IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10561 of 2003 DEVENDRA KUMAR MISHRA, Son of Sri Raghav Sharn Mishra, resident of village Belwamore, P.S. Lauria, District West Champaran. Versus 1. KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, Kameshwar Nagar, P.S. L.N. Mithila University Campus, District Darbhanga through its Registrar. 2. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga. 3. The Registrar, Kameshwar Singh Darbhanga Sanskrit University Kameshwar Nagar, Darbhanga. 4. The Governing Body, Jutha Lal Sanskrit College, Majhauliya District West Champaran through its Secrtary. 5. Bihar College Service Commission, Boring Canal Road, Patna. Through its Secretary. with CWJC No.10910 of 2003 SHRIMATI AKABARI KUMARI, wife of Sri Jitendra Kumar Jha, residing in Bihar Sanskritik Vidyapeeth, Shekhpura, Raja Bazar, Patna. Versus 1. KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, Kameshwar nagar, P.S. L.N. Mithila University campus, District Darbhanga though its Registrar. 2. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar nagar, Darbhanga. 3. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga. 4. The Governing Body, Jutha Lal Sanskrit College, Majhauliya, District West champaran, through its Secretary. 5. Bihar College Service Commission, Boring Canal Road, Patna. Through its Secretary. ----------- 4 20.09.2010 Heard Counsel for the parties. In view of the fact that the supplementary affidavit filed today by the petitioner Devendra Kumar Mishra incorporating subsequent events has completely taken away the essence of the relief prayed for by them in their writ application, having identical prayer in both the writ applications reading as follows:- “(i)Issuance of a writ in the nature of 2 Mandamus directing and commanding the Respondent Governing Body to complete the formalities as required under section 2 (10) of Bihar College Service Commission, Act, 1976 for appointment of petitioner against the post of lecturer in the subject of History in Jutha Lal Sanskrit College, Majhauliya within the District of West Champaran for which the name of petitioner has been recommended by the Bihar College Service Commission vide letter No.424 dated 10.10.2002 on his being selected in an interview held on 25.9.2002 in pursuant to Advertisement no.841/94 and petitioner has submitted his request letter on 25.10.2002 before the Secretary of Governing Body. (ii)Issuance of a writ in the nature of Certiorari for quashing the Notification contained in Memo No. 12098 of 2002 dated 13.11.2002 issued under the signature of Registrar, Kameshwar Singh Darbhanga Sanskrit University, Respondent no.3 whereby and whereunder the affiliated colleges, including the college for which the name of petitioner has been recommended, has been restrained from making appointment of Lecturer without the prior permission of the University. By said notification the Governing Body of college has been directed to accept joining of Lecturer only after approval is granted by the University. (iii)Issuance of a consequential writ in the nature of Mandamus directing and commanding the Respondent University to recall its Notification dated 13.11.2002 and to take up the matter of appointment of the petitioner with the Governing Body of the college, Jutha mal Sanskrit College, Majhauliya (here- in-after to be referred to as the college) for acceptance of recommendation of the Bihar College Service Commission (hereinafter to be referred to as the Commission) after completing the formalities and consequently to accord due approval of the appointment of petitioner on the post of lecturer in History in the college in question and thereby to pay the salary and other emoluments to the petitioner to which he is entitled to. (iv)Issuance of an appropriate declaration that since the power of appointment of teachers of affiliated college is vested with the Governing Body of College on the recommendation of the College Service Commission under the provisions made under Section 57 A of the Bihar State Universities Act it cannot be superseded by any notification by the University. (v)Issuance of an appropriate declaration 3 that the stage granting approval of appointment by the University comes after the appointment of lecturer is made by the Governing Body of college on the recommendation of the Bihar College Service Commission and in that view of the matter the notification dated 13.11.2002 is without jurisdiction and is fit to be quashed/set aside. (vi)Issuance of an appropriate holding that by the impugned Notification the university has tried to take away the power of Governing Body as vested in it under Section 57 A of the Bihar State Universities Act and also under Article 33 (5) (b) of the Statute, which is against the law.” nothing infact would survive for adjudication inasmuch the only relief as with regard to payment of their salary subsequent to their appointment on the post of lecturer w.e.f. 17.1.2006 by the Governing Body of Jutha Lal Sanskrit Mahavidyalaya, Majhaulia (hereinafter referred to as the College) and its approval by Kameshwar Singh Darbhanga Sanskrit University on 14.3.2007 is a fresh cause of action. Mr. Durga Nand Jha learned counsel for the petitioner however has submitted that such a direction for payment of salary of the petitioners can be given in these very cases. In the considered opinion of this Court the grievance of the petitioner in these cases initially was with regard to their appointment by the Governing Body in a private affiliated recognized Sanskrit College, which as per provisions made in the Bihar State Universities Act under Section 60 has to be made by only by the Governing Body of the College. The petitioners however had quashed the jurisdiction of the university in the matter of giving approval of service to the teachers of affiliated college. 