IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.2703 of 2009 Dr. Preeti Sinha, W/O Vijoy Kumar Singh, R/O S-802, Udaigiri Bhawan, Budha Marg, Patna – 800001, at present working as rader in the faculty of education The State of Bihar. Xavier‘s College of Education, P.O. – Digha Ghat, P.S. – Digha, Patna 800011 .. Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, Human Resources Development Department, Bihar, Patna 3. The Patna University through it‘s Registrar, Patna 4. The Vice Chancellor, Patna University, Patna 5. The Selection Committee, Patna University, Patna 6. The Registrar, Patna University, Patna .. Respondents With C.W.J.C. No.4041 of 2009 Dr. Shampa Sinha, wife of Shri Ajoy Kumar Verma, aged about 43 years, resident of 1st Floor, Udai Prasth, Parmanand Path, Nageshwar Colony, Boring Road, P.S. Kotwali, district Patna .. Petitioner Versus 1. State of Bihar through Principal Secretary, Human Resources Development Department, Vikash Bhawan, Patna 2. Chancellor of Universities of Bihar through the Principal Secretary, Governor‘s Secretariat, Rajbhawan, Patna 3. Patna University through Registrar, Patna University, Ashok Rajpath Patna 4. Vice Chancellor, Patna University, Ashok Rajpath, Patna .. Respondents With C.W.J.C. No.5547 of 2009 Shashi Prabha, wife of R.P. Sinha, resident of Kadamkuan, opposite Angan Apartment, near Congress Maidan, Police Station Kadamkuan, district Patna - 800003 .. Petitioner Versus 2 1. Patna University through it‘s Vice Chancellor, Ashok Raj Path, Patna – 800004 2. Vice Chancellor, Patna University, Ashok Raj Path, Patna – 800004 3. Registrar, Patna University, Ashok Raj Path, Patna – 800004 .. Respondents **** For the petitioners .. Mr. Basant Kumar Choudhary, Sr. Adv. With M/S Nishant Choudahry, Amit Prakash, Advs. For the Chancellor .. Mr. Shivendra Kishore, Adv. For the State .. Mr. Mayank Rukhaiyar, Asst. Counsel to G.A. V For the University .. Mr. Ahsanuddin Amanullah, S.C. XVII with M/S Ajay Kumar Sinha and S. Iqbal Ahmad, Asst. Counsel to S.C. XVII **** /9/ 18.08.2009 Heard the counsel for the parties. 2. All three writ applications are being taken together for analogous hearing and disposal as similar relief has been prayed by the petitioners in these writ applications. 3. Facts leading to filing of present applications relate to publication of two advertisements by the Patna University, inviting applications for the posts of Principal, Professor and Reader in different college of Patna University including that of Women‘s Training College. Advertisement No. 03/08, dated 17.10.2008, was published in daily newspaper ―Hindustan Times‖ inviting 3 applications for the post of Principals and Advertisement No. 02/08 was published in the daily newspaper ―Hindustan Times‖, dated 12.02.2008, inviting applications for the post of Professor and Reader in the faculty of education in the concerned colleges. 4. Dr. Preeti Sinha (petitioner in C.W.J.C. No. 2703 of 2009) applied for all three posts and petitioner in other two writ applications had applied only for the post of Principal. Petitioners‘ applications were subjected to screening on the basis of the documents produced by them and vide different interview letters they were asked to appear for interview for the posts they had applied. It is specific case of Dr. Preeti Sinha that on 17th February, 2009, the Deputy Registrar of the University made a telephonic conversation and asked for furnishing her initial appointment letter, since, it had not been furnished with the initial application. The petitioners were asked to appear before the Interview Board on 22.02.2009. They appeared before the Board and signed the attendance register for appearing before the Board. The Selection Committee was headed by the Vice Chancellor, Patna University. This is the common case of all three petitioners that it was to their utter surprise when during their interview process they were told that since they do not have required teaching experience, as such, their candidature can not be considered for the post of Principal, Professor/Reader. Dr. Preeti Sinha, during her interview process, 4 was asked to produce concurrence certificate issued by the Bihar College Service Commission, which was beyond the requirement of the advertisement. Petitioner‘s case is that on account of non- production of concurrence certificate, she was not allowed to give interview and her entire teaching experience was considered of no value for the purposes of appointment. All three petitioners have alleged that the action of the respondent was discriminatory and in complete violation of Articles 14, 16 and 30 of the Constitution of India. 5. Prayer of the petitioners is for quashing the process of appointment for selection of Principal, Professor/Reader pursuant to Advertisements No. 02/08 and 03/08 and to direct the respondent Patna University to consider candidature of the petitioners along with other eligible candidates after holding fresh interview for appointment on these posts. 