IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.875 of 2008 ------ 1. The Chancellor,Lalit Narayan Mithila University, Raj Bhawan, Patna. 2. The Vice Chancellor, Lalit Narayan Mithila University, Dharbhanga Kameshwar Nagar, Darbhanga. 3. The Registrar, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. Respondents—Appellants Versus 1. DR.Girindra Nath Jha son of Sri Chandra Kant Jha resident of Village & PO-Bakhri Bazar, District- Begusarai at present working as Lecturer in Sanskrit in D.B.K.N. College, Narahan, Samastipur 2. Dr. Rathindra Narayan Jha son of Late Shivendra Narayan Jha, resident of Village- Kaina, P.O. Lilhaul, District –Samastipur at present working as Lecturer in English in D.B.K.N. College, Narahan, Samastipur. 3. Dr. Ramesh Singh son of Late Dwanda Bahadur Singh resident of Mohalla Sri Krishna Puri, District Samastipur at present working as Lecturer in Psychology in D.B.K.N.College, Narahan Samastipur 4. Nandan Kumar Mishra son of Late Upendra Mishra resident of Village, P.O.- Mehdasahpur, District-Begusarai at present working as Lecturer in Mathematics in D.B.K.N.College, Narahan, Samastipur Petitioners- Respondents 5. The Principal, D.B.K.N.College, Narahan, Samastipur. Respondent- Proforma Respondent ----------- For the appellants : Mr.Shivendra Kishore, Advocate For the respondents : None ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 12th November, 2008 - 2 - The appeal suffers from delay of 64 days for which an application (I.A. No. 6599 of 2008) for condination of delay has been made. 2. Even if we condone the delay in filing the appeal, we find that the appeal does not deserve to be admitted. 3. In the case of Dr. Shiv Narain Yadav Vs. state of Bihar and ors. 2001 (2) PLJR 817, the Division Bench considered the provisions contained in Bihar State Universities Act, 1976, Bihar College Service Commission Act, 1976 and Bihar Inter-University Board Act, 1981 and also relevant statutes issued by the Governor. In paragraphs 15 and 16 of the report, the Division bench held thus: ―15. A perusal of the provisions contained under the Act, it is clear that when the Act was enacted the appointment of teachers and officers in the University was to be made by the Bihar Public Service Commission and the appointment of such teacher for whom no separate provision was made in the Act, was to be made on the recommendation the Bihar University Service Commission. In 1976, the Commission Act came which contained a specific provision that only mode of appointment of teachers of the affiliated colleges is on the basis of the recommendation of the Commission. The Act was also amended in 1982 and 57A was brought on the statute book containing similar provision as contained in the Commission Act that the appointment has to be made on the basis of the recommendation of the Commission. 16. Thus, according to the statutory provision contained under Section 57A of the Act and the provision of the Commission Act, the only mode of appointment to the teachers of affiliated college is on the basis of the recommendation by the Commission. The question is as to whether the said provision can be amended or modified by the statute issued or framed under the provisions of the Board Act. The law is well settled that there is no requirement that there should be statutory rule for creating a post and making appointment on the said post. The executive power of the State is co-extensive with the legislative power and under Article 162 of the Constitution, the State can create and fill up the civil posts by issuing - 3 - executive instruction provided they are not inconsistent with the requirements of Articles 14 and 16 of the Constitution, but if the Act or Rules have been made containing a provision with regard to mode of appointment then that has to be made in accordance with that and the Executive power can be exercised only to supplement the said provision and not to supplant the same. If a process of recruitment has been provided, then regularisation is not permissible by ignoring the said procedure unless it is shown that the provision regarding regularisation has a support of law. In other words, the statutory provision with regard to mode of appointment cannot be given go bye on the basis of provision which is neither permissible under the Act in question nor has the statutory sanction in the sense of competency in the authority concerned to issue such instruction or statute. The question for consideration is as to whether the statute providing mode of regularisation for temporary teachers has a sanction in the law in the sense that the State Government with the approval of the Chancellor has power to make such statute under Section 5(2) of the Board Act. The object of the Board Act as stated above, is only to bring a coordination among the different Universities. Section 5 of the Board Act prescribes function of the Board and states that with regard to matters enumerated in sub-section (1), it can advice the Chancellor and the State Government and sub-section (2) provides that nothwithstanding any provision contained