IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12477 of 2003 BASANT KUMAR CHOUDHARY, son of Late Jitendra Kumar Choudhary, resident of Mohalla- Lichibagan, S. K. Tarafdar Road, Adampur, P.S. Barari, Town & District- Bhagalpur. …Petitioner. Versus 1. THE TILKAMANJHI BHAGALPUR UNIVERSITY, Bhagalpur through its Registrar. 2. The Vice-Chancellor, T. M. Bhagalpur University Bhagalpur. 3. The Registrar, T. M. Bhagalpur University, Bhagalpur. 4. The Proof-in-Charge, Central Library, T. M. Bhagalpur University, Bhagalpur. 5. The State of Bihar through the Commissioner-cum- Secretary, Department of Higher Education, Govt. of Bihar, Old Secretariat, Patna. 6. Mahendra Harijan, s/o name not known to the petitioner, newly appointed Classiffier-cum-Cateloguer, Central Library T. M. Bhagalpur University, Bhagalpur. .. Respondents. ----------- 3. 24.09.2010 Having heard Mr. Purushottam Kumar Jha, learned counsel for the petitioner, learned counsel for the University, learned counsel for the State as also learned counsel for the respondent no. 6 as with regard to the following relief prayed by the petitioner:- "(i) Issuance of an order, direction or writ in the nature of certiorari quashing that part of Office Order Nos. 32/2003 dated 25.1.2003 & 171/2003 dated 5.6.2003, whereby and whereunder the respondent University authorities have appointed the respondent no. 6 and other similarly situated persons on the post of Classifier-cum-Cateloguer and Assistant Librarian in the Central Library of the respondent University. (ii) Issuance of an order, direction or appropriate declaration that the University authorities at its own and in absence of any recommendation from the University Service Commission, cannot make any fresh appointment on the post of Classifier, 2 Cateloguer and Assistant Librarian in the respondent University. (iii) Issuance of an appropriate order, direction or declaration that the action of the respondent authorities in filling up the post of Classifier-cum- Cateloguer and Assistant Librarian in the respondent University is highly illegal, arbitrary, malafide and violative of Article 14 and 16 of the Constitution of India. (iv) Issuance or order, direction or writ in the nature of mandamus commanding the respondent authorities to fill up the above said posts of Classifier-cum-Cateloguer and Assistant Librarian in the Library of the University in accordance with law after giving due opportunity to the petitioner and other qualified persons to participate for the same selection process. (v) Issuance of appropriate order, direction or writ in the nature of mandamus commanding the respondent authorities to consider the case of the petitioner for grant of regular promotion to the petitioner on the post of Professional Juniors in the Library of the respondent University." this Court is of the considered opinion that this writ application of the petitioner so far it relates to assailing the appointment of respondent no. 6 is not sustainable inasmuch as when the petitioner has challenged the appointment of respondent no. 6 on the ground that the University had no power to fill up the post of Classifier- cum-Cateloguer, which according to his knowledge and belief is a Class II posts and could be filled up only on recommendation of University Selection Committee, he has no where stated that he possesses the qualification for 3 the said post as prescribed by the UGC. The law in this respect is settled that no busy body can be allowed to assail appointment unless he is himself fully eligible and also an applicant for the post in question. From the reading of the advertisement it would be clear that the University had advertised Class III and Class IV posts for its being filled up through selection process. Admittedly, the petitioner was not a candidate for any post against the aforesaid advertisement and therefore after the said advertisement had reached its finality by way of selection and appointment of a large number of persons as would be apparent from reading of Annexure 6 containing the name of as many as 106 persons