IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4332 of 2005 Mahesh Dutta Singh, son of Late Nand Kishore Singh, resident of Kshtriya Bhawan, Civil Lines, Buxar, at present Reader and Head of Department in Physics, Pranab Chatterjee College, Itarhi Road, Buxar. ---------------------------------------------------------------------------------------------------------- Petitioner Versus (1) The Veer Kunwar Singh University, Arrah through its Registrar. (2) The Vice Chancellor, Veer Kunwar Singh University, Arrah. (3) The Bihar College Service Commission, Patna through its Secretary. (4) The Governing Body, Pranab Chatterjee College, Itarhi Road, Buxar through its Secretary. (5) The Professor-in-Charge, Pranab Chatterjee College. Itarhi Road, Buxar. ------------------------------------------------------------------------------------------------------ Respondents For the petitioner :- Mr. Abhay Singh, Sr. Advocate Mr. Manoj Priyadarshi, Advocate For Res. Nos. 1 & 2 :- Mr. Ajay Bihari Sinha, Advocate For Governing Body Res. Nos. 4 & 5 :- Mr. Bibhuti Prasad Pandey, Sr. Advocate Mr. Sanjeev Kumar Mishra, Advocate Mr. Samir Kumar Sinha, Advocate ********* 10 18.2.2011 The petitioner has filed the present writ petition seeking a direction for regularization of his service as a lecturer in the Department of Physics in Pranab Chatterjee College at Buxar. The petitioner was appointed by the Governing Body on ad hoc basis on 8.1.1988. By Annexure 3 on 18.1.2000 the Bihar College Service Commission (hereinafter referred to as „the Commission‟) recommended the name of the petitioner for appointment as lecturer in Physics subject to the following rider “Basharte vartaman satra main sambandhan 2 prapt ho”, meaning thereby that the college concerned should have the affiliation of Veer Kunwar Singh University, Arrah, before the petitioner‟s service should be deemed to be regularized. The petitioner‟s joining after issuance of the recommendation of the Commission was accepted by the then Principal Incharge of Pranab Chatterjee College (hereinafter referred to as „the College‟). Despite the recommendation of the Commission the petitioner‟s service was not regularized by the governing body of „the college‟ which resulted in the complaint being filed by the petitioner before several authorities including the University. The Principal Incharge of the college addressed a letter to the Registrar of Veer Kunwar Singh University in which an explanation has been given by the college regarding the matter of regularization of petitioner‟s service. In the said letter the college has explained that the affiliation granted to the science faculty of the college expired in June, 1995 whereas the recommendation of the Commission regarding the case of the petitioner was received on 18.1.2000, which 3 was subject to the condition that the college in question had the required affiliation from the University. Since the college does not have the affiliation with Veer Kunwar Singh University, the college decided after taking legal opinion of the senior counsel not to give effect to the recommendation made by the Commission as it may create a problem for the college and the petitioner in future. The petitioner being aggrieved by the action of the Governing Body of the college moved the University which led to an enquiry, the report of which is contained in Annexures 16 and 17. In the mean time the State Government granted permission for affiliation to the present college vide memo no. 3047, dated 21.7.2006. The said letter would indicate that for the science faculty affiliation was granted from retrospective effect from the year 1996-97. Counsel appearing on behalf of the petitioner submits that the hurdle in regularizing the service of the petitioner as a lecturer in the college concerned were removed by the aforesaid letter of the State 4 Government directing the University to grant affiliation to the college in question. The observations in the report of the three men committee would indicate that the petitioner ought to have been regularized in service in view of the fact that the college in question had been granted retrospective affiliation and due to the fact that the petitioner had been working continuously in the said college. The report further indicates that several persons, namely, Sri Arun Mohan Prasad, Sri Kamleshwar Pathak, Sri Subhash Kumar Singh and Sri Parmatma Pathak had been regularized from the date of their initial appointment although the recommendation from the Commission regarding the aforesaid persons were received at a point of time when the college was not affiliated. It has been observed that the Governing body has therefore adopted two standard for the purpose of regularizing the employees under the college. The report also indicates that the Principal Incharge does not or did not have the qualification of being appointed as Principal Incharge having only 48% marks whereas the required 5 qualification is at least 55% marks in the M.A. examination. It appears that subsequent to the filing of this writ petition the petitioner has been receiving his salary on the post of lecturer in the Department of Physics. It is submitted that the petitioner is the senior most person in the college and as such he ought to have been regularized in service. Strenuous