APPEAL FROM APPELLATE DECREE NO.260 OF 1996 *** Against the judgment and decree dated 27.07.1996 passed by Shri H.B.P. Sinha, Ist Additional District Judge, Buxar in Title Appeal No. 29 of 1990 confirming the judgment and decree dated 16.08.1990 passed by Shri A.K. Sharma, Ist Additional Munsif, Buxar in Title Suit No. 142 of 1972 (09 of 1987). . *** Udai Narain Rai son of late Ram Murat Rai, M.V. College, Buxar. ….Defendant No.3-Appellant no.3- Appellant. V e r s u s 1.Bharat Narain Mishra son of late Maharshi Khaki Baba, M.V. College, Buxar (Plaintiff-Respondent) - Respondent. 2.The Vice-Chancellor, Magadh University (Defendant No.4-Appellan No.1)- Respondent 3. The Principal, M.V. College, Buxar (Defendant No.2-Appellant No.2) - Respondent 4. Veer Kuwar Singh University, Arrah through its Registrar 5. The Vice-Chancellor, Veer Kuwar Singh University, Arrah - Respondents. For the appellant : M/s Sunil Kr. Singh, Sanjay Kr. Singh No.1 and Ajay Kr. Singh No.2, Advocates. For respondent no.1 : M/s M. Chatterjee and Shivendra Kishore, Advocates. For respondent no.2 : Mr. Mukesh Kr. Sinha, Advocate. For respondent no.3 : Mr. Ajay Kumar, Advocate. For respondent nos.4 & 5 : Mr. Vinay Kirti Singh, Advocate. P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN This second appeal has been filed by defendant no.3-appellant no.3-sole appellant against the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit No. 142 of 1972 (09/1987) filed by plaintiff-respondent-respondent no.1 for declaration that letter dated 20.09.1972 sent by defendant no.2 the Principal of M.V. College, Buxar on the basis of approval accorded by defendant no.4 the Vice-Chancellor of Magadh University in favour of defendant no.3 Sri Udai Narain Rai (appellant) was illegal, void and without jurisdiction and that the plaintiff being senior to defendant no.3 had a right of automatic nomination to the Governing Body in preference to defendant no.3 and also that approval accorded by the University to defendant no.3 was illegal, void and without jurisdiction and for directing defendant no.4 to accord 2 approval to the services of plaintiff and for restraining defendant nos.1 and 2 (Convener and Principal of the College) from convening any meeting of Governing Body of the College without the plaintiff as a teacher representative. 3. The defendants contested the claim of the plaintiff by filing their respective written statements whereafter on the basis of pleadings of the parties, the learned trial court framed the following issues: (i) Has the plaintiff got valid cause of action for the suit? (ii) Is the suit as framed maintainable? (iii) Is the suit barred by time? (iv) Is the suit barred by principle of res-judicata, waiver and acquiescence? (v) Is the plaintiff a permanent lecturer appointed by the Governing Body of the College? (vi) Is the appointment of defendant no.3 legal and valid? (vii) Is the plaintiff entitled to a decree as claimed for the approval of his service by defendant no.4 from due date in place of defendant no.3? (viii) To what other relief or reliefs, if any, the plaintiff is entitled? 4. On the basis of aforesaid issues, evidence were led and arguments were made by the parties whereafter the learned 1st Additional Munsif, Buxar vide judgment and decree dated 16.08.1990 decreed the suit on contest with cost after arriving at the following findings: (a) The plaintiff Bharat Naraian Mishra is a permanent lecturer appointed by the Governing Body of the College and accordingly, his appointment should be approved by defendant no.4 in place of defendant no.3 from 13.06.1968 i.e. from the date of his permanent appointment in the Hindi Department of the College. (b) The appointment of defendant no.3 Udai Narain Rai in place of plaintiff by the illegally constituted Ad-hoc Committee was quite illegal and invalid. (c) The plaintiff is entitled to a decree for approval of his service in place of defendant no.3 by the Vice-Chancellor from 13.06.1968 which is the date of his permanent appoint (d) There is no defect in the frame of the suit and the suit is maintainable. (e) The plaintiff is entitled for his due seniority, promotion and arrears of salary, etc. since 13.06.1968, which is the date of his permanent appointment, as he had clearly suffered great loss due to fault of defendants, which cannot be compensated now by any other means. 5. Against the aforesaid judgment and decree of the learned trial court, defendant nos.2, 3 and 4 filed Title Appeal No. 29 of 1990 and the learned court of appeal 3 below after considering the respective claims of the parties formulated only one point for deciding the appeal, which is as follows: (i) Whether the impugned judgment and decree passed by the learned court below is fit to be confirmed? 6. After considering the arguments of the parties on the said issue and after perusing the materials on record, the learned 1st Additional District Judge, Buxar dismissed the title appeal on contest with cost vide judgment and decree dated 27.07.1996 after arriving at the following findings: (a) Admittedly there was a vacancy of lecturer in permanent cadre in the Department of Hindi in M.V. College, Buxar for which the name of plaintiff and defendant no.3 were recommended by the University Service Commission. (b) The plaintiff was the only suitable candidate in view of the advertisement- Ext.3 (c) Admittedly no show-cause or even prior information was given to the President or Secretary or Members of the Governing Body before its resolution, which