and Annexure-7 containing the name of as many as 215 persons, the challenge coming from the petitioner that one of such Class III post by way of appointment of respondent no. 6 could not have been filled up as the said post is of Class II category has to be rejected. The reliance placed by Mr. Jha learned counsel for the petitioner to the Circular of the University Grants Commission laying down the pay-scale and the minimum qualification for the post of Librarian is also wholly 4 misplaced inasmuch as from the reading of the UGC guideline which has been only partially adopted by the State of Bihar in its resolution only for the purpose of giving pay-scale as per the qualification prescribed, it would be clear that the post which had been included therein is either of a Librarian or Library Staff of the University and the same no where even remotely deals with the post of Classifier-cum-Cataloguer. Thus when the posts included in U.G.C. Circular have been catagorised either as Librarian or Assistant Librarian or the College Librarian or the Deputy Librarian etc. it can not be said that the post of Classifier-cum-Cataloguer on which appointment of respondent no. 6 was made, is a post for which the essential minimum qualification is post graduation. Moreover, the respondent no.6 has enclosed the Government notification laying down the qualification for the posts as contained in Annexure-C to the counter affidavit and from reading of the same it becomes absolutely clear that in the set up of library either for the University or its Constituent Colleges there are the posts of Librarian, Assistant Librarian and other classified posts. In such library the post of Classifier-cum-Cataloguer in 5 fact is one of such post inasmuch as it has been given the pay-scale of Rs.1400 to 2300 which is the pay-scale of a Senior Selection Grade Clerk. In that view of the matter, it would be very difficult for this Court to accept the submission of Mr. Jha that the Classifier-cum-Cataloguer is a Class II posts on which the Vice-Chancellor of the University on the basis of a recommendation made by a Selection Committee in terms of the advertisement had no power to make the appointment. Even otherwise it is well settled that if a person does not hold the necessary qualification and has not applied for the post, he cannot be permitted to challenge such appointment. Reference in this connection may be made to the judgment of Apex Court in the case of Dr. Umakant Saran vs. State of Bihar & Ors., reported in AIR 1973 SC 964 wherein it has been held that if a person does not apply for the post or does not have qualification for the post he cannot challenge such appointment. As a matter of fact, it appears to this Court that the whole writ application came to be filed by the petitioner by way of his vengeance inasmuch as when he was transferred from the department of Physics to the 6 department of Political Science and was sought to be replaced by respondent no. 6 in terms of the order dated 5.4.2003, he had firstly assailed such posting of Respondent no. 6 by filing a representation before the Chancellor and while the same had remained pending he had come out to assail the very appointment of respondent no. 6. In such circumstances, this Court must hold that there is no infirmity in the appointment of respondent no. 6 on the post of Classifier-cum-Cataloguer in the pay-scale of Rs.1400-2300. In this context, counsel for the petitioner has pointed out that the grievance of the petitioner with regard to non-payment of salary on account of posting of respondent no. 6 in the department of Political Science had been raised by the petitioner by filing a writ petition, CWJC No. 4317 of 2000 which was disposed of by an order dated 23.2.2006 giving liberty to the petitioner to represent his case and directing the Chancellor to consider such representation. Thereafter, the petitioner had moved again this Court by filing a review application, C. Rev No. 136 of 2006 by taking certain plea that his I.A. No. 4595 of 2005 was not considered at the time of passing