under the Act in question or other Acts dealing with the Universities, the State Government on the advice of the Board with regard to matters enumerated in sub-section (1) will make recommendation to the Chancellor and the chancellor thereafter issue direction to the University which will be binding on it. Even if broader meaning is given to the provisions enumerated in sub-section(1) of Section 5 of the Board Act, it does not authorize the Board to advise with regard to regularisation of services of temporary teachers. Thus, the said provisions do not authorize the State Government and the Chancellor after consulting the Board to issue directions contrary to the directions contained in Section 57A of the Act or the Commission Act for the simple reason that the State Government and the Chancellor can issue direction only with regard to matters enumerated under Section 5(1) of the Act. The provisions with regard to mode of appointment of lecturers is not covered by any of the clauses of section 5(1) of the Board Act. In other words, the State Government or the Chancellor has no power to issue any direction providing a mode of appointment of a lecturer contrary to the provision contained under Section 57A of the Act and the provisions of the Commission Act. - 4 - Providing a mode of regularization of ad hoc teachers contrary to the statutory provision contained in these two Acts cannot be said to be improvement and excellence in teaching standard of the University which is one of the functions of the Board with regard to which direction can be issued by the Chancellor or the State Government. Thus, I am of the view that the statute in question cannot be given effect to by circumventing the statutory provision specifically with regard to appointment of teachers in the University. As such even if respondent no. 2 (Madan Mandal) fulfils the criteria as laid down in the aforesaid statute, he is not entitled to regularization of his service especially when he had also appeared before the Commission, but was not selected. As there is only one mode of appointment to the teachers in the university i.e. on the basis of the recommendation of the Commission, and the names of the appellants and other have been recommended, the Governing Body is directed to consider their cases and make appointment within a period of three months.‖ 4. However, despite the findings recorded in paragraphs 15 and 16 as noticed above, the Division Bench clarified that regularization of services of the teachers of the universities, if already made, on the basis of subject statute, such regularization shall not be reviewed or recalled but hereinafter the subject statute or any other statute of the same nature issued under section 5 of the Bihar Inter- University Board Act, 1981 shall not be given effect to. 5. The decision in the case of Dr. Shiv Narain Yadav was given by the Division Bench on 2nd March, 2001. It transpires that claim of regularization of all the original writ petitioners ( present respondent nos. 1 to 4) was considered along with few others and on the basis of the recommendation of the absorption committee, constituted by the Chancellor, vide order dated 3rd February, 1998, the Chancellor ordered regularization of the petitioners who were - 5 - working as temporary lecturers in different Colleges/Departments under Lalit Narain Mithila University, Darbhanga. However, it appears that vide communication dated 17th March, 1998 from the Chancellor‘s Secretariat to the Vice Chancellor, Lalit Narain Mithila University, Darbhanga, the decision taken on 3rd February, 1998 was put in abeyance. It is submitted by the counsel for the appellants that in view thereof and the fact that thereafter the matter was never considered by the absorption committee, it cannot be held that the regularization of respondent nos. 1 to 4 attained finality before the decision by the Division Bench in the case of Dr. Shiv Narain Yadav. 6. The communication dated 17th March, 1998 has to be read in the context it was issued. The said context is that one of the lecturers namely Sri R.S. Thakur ‗Matwala‘, was wrongly recommended for absorption when his services had already been terminated by the university vide notification dated 29th October, 1996. Thus, by the communication dated 17th March, 1998, the Chancellor‘s Secretariat desired cross – checking to be made with regard to all 28 lecturers mentioned in the order dated 3rd February, 1998. That respondent nos. 1 to 4 had been working as temporary lecturers on 3rd February, 1998 and that there was nothing adverse against them on that date, is not in dispute. 7. Seen thus, we find that consideration of the matter by the Single Judge does not suffer from any legal infirmity. Letters Patent Appeal does not deserve to be admitted. It is dismissed in limine. - 6 - 8. This disposes of the application for condonation of delay (I.A. No. 6599 of 2008). Since the L.P.A. has been dismissed in limine, application for interim relief does not survive. Consequently, I.A. No. 6600 of 2008 also stands dismissed. R.M. Lodha, CJ Kishore K. Mandal, J. Anil