letter needs authentication from Sri Shiva Shankar Bhagat and/or a signature expert. 3. That the G.B.’s Proceeding Register is not available. But the Photocopy of the proceeding of the G.B. meeting held on 31.5.81 filed in File III at page 26/C indicates that the name of Sri Kameshwar Chawdhary in inserted at the bottom of the page in a different handwriting. 4. That Dr. N.K. Shukla, Head of University Deptt. Of Sociology of the University had inspected the College on 28.9.81 alongwith the then Inspector of Colleges Dr. A.P.Singh. His report dated 23.10.81 (25/C in File III) contains names of three working lecturers in sociology, but not that of Sri. K.Chawdhary. He has stated clearly that all those working there had more than 52.5% of marks at M.A which Sri Chawdhary does not possess. This gives doubt as to whether Sri Chawdhary does not possess. This gives doubt as to whether Sri Chawdhary did the actual teaching work in the College which can be verified from the attendance Registers of the subject. 5. That another photocopy of the Inspection Report is also available in File no. II in which Dr. Shukla is supposed to have mentioned the name of Sri Kameshwar Chawdhary as no. 1. The then Vice-chancellor constituted a Commission consisting of the 15 Proctor and the Inspector of Colleges to inquire into the matter. The Inquiry Report (given on page 5/N in File II) found this paper (giving benefit to Sri Chawdhary) as fake and reported the appointment of Sri Chawdhary as invalid and based on fraud ( ). The report has been accepted and endorsed by the vice- chancellor (af./N in File II). As such the cases of Sri G.B.Thakur and Sri Kameshwar Chawdhary suffer from inherent weaknesses in respect of validity for absorption of teachers. There is no such controversy in the case of Sri Umesh Kumar except that he has been working in the College against unsanctioned but proposed post without affiliation in the subject. But as per the amended statutes (photocopy given on page 46/C in File III) absorption of teachers is possible against posts proposed to the State Govt. prior to 28.2.82 which gives protection to Sri Kumar after affiliation in the subject is granted to the College.” The detailed consideration made by the Three Man Committee consisting of the Principal, the University Professor and Financial Advisor will leave nothing for speculation that the case of the petitioner did not also qualify for absorption on the post of Lecturer in the department of Sociology in terms of the statues dated 29.01.1986. 16 So far the plea of discrimination of the petitioner as against Dr. Umesh Kumar is concerned, it has to be found that his services were absorbed in terms of the Chancellor’s statutes dated 29.01.1986 by the order of the University dated 23.08.1997 as contained in Annexure-C to the counter affidavit, in view of the order of the Chancellor dated 08.07.1997. It has to be also kept in mind that Umesh Kumar as noted above in the Three Man Committee was shown to have secured 53.8 per cent marks in his M.A Examination and thus had a high second class. Umesh Kumar was also found to have fulfilled requisite conditions laid down in the statutes of the Chancellor dated 29.01.1986 and his absorption made in the year 1997 was never challenged by the petitioner. Thus after 10 years of such absorption of Umesh Kumar, the petitioner by filing of this writ application cannot be permitted to question absorption of Umesh Kumar or draw support from him for his own regularization when his appointment for the reasons indicated above was itself void ab initio. 17 As noted above, the College of the petitioner became constituent unit of Bhagalpur University w.e.f 29.07.1982 and the University in terms of Section-4(1)(14) of the Bihar State Universities Act did not find the petitioner fit for his being absorbed in the University service. The case of the petitioner in fact was also considered for absorption in terms of the Chancellor’s statue dated 29.01.1986, wherein, he was also not found fit for being absorbed in service and as such his plea that he was continuing in the College till 1999 will be of no avail. In any event, the petitioner even as per his own version is out of service since, 1999 and therefore, there would be no question of regularization of his service. That being so, this Court does not find any merit in the application and the same is, accordingly, dismissed. Surendra/ Ranjan (Mihir Kumar Jha,J.)