6. The questions, which need consideration in these applications, are (a) whether concurrence of the Constituent College Service Commission is sine qua non for admitting experience a teacher of unaided minority institution for recognizing her teaching experience for appointment, on the posts referred in the advertisement in question ? (b) Whether petitioners who had requisite qualifications for appointment on the post of Principal, Professor/Reader could have been denied opportunity of being 5 interviewed and then appointed on the posts on the ground that they do not possess requisite qualification, specially after issuance of interview letters on proper screening of their documents annexed with petitioners‘ applications ? 7. Dr. Preeti Sinha (C.W.J.C. No. 2703 of 2009) is M.A. in History (first division from Patna University), M.Ed. (first division from Patna University) and Ph.D in education. Presently she is working on the post of Reader at St. Xavier‘s College of Education, Digha Ghat, Patna. She was initially appointed as Lecturer in the year 1988 in the subject of education in St. Xavier‘s College of Education, unaided minority institution. Her appointment on the post of Lecturer was confirmed with effect from 1st July, 1989. Subsequently, on the basis of her academic qualification, good academic work and on the basis of interview, the post of Lecturer held by her was upgraded to the post of Reader with effect from 1st April, 2008. Petitioner‘s case is that St. Xavier‘s College of Education is a recognized unaided minority institution. The Government of Bihar vide Letter No. 119, dated 24.03.1994, had accorded permanent recognition to the institution. The institution is affiliated to Magadh University since 1997. The permanent recognition has also been accorded by National Council for Teachers' Education Act, 1995, in the year 1997 as well as it has been accredited with grade B+ + by National Assessment and 6 Accreditation Council. This institution as established by the Jesuits in the year 1988 and being managed by them. 8. Dr. Shampa Sinha (petitioner in C.W.J.C. No. 4041 of 2009) is presently holding the post of Principal, Millia Fakhruddin Ali Ahmad B.Ed. College, Rambagh, Purnea, which is affiliated to B.N. Mandal University, Madhepura. As per her own admission she was appointed for six months period on eight occasions as a Vice Chancellor‘s appointee in the Patna University, which comes to four years of teaching experience in the Patna University. For three years she taught at Siddharth Mahila College, Patna, and three years in Indira Gandhi National Open University. Total work experience, according to the petitioner, was more than ten years, which is requisite teaching experience for the post of Principal. This petitioner was not interviewed for not having five years‘ teaching experience in continuation in one institution though she claimed to have ten years‘ teaching experience, but, as per her own admission it was not in continuity. 9. Dr. Shashi Prabha (petitioner in C.W.J.C. No. 5547 of 2009) had initially filed I.A. No. 1819 of 2009 in C.W.J.C. No. 2703 of 2009 for being impleaded as petitioner. Subsequently, she filed this writ application. Presently, she is working as Principal at Teachers‘ Training Institute, V.K.S.U. Arrah. She was initially appointed as Lecturer in the lower pay scale, but, later on she was 7 appointed in the pay scale of Lecturer as per University Grant Commission pay scale. Her case is that she was appointed on the post of Project Officer in Patna University and taught in the faculty of B.Ed. and M.Ed. Since 01.09.1984 till 25.06.2003 she continued on the post of Project Officer, which was an Adult Education Programme of University Grant Commission. The post of Project Officer, as a policy decision, was declared equivalent to teaching faculty of Patna University by the University Grant Commission for all academic and administrative purposes. In the year 2003, she was appointed as permanent Lecturer, pursuant to a regular selection process keeping in view her total experience of teaching in B.Ed. and M.Ed. She was appointed as Principal in the Teachers‘ Training Institute, Arrah, by the Vice Chancellor, where she is still working. Petitioner‘s case is that taking into account her past service as Project Officer she had adequate ten years‘ teaching experience and her candidature could not have been rejected at the threshold of not having requisite teaching experience. 10. In the counter affidavit three grounds have taken by the Patna University for substantiating the action taken by the Selection Committee. First ground is that appointment of petitioner in C.W.J.C. No. 2703 of 2009 by the Governing Body of the St. Xavier College of Education was not concurred by the University Service Commission as required under Section 57(A) (1) of the 8 Bihar State Universities Act, 1976, as such, her teaching experience can not be counted as a requisite teaching experience for appointment on the post of Principal, Professor/Reader. The second ground is that petitioner‘s service was confirmed with effect from 1st July, 1989, as Lecturer in the concerned college in a basic scale of Rs.2000-60-2300-EB-75-3200-100-3500, which is lower than the pay scale of Lecturer in an affiliated/constituent college. A clear cut instruction has been issued by University Grant Commission in it‘s package under