arguments have been made on behalf of the respondent Governing Body of the college. It has been submitted that the writ of the petitioner would not be maintainable in view of the fact that at the time when the writ was filed, the Governing Body could not have regularized the services of the petitioner as the college was not granted affiliation and as such no direction could have been given in favour of the petitioner by the writ Court. The advertisement by the College Service Commission was published in 1990 and the petitioner‟s name was recommended on 18.1.2000. It is submitted that Annexure-3 would indicate that the College Service Commission recommended the name of the 6 petitioner subject to the fact that the college in question had the affiliation. It has also been argued that the recommendation as per the provisions of 2(9) of The Bihar College Service Commission Act, 1976 would come in the way of appointment of the petitioner. The provisions of sub-section (9) of Section 2 reads as follows: “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 thereof. The recommendation shall be valid for one year from the date of the recommendation by the Commission.” It is submitted that since the life of the panel expired, the petitioner cannot claim regularization by virtue of the said recommendation in the year 2005 when the writ application had been filed. It has been emphasized that at the time when the writ application was filed, the only prayer that could be made by the petitioner was that the college should send the name of the petitioner for fresh recommendation or at the most the petitioner could have prayed 7 for expediting the process of appointment. A writ of mandamus could not have been issued in the year 2000 as the college in question was a private college and did not have the required affiliation from the University in question. Apart from which it has been argued that the recommendation made by the College Service Commission was in the year 2000, the petitioner thus ought to be thrown out Court on the ground of delay and latches as he did not care to move this Court in the year 2000 for implementation of the recommendation of the Commission. It has, therefore, been submitted that the petitioner cannot be granted the relief prayed for in the Interlocutory Application, wherein apart from other prayers, one of them is that the respondent no. 4 and the University ought to consider the appointment of the petitioner to the post of lecturer in Physics in the college in pursuance to the recommendation made by the Bihar College Service Commission vide its letter no. 1542 dated 8.1.2000. This Court while considering the arguments and counter arguments of the 8 parties aforesaid, notices that after the advertisement issued by the Bihar College Service Commission and after having being selected, the petitioner joined the post of Lecturer which was accepted by the college and subsequently during the pendency of this writ application, the petitioner has been granted the pay of a lecturer. I will first deal with the last submission made on behalf the respondent Governing Body, that the writ application has been filed after delay and as such the writ should be dismissed on this ground alone. On perusal of the pleadings in the writ application, it would appear that after the petitioner was recommended by the College Service Commission, the petitioner filed several representations before the Governing Body and before the University raising his grievances that the Governing Body of the college was not recognizing the services of the petitioner as a lecturer. On the direction of the University and the Chancellor, an enquiry was set up, the result of which is Annexures 16 and 17 which was submitted in the year 2007. It has been 9 stated that between the period 2000 to 2005 when the petitioner filed the writ application, he has been pursuing the matter before several authorities and, therefore, the submission of the respondents that the writ application should be dismissed on the ground of delay and latches is not maintainable. While taking into consideration the plea of delay, this Court as well as the Supreme Court has held that the delay should be judged on the facts of each case. The facts reveal that the petitioner had been pursuing his claim diligently, before various authorities and, therefore, it cannot be said that he was not pursuing his legal remedies and that the writ application should be dismissed on the ground of delay and latches. I, therefore, find that the objection of the respondent Governing Body is not sustainable. After the filing of the writ application, the State Government in the Higher Education Department granted affiliation to the college recognizing several faculties including Science faculty from the year 1996-97 vide its memo no. 1347 10 dated 21st of July, 2006. After the grant of affiliation to the college the petitioner brought this document on record, in order to support the prayer in the writ application that since the college had now been granted affiliation there was no hurdle left in his regularization. It is submitted that the grant of affiliation dates back retrospectively to 1996-97 and, therefore, the recommendation of the petitioner in the year 2000 would be valid. The objection that this fact