4 This Court would find that the relationship between the affiliated College and the University is well defined and has to be governed by section 59 of the said Act. In case of Kameshwar Singh Darbhanga Sanskrit University 1965 Statutes framed under 1976 Act, clearly saved therein, itself postulates prior approval of the University to any appointment made in the affiliated College. In that view of the matter, if the University had issued certain guidelines by circular dated 2.11.2002 (Annexure-1) laying down as follows:- 1- ifjfu;ekuqlkj fu;qfDr ds vuqeksnu fo0 fo0 ls izkfIr ds ckn gh ;ksxnku Lohd`r dh tk;A 2- fdlh Hkh in esa vkj{k.k fu;e] fu/kkZfjr ;ksX;rk rFkk foKkiu esa folaxfr;ksa dh vuns[kh u dh tk;A 3- lkFk gh vius vius egkfo|ky; esa ukekafdr fu;fer Nk=ksa dh la[;k dh lwpuk fo0 fo0 dks Hksth tk;A 4- ckn esa lekns'k ds ckotwn fjDr inksa dh jkf'k dh dVkSrh jkT; ljdkj }kjk dj yh tkrh gSA 5- fo'ofo|ky; ds vuqefr ds fcuk f'k{kdksa dh fu;qfDr ugha djsaA the same cannot be interfered with on the ground of being violative of the following provisions under section 2(9) and (10) of the College Service Commission Act: "9. The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefore. the recommendation shall be valid for one year from the date of the recommendation by the Commission. 10. In making any such appointment the Governing Body of the College shall, within three months from the date of the receipt of the recommendation under 5 sub-section(9), make its selection out of the names recommended by the Commission, and in no case shall Governing Body appoint a person who is not recommended by the Commission." inasmuch as, the College Service Commission Act only authorizes the Commission to make its recommendation of the two candidates in order of merit on which decision for appointment has to be taken by the Governing Body of the affiliated College. It is only at this stage the role of the Governing Body begins, which on the receipt of recommendation of the College Service Commission has to make selection and appointment before sending the same for approval of the University. The validity of the period of one year of such recommendation of the Commission in terms of section 2(9) and (10) of the College Service Commission Act and the requirement of taking a decision on such recommendation by the Governing Body within a period of three months are sufficient safeguard for every candidates who is recommended by the Commission eliminating the possibility of delay in approving the appointment made by the Governing Body. In the present case whatever had been haunting in the mind of the writ petitioners on the date of filing their writ petitions on 25.9.2003 or 30.9.2003 in no way has remained relevant in view of the subsequent events. Such subsequent events narrated in the supplementary affidavit filed today, about which counsel for the University cannot make any comments in view of service of its copy on him only today. makes it clear that the Governing Body 6 and the College has chosen to appoint the petitioners only in the year 2006. This Court is however not going to make any comment on validity of such appointment of the petitioners, inasmuch as, the life of the recommendation of the Commission was only for a period of one year which had expired on 10.10.2003 and therefore either contents of letter dated 18.7.2003 (Annexure-8) of the Secretary to the Governing Body informing the Registrar of the University with regard to appointment of two petitioners and one another person is correct or the contents of the subsequent order dated 16.1.2006 (Annexure-10) is correct. Both of them however can not be correct. In view of the fact that the petitioner Devendra Kumar Mishra has himself accepted that he had joined the post of Lecturer pursuant to the said appointment letter dated 16.1.2006 and 17.1.2006 vide Annexures 10 and 10/A inasmuch as the petitioner had thereafter kept on reiterating in his subsequent representations dated 25.2.2006 (Annexure 11) also supported in the letter of the Incharge Principal (Annexure-13) and finally in his representation dated 15.3.2007 that he had joined the post of Lecturer only on 17.1.2006, this Court has to hold that the earlier appointment as claimed by the petitioner vide Annexure-8 dated 18.7.2003 was actually never made. When this aspect becomes clear, the only question which