Clause 7 for counting past experience and duly accepted by Government of Bihar Department of Higher Education, Patna. The guideline provides that for giving benefit of past experience the post held by the incumbent must be equivalent to grade/scale of pay to the post of Lecturer. Since, the petitioner was appointed in a lower scale than the scale provided for the post of Lecturer by the University or the College, her experience can not be counted as experience of the post of Lecturer in the University or College. Third ground is that the institution in which the petitioner was appointed and working as Lecturer in the year 1988 has not been recognized as unaided minority institution based on religion, as such, she can not claim the privilege allowed to the minority institutions under Article 30 of the Constitution of India. 11. In reply to the first ground taken in the counter affidavit, the petitioner has stated that the concurrence of 9 petitioner‘s appointment by the University Service Commission was not at all required, since, second proviso to Section 57(1)A of the Bihar State Universities Act, 1976, has been declared ultra vires in a decision reported in 1984 P.L.J.R., 86 (Governing Body of Karim City College & Ors. Vrs. The State of Bihar & Ors.). Section 57(A)(1) of the Bihar State Universities Act, 1976, reads as follows : ―—Appointment of affiliated colleges not maintained by the State Government, shall be made by the Government of Bihar on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement or demotion in the rank of teacher of such colleges shall be done by the Governing Body in consultation with College Service Commission, in the manner prescribed in the statute provided that the Governing Body of affiliated minority colleges based on religious and language shall appoint, dismiss, remove or terminate the services of the teachers or take disciplinary action against them with the approval of the College Service Commission‖. Minority colleges, under the statute governed by the ‗proviso‘ were for consideration before the Patna High Court in the reported decision, 1984 P.L.J.R., 86. Placing reliance on nine judges Bench decision reported in A.I.R.1974 S.C., 1389 (Ahmadabad St. Xavier College of Society & Anr. Vrs. State of Gujrat & Anr.) it was held that first proviso to Section 10 57(A)(1) is ultra vires being violative of Article 30 of the Constitution of India. 12. The Apex Court also in T.M.A. Pai Foundation & Ors. Vrs. State of Karnataka & Ors. reported in (2002) 8 S.C.C., 481, while considering similar issue formulated questions. Question 5 related to religious minority institution was ―whether the statutory provisions which regulate the facets of administration like control over technical agencies, control over Governing Body, conditions of policy, including recognition, withdrawal thereof and also of staff, employees, teachers, including their service conditions and regulation of fees etc. would interfere with the right of administration of minority ? The first part of question, related to unaided minority institutions, while deciding this question the Court expressed it‘s view that in case of unaided minority institution, the regulatory measures of control should be minimal and in the matter of day-to-day management, like, the appointment of staff, both teaching and non-teaching and administrative control over them, the management should have freedom and there should not be any external controlling agency. 13. Since, first proviso of Section 57(A)(1) has already been held ultra vires, being violative of Article 30 of the Constitution of India, in the circumstance, the concurrence of appointment of teachers made by the Governing Body of unaided 11 religious minority institution was not at all required. The Patna University and it‘s Selection Committee could not have refused petitioner from appearing for interview on this count that her teaching experience in the minority institution, in absence of concurrence of University Service Commission can not be taken into consideration. The stand of the University is nothing, but, illegal exercise of jurisdiction and this could not have been a ground for refusing the petitioner to allow her to appear before the Selection Committee. 14. So far the second ground relating to University Grant Commission‘s package and it‘s acceptance by the State Government, Department of Higher Education, vide Clause 7 relates to accounting of past experience for deciding seniority. It has nothing to do with the experience for the purposes of appointment. 15. Petitioner, in reply to the counter affidavit, has stated that the stand taken by the respondent University is wholly misconceived. The instruction in University Grant Commission‘s package is nothing, but, a modal/pattern/design/guideline for the purposes of implementation of the payment of package of salary/remuneration to the employees therein. These guidelines in no way create a right that would recognize or derecognize the service rendered by any employee so far it relates to counting of working experience in any of the institutions of higher studies is 12 concerned. It does not prove the validity of a teacher‘s appointment for the purposes of being appointed in any of the Government Colleges or Universities. The difference in pay scale in no way lead to detriment of the petitioner as the institution where petitioner is working is not a merely a minority institution, but, an unaided minority college, meaning thereby that the difference in the pay scale has no relevance despite the guideline so formulated by the University Grant Commission. An unaided minority institution may decide it‘s pay scale on account of financial crunches. I find that second ground taken by the respondent University is not at all convincing and any bearing upon service experience of petitioner. 16. The third objection raised by the University that the petitioner can not claim benefit allowed to a recognized minority institution as no document has been produced to show that St. Xavier College of Education is an unaided minority institution, based on religion. This has been answered by the petitioner drawing my attention towards Annexures 8, 10 and 17 annexed with the reply to the counter affidavit. Annexure 8 is the judgment passed in C.W.J.C. No. 18444 of 2006, Annexure 17 is another judgment passed in C.W.J.C. No. 10725 of 2001. In both these writ applications St. Xavier College of Education was petitioner. Opening line of the judgment is that petitioner is a minority institution set up for giving teachers‘ training and for preparing 13 students for B.Ed. degree course. Annexure 10 is a letter issued by the Director, Research and Training-cum-Additional Secretary to the Secretary, St. Xavier College of Education, contained in Memo No. 119, dated 24.03.1991, giving approval to the institution for running a minority institution. These three documents are sufficient for proving this fact that the petitioner was working in a minority institution, as such, all privilege for which a minority institution is entitled under Article 30 of the Constitution of India is available to the institution in which petitioner was working and to the petitioner. 17. The counsel for the University in course of his argument stated that since affiliation was given to the St. Xavier College of Education in the year 1997, as such, previous experience of petitioner, prior to affiliation and recognition by the Government of Bihar in the year 1994, can not be counted for the purposes of teaching experience. Reliance has been placed by the counsel appearing for the University on Full Bench decision reported in 1992 (1) P.L.J.R., 596 (Dr. (Sushri) Rajni Bala Agrawal Vrs. Lalit Narain Mithila University, Darbhanga & Ors.) I find that the Full Bench decision do not relate to minority institution rather it relates to a right of an affiliated college under Section 57(A)(1) of the Bihar State Universities Act, 1976. This decision has no application in the facts and the circumstances of present case. 18. So far case of Dr. Shashi Prabha (C.W.J.C. No. 5547 14 of 2009) is concerned, complete service record of the petitioner has been mentioned in the writ application which shows that the applicant without any break continued on the post of Project Officer and during this period taught in B.Ed. and M.Ed. faculty of education in Patna University. Since, 01.09.1984 till 25.06.2003 she continued on the post without any break. The post of Project Officer has been declared equivalent to teaching faculty of Patna University for all academic and administrative purpose. The Statement has not been denied by the University by filing counter affidavit. The letter of University Grant Commission has also been brought on record to substantiate petitioner‘s claim. The academic council of Patna University has also permitted the petitioner to get Ph.D. experience and considering her past experience she has been appointed as Principal of the Training College at Arrah. In this case, the petitioner, who had total teaching experience of more than twenty four years could not have been denied consideration of her candidature by the Selection Committee of Patna University on this ground that she did not possess requisite teaching experience. 19. However, petitioner, Dr. Shampa Sinha, herself has admitted that there is no continuity in her teaching service. On eight occasions she was appointed for six months as a Vice Chancellor appointee. The previous service can be counted, if it is without any break as per Clause 3(7) of the Statute of Patna University Act and 15 Clause 7 of the package of University Grant Commission. The service record of petitioner, Shampa Sinha, do not indicate that she fulfilled requisite teaching experience for being considered for appointment on the post of Principal. 20. In the circumstances, stated above, C.W.J.C. No. 2703 of 2009 and C.W.J.C. No. 5547 of 2009 are allowed. The Vice Chancellor and the Registrar, Patna University are directed to conduct fresh interview pursuant to Advertisements No. 03/08 and 02/08 and to allow the petitioners to appear in the interview for consideration of their candidature for the posts advertised through these two advertisements and for which petitioners Dr. Preeti Sinha and Shashi Prabha had applied. 21. C.W.J.C. No. 4041 of 2009 is dismissed. Cp:2/S.A. (Mridula Mishra, J.)