Letters Patent Appeal No.907 OF 2000 -------- Against judgment and order dated 10th May, 2000 passed by a learned single Judge of this Court in C.W.J.C.No.5514 of 1994. -------- SMT.RENU SINHA-------------------------Appellant Versus MISS KUMUD & ORS-----------------------Respondents With LPA No.921 of 2000 -------- SMT.PRABHA SAHAY-----------------------Appellant Versus MISS KUMUD & ORS-----------------------Respondents With LPA No.974 of 2000 -------- STATE OF BIHAR & ANR-------------------Appellant Versus MISS KUMUD & ORS-----------------------Respondent -------- For the Appellant in L.P.A.No.907/2000 & 921/2000 : Mr. V.K. Kanth & Namrata Mishra,Adv. For Respondent No. 1 : Mr.Manik Vedsen, & Mr.Lakmesh Marvind Adv. For the Appellant in L.P.A. No. 974/2000 : None. For Respondent No. 1 : Mr. S.V.Mandal,Adv. Respondent No.6 & 7 : Mr. V.K. Kanth & Namrata Mishra,Adv. R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & Jayanandan Singh, JJ: These three appeals are against a common judgment and order passed by a learned Single Judge in a writ petition filed by the writ-petitioner respondent in these appeals - 2 - and accordingly these appeals are being dealt with by this common judgment and order. 2. The petitioner-respondent approached this Court in C.W.J.C. No. 6001 of 1987 whereby and under she complained that although she has been appointed by the college in November, 1985 to a sanctioned post she has not yet been given the benefits of the said appointment. She contended that in any event and, if necessary, she should be regularized. The said writ petition was disposed of by this Court by an order dated 4th April, 1994, whereby and under the Secretary, Higher Education Department of the State of Bihar was directed to consider the claim of the petitioner respondent and for that purpose to hear other teachers of the college, who were engaged to impart education in the same branch. In terms of said order, the Secretary took a decision on 14th June, 1994 and thereby held that the other two appellants in the abovementioned appeals were appointed prior to the appointment accorded to the petitioner-respondent and those appellants were appointed in the two posts of teacher as were sanctioned by the state. - 3 - 3. Being aggrieved thereby, writ- petitioner respondent filed the second writ petition, which having been dealt with in the manner as recorded in the judgment and order under appeal, the present appeals have been filed. 4. In the first writ petition as well as in the second writ petition the case of the petitioner-respondent was that the college, an affiliated college, obtained sanction of the Government on 4th July, 1985 to appoint two teachers to teach Ancient Indian History and to fill-up the said two posts, the college published an advertisement on 22nd July, 1985 inviting applications not only from all and sundry but also from their existing teachers. The same was responded by the petitioner- respondent, whereupon the selection committee recommended her and another person for being appointed; and thereupon she was appointed as a teacher by the said college to teach Ancient Indian History. It was the contention of the petitioner-respondent that despite such appointment she did not get the benefits thereof. - 4 - 5. The Secretary found as a fact, which is not in dispute, that the college in question, without the affiliation of the University in relation to Ancient Indian History, opened a branch for the purpose of teaching Ancient Indian History and to teach Ancient Indian History in that newly opened branch, the college engaged the appellants in the two of the aforementioned appeals sometimes in 1981. Thereupon on 13th October, 1984 the college obtained affiliation i.e. privilege, of the University, in relation to its branch opened for the purpose of teaching Ancient Indian History. Subsequent thereto on 22nd August, 1985, the permission accorded by the State Government to the college to engage two teachers to teach Ancient Indian History was communicated to the college by the university. In other words, only on 22nd August, 1985 the college came to learn that it is entitle to engage two teachers to teach Ancient Indian History. There is no dispute that on 22nd July 1985 an advertisement was published purporting to be on behalf of the college for the purpose of appointing teachers to teach, amongst others, - 5 - Ancient Indian History in the college. The advertisement mentioned that the persons who are presently teaching in the college are also eligible to respond the same. This advertisement was responded by the petitioner-respondent; whereas the same was not responded by the appellants in the two of the aforementioned appeals. The advertisement did not mention how many vacancies are to be filled up. It did not indicate that in the matter of filling up of vacancies reservation policy of the State would be followed. Thereupon a selection committee purported to recommend the names of two persons for being appointed as teachers to teach Ancient Indian History; one of them was the petitioner- respondent. Thereupon an appointment letter was issued in favour of the petitioner respondent purporting to be by the college. 6. It had throughout been and still is the case of the petitioner respondent that the said advertisement was published to fill up the said two sanctioned posts, petitioner-respondent has alone been appointed by the college in one of those two sanctioned posts and accordingly, the petitioner-respondent was and is entitle to - 6 - the full benefits thereof. 7. The Secretary to the State found that whereas the advertisement responded by the petitioner-respondent was published on 22nd July, 1985, the sanction of the Government, as was informed to the University by its letter dated 4th July, 1985, was communicated or forwarded by the University to the college by a letter dated 22nd August, 1985 which must have been received by the college subsequent to 22nd August,1985 and accordingly it can not be contended that the advertisement dated 22nd July, 1985 was published for the purpose of filling up those two sanctioned posts. The contention of the petitioner respondent that a copy of letter of the state dated 4th July, 1985 sanctioning the said two posts was sent to the college was ignored. The Secretary in his order dated 14th June, 1994 held that those two sanctioned posts have been supplied by the appellants in the aforementioned two appeals. 