could not be taken into consideration is not tenable, as this Court can take cognizance of the facts which accrue during the pendency of the writ application. In any event the Court has the power to mould the reliefs in accordance and in furtherance of the prayer made in the writ application in accordance with law. Similarly, the objection that the writ application was not maintainable is also not justified, as this Court could have directed the Higher Education Department to take a decision regarding the matter granting of affiliation to the College in question and, therefore, and also directed that the 11 Managing Committee should take into account the recommendation of Commission, regarding the appointment of the petitioner to the post of Lecturer in Physics, as it had done with respect to other Lecturers, as mentioned earlier. Learned counsel for the petitioner submitted in this context that the college is now estopped from raising the question that the petitioner would not be entitled for consideration for being regularized in the college concerned, on the ground that the college was not granted affiliation on the date on which the recommendation was made. The college has allowed the petitioner to work and has been paying the salary of the petitioner. By such „Acts‟, it is said that the college cannot now raise the objection with respect to regularization of the petitioner in the college. Referring to a decision of Indira Bai Vs. Nand Kishore, reported in AIR 1991 Supreme court 1055, counsel for the petitioner submits that “estopple is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a 12 check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture although accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetuated.” In other words, it is said that estoppel and equity are used for the purposes of doing complete justice between parties, in furtherance of the law. Equity and law must go hand and hand and if by virtue and by taking advantage of a provision of law but acting contrary to it, a defence is raised that the law is not in favour of the incumbent it would amount to perpetuating spurious conduct. In the present case the college by its conduct had in essence has accepted the petitioner‟s services as a lecturer in Physics and now purports to take advantage of the provisions of law, wherein it has been stated that the life of the panel has expired and as such the petitioner cannot be regularized although he has been working in the college and has been found otherwise fit. Counsel for the respondents relied 13 on a judgment of the State of Bihar Vs. Amrendra Kumar Mishra reported in 2006(4) PLJR 182(SC). The facts of the case were that 225 posts of Stock Assistants were advertised in the Animal Husbandry Department. The incumbent succeeded along with other candidates and his name was recommended by the Commission. Subsequently he was appointed on 21.2.1992 and was asked to join within 15 days. He failed to join. After two years on 20.7.1994 he requested the Director, Animal Husbandry Department to issue him a fresh appointment letter on the ground that he had not received the earlier appointment letter. The High Court allowed the writ of the petitioner, whereas the Supreme Court set it aside. The Supreme Court held that the petitioner should not have been allowed to join the said post on the basis of sympathy. The facts of the present case are quite different. The petitioner‟s name was recommended. He was permitted to join in the services and was also paid his salary. On consideration of the fact that the petitioner was duly qualified and was recommended by the 14 Commission in 2000. The Veer Kunwar Singh University granted affiliation retrospectively to the College. The petitioner joined and has been teaching as a Lecturer in the said College since 1988. Other similarly situated persons mentioned in this order were regularized, although at the time of their regularization the affiliation to the College was wanting. In fact the enquiry report of 3 men Committee goes so far as to indicate the Incharge Principal, was not duly qualified to hold the post. All these facts coupled with the fact that the College in question is duly affiliated leads this Court to conclude that the petitioner is entitled for consideration for regularization to the post of Lecturer in Physics. I, therefore, direct that the Incharge Principal/Principal/Managing Committee of the College should send the name of the petitioner to the Commission within a period of two months. The Bihar Public Service Commission should take a decision taking into account that the petitioner was earlier recommended by the 15 Commission vide Annexure-5 (letter no. 1542 dated 18.1.2000) within a period of three months on receipt of the recommendation. This Court also takes into account that the petitioner has worked as Lecturer in the College since 1988 i.e. for 23 years, and as such this fact is also important for the purpose of considering the case of the petitioner. The petitioner would be at liberty to bring the facts to the notice of the authorities concerned within a period of eight weeks on receipt of a copy of this order. This writ application is allowed for the reasons mentioned and to the extent indicated aforesaid. Haque/Sanjay/A.F.R. ( Sheema Ali Khan, J.)