the order 7 dated 23.2.2006. This Court had only left the matter open to the petitioner while disposing of the review application giving liberty to the petitioner to raise even that issue before the Vice-Chancellor of the University. Thus, it is clear that the petitioner in fact is only seeking his benefit of continuation and payment of salary and that is how once he had found the appointment of respondent no.6 to be made on the post of Classifier-cum-Cataloguer in the pay-scale of Rs.1400-2300 to be coming in his way that had filed this writ application. The submission of Mr. Jha by placing reliance on a communication of University dated 14.9.1992 as with regard to the post of Classifier-cum-Cataloguer to be equivalent in the pay-scale of Rs.2200-4000, as a matter of fact is also not at all proved because no post mentioned in a Bhagalpur University chart statement refers to the fixation of pay of Librarian. There is infact no post with designation of Classifier-cum-Cataloguer therein and the same only refers to the post of Deputy Librarian, Assistant Librarian, C.C, P.T.I. Librarian etc. and therefore it cannot be said with certainty that the appointment of respondent no. 6 having been made in the pay Scale of Rs.1400-2300 8 was one which was covered by Annexure-18 as was sought to be emphasized by the learned counsel for the petitioner. At this stage counsel for the petitioner has also pointed out that by a notification dated 21.7.1990 the University had classified certain posts in the University and its Constituent Colleges with the pay scale of Deputy Librarian as 1350-2000/-, Assistant Librarian/Professional Jr/ Classifier-cum-Cataloguer in the pay scale of Rs. 1000 to 1820 but then on the basis of this and the subsequent government notification dated 13.4.1991 it cannot be said that the such University Notification will prevail inasmuch as the State Government empowered under Section 35 of Bihar State Universities Act to create and sanction post had laid down the number of posts in the following manner. fo'ofo|ky;ksa@LukrdksRrj fo|ky;ks vaxhHkwr egkfo|ky;ksa ds iqLrdky; dfeZ;ksa ,oa 'kkjhfjd f'k{kk vuqlsodks ds iqujhf{kr osrueku dk fooj.kA 1- eSfVzd dh ;ksX;rk dks 535&765 975&1540 iqLrdk/;{k ds in ij gks rFkk in/kkjd Hkh ogh ;ksX;rk j[krs gksaA 2- eSfVzd ds ckn iqLrdky; 535&765 975&1540 esa laf{kfIr izf'k{k.k ¼'kksVZ VsZfuax½ 9 rFkk in/kkjd½ iqLrdk/;{k Hkh ogh ;ksX;rk j[krs gksA 3- iqLrdky; ds ,sls deZpkjh dks vuqlfpoh; lEoxZ ds gh os viuh viuh dksfV ds eqrkfcd fuEukafdr osru ik;saxs ¼d½ fuEuoxhZ; fyfid 535&765 975&1540 ¼[k½ mPpoxhZ; fyfid 580&960 1200&1800 ¼x½ duh; izoj dksfV fyfid 580&965 1320&2040 ¼?k½ ojh; izoj dksfV fyfid 730&1080 1400&2300 4- Lukrd ds lkFk iqLrdky; 785&1210 1400&2600 foKku dh laf{kIr izf'k{k.k rFkk in/kkjd ¼iqLrdk/;{k@ lgk;d iqLrdk/;{k Hkh ogh ;ksX;rk j[krs gksA 5- Lukrd iqLrdky; dk;Z esa 785&1210 1400&2600 ikap o"kksZa dk vuqHko ,oa led{k ;ksX;rk ds fy, rFkk in/kkjd iqLrdky;@lgk;d iqLrdk/;{k dh ogh ;ksX;rk j[krs gksA 6- Lukrd ds lkFk iqLrdky; 850&1360 1500&2750 foHkkx esa fMxzh ;k fMIyksek rFkk in/kkjd iqLrdk/;{k@ lgk;d iqLrdk/;{k@DyklhQ~kW;j izksQsluy ykbZczsjh vfllVsUV Hkh ogh ;ksX;rk j[krs gksaA 7- fo'ofo|ky; iqLrdky;@voj iqLrdk/;{k 1350&2000 2400&4150 8- lgk;d iqLrdk/;{k@izksQsluy 1000&1820 2000&3800 9- iqLrdky; lgk;d 580&860 1200&1800 10- lkVZj 580&860 1200&1800 11- iqLrdk/;{k¼egkfo|ky; ds fy,½ 2000&3800 ¼ osrueku mUgha dks vuqekU; gksxk tks jkT;iky lfpoky; ls fuxZr i=kad 1682@th0,l0 ¼1½ fnukad 15-7-86 esa fu/kkZfjr ;ksX;rk j[krk gks½ 10 From the reading of the aforesaid Government order it is thus clear that there is no post prescribing pay- scale of Classifier-cum-Cataloguer equivalent to Assistant Librarian and therefore whatever was stated by the University in the 1990 notification cannot be at least made applicable to the appointment of respondent no. 6 in the year 2003. That being so, this Court would not find any merit in this writ application and the same is hereby dismissed with a cost of Rs.1000/- to be paid by the petitioner to respondent no. 6. kanchan (Mihir Kumar Jha, J.)