8. Because of these findings rendered by the Secretary, the petitioner respondent in the second writ petition, which has been disposed of by the order under appeal, made the - 7 - appellants in the aforementioned two appeals as respondents no. 6 and 7; whereas they were not impleaded as parties to the first writ petition of the petitioner–respondent, registered as C.W.J.C. No. 6001 of 1987. 9. The learned Single Judge, who passed the order under appeal, felt that the appointment of the petitioner–respondent was a valid appointment and appointments of the appellants in the above two appeals were invalid appointments and accordingly those appellants did not supply the vacancies in the said two sanctioned posts and one of those could only be supplied by the petitioner-respondent. 10. In the writ petition appointments of the appellants in the aforementioned two appeals were not challenged. It was, however, contended that those two vacancies could not be supplied by the said appellants. We feel, before going into question whether those two vacancies could be supplied by the said appellants, it was obligatory on the part of the Court to ascertain whether the petitioner-respondent was appointed and if so, by reason of such appointment what right she acquired. - 8 - 11. The Bihar State University Act, 1976, with which we are concerned in the present litigation, applies to Universities established under the said Act, constituent colleges as prescribed in the said Act, namely colleges which are part of the University, and affiliated colleges. The provisions of the said Act have no application to a non-affiliated college. Undisputedly the college in question got affiliation on 13th October, 1984 in relation to Ancient Indian History. The provisions of the said Act became applicable to the college in relation to Ancient Indian History only from 13th October, 1984. The Act does not say that appointments given before affiliation to teach in non-affiliated branch would automatically come to an end upon obtaining affiliation. The moment affiliation had been granted, as provided in the Act, the college became dis- entitle to engage or continue to engage a teacher without the permission of the State for a period in excess of six months. The Act provides that an affiliated college can appoint only such a person to teach, who has been recommended by the Bihar College Service - 9 - Commission. The legislature has made the Bihar College Service Commission Act, 1976, whereby and under it has provided, amongst others, that appointments, dismissals, removals, etc., of teachers of affiliated colleges can only be made on the recommendation of the Commission. It has provided in the said Act that in no case an affiliated college can appoint a person to teach, who has not been recommended by the Commission. It has also provide in the said Act that such a recommendation would not be necessary to engage a teacher, who is not expected to continue to teach for more than six months, and when such engagement can not be delayed without detriment of the interest of the college. 12. In view of application of the provisions of the said Acts with effect from 13th October, 1984 in relation to its Ancient Indian History branch, the college could continue to engage appellants in the aforementioned appeals to teach Ancient Indian History only on the recommendation of the Commission. The fact remains that the college applied for and obtained such recommendation, - 10 - which had been extended from time to time. Subsequent thereto, as aforesaid, on 22nd August, 1985, the college was informed by the University that the State Government, vide its letter dated 4th July, 1985, has accorded permission to the college to appoint two teachers to teach Ancient Indian History on regular basis. The said letter of the Government made it absolutely clear that, while engaging two such teachers, the college would be required to follow the reservation policy of the State. The commission rightly or wrongly, without following such reservation policy, made recommendation in favour of both the appellants in the abovementioned two appeals sometimes in 1986 for being permanently appointed in the said two sanctioned posts. As against that while the college is said to have advertised on 22nd July, 1985, i.e. after its affiliation, and thereupon said to have selected and appointed the petitioner-respondent, but did not obtain any recommendation from the College Service Commission in regard thereto. In the circumstances, one and the only conclusion would be that in view of absence of recommendation by - 11 - the College Service Commission, the appointment of the petitioner-respondent was useless, the same did not earn any benefit and the writ court, accordingly, had no power to make available any benefit to the petitioner- respondent on the strength of such appointment. Section 57(A) of the Bihar State University Act, read with the provisions contained in the Bihar College Service Commission Act, debars affiliated colleges to appoint any person to teach without the recommendation of the College Service Commission. That being the situation, the petitioner respondent could not be accorded any relief as was prayed for by her in the writ petition. On the other hand the appellants in the above appeals may have had been wrongfully recommended for being appointed by the College Service Commission, but such action having not been challenged in an appropriate writ petition filed by making the College Service Commission a party, the Court had no jurisdiction to interfere with such recommendation and until such recommendation remained the benefits of such recommendation, as was made in favour of the appellants in the above appeals, could not - 12 - be taken away. 13. In those circumstances, we allow the appeal, set aside order under appeal and dismiss the writ petition. ( Barin Ghosh, J.) ( Jayanandan Singh, J.) Patna High Court Dated 1st July, 2008 Arvind/ N.A.F.R.