now arises for determination is as to whether the appointment made on 17.3.2006 can be said to be with the approval of the University or without approval of the 7 University?. As noted above, statutes of the University very clearly lays down that prior approval of any appointment to be made in the affiliated College of the Sanskrit University is necessary. It has to be noted that this special provision of the statutes is only applicable in the case of Sanskrit University, inasmuch as, in other affiliated Colleges there is no fiduciary relationship as is prevailing since long in the Sanskrit University where the teaching or non-teaching employees of affiliated colleges within the sanctioned strength are entitled for payment of salary alike the constituent colleges. The Statutes of the Kameshwar Singh Darbhanga Sanskrit University framed in the year 1965 had specifically provided for prior approval. If the Governing Body of the College therefore had made appointment of the petitioners on 16.1.2006. On the recommendation of the College Service Commission dated 10.10.2002, the University had to consider the same and in course of such consideration it had a right to also make every query as was sought to be made by its letter dated 24.2.2007 written in response of the letter of the Governing Body dated 25.2.2006. From the said query it becomes clear that the University had wanted to ascertain observance of the roaster as also availability of the first post and the second post of lecturer. Such query cannot be said to be unnecessary or uncalled for because the University has to ultimately arrange funds for salary by submitting the budget to the State Government and obtaining 8 funds which can be done only when the University itself is satisfied about the existence of posts. In that view of the matter, this Court would not find any infirmity in the order of the University as contained in Annexure-14 in granting approval of services of the petitioner on 14.3.2007. The only other question would be now as to whether such appointment of the petitioner would date back from the date the Governing body had made such appointment or would be only prospective in nature as is sought to be conveyed in Annexure-14. Normally, such order would not make any difference as with regard to continuance in service, inasmuch as, he has been shown to be appointed by the Governing Body on 16.1.2006, whereafter he has joined on 17.1.2006, but then apprehension of the petitioner as sought to be expanded by his counsel is that the same would be adversely affecting the interest of the petitioner in getting payment of their salary, inasmuch as, by a subsequent order dated 26.7.2007 fund has been sought to be requisitioned by the University from the State Government only w.e.f. 15.3.2007. In that view of the matter, this Court would direct the Vice Chancellor of the University to decide that if ultimately approval of the proposal of Governing Body for appointment of the petitioner has been accorded by the University would it not date back at least to the date the Governing Body had made such appointment of the petitioner i.e, on 16.1.2006. It is made clear 9 that if appointment of the petitioner is approved w.e.f. 16.1.2006 by the University and if in the budgetary provision, funds for the College in question including the posts of the petitioners has also been received from 16.1.2006, its payment will be made to the petitioner, but if such fund from the State Government was not received by the University for period in question. Such payment will be made only with effect from the date the State Government will release the fund for the post held by the petitioners in the College. The issue as with regard to petitioner’s substantial right for salary in the affiliated College having been covered by their appointment letter the grant of funds released by the Government through the University would not in any way adversely affect the University itself unless the University has received the fund from the State Government. It is not the case of the petitioner that the Commission had advertised the post by saying that it will be a post for which payment will be made by the University. It is the working arrangement made by the government by way of grant of funds for payment of salary to the teachers of the college which are affiliated to the University and if for such purpose funds have been made available then alone liability for payment of salary can be imposed upon the University. In that view of the matter, the matter is remitted back to the University only to the limited extent as with regard to examining the liability for payment of salary of the petitioner from 10 17.1.2006 onwards. Such decision may be taken by the University within a period of six months from the date of receipt/production of a copy of this order and if claim of the petitioner is rejected by the University, the authorities will be required to give reasons for the same. With the aforementioned observations and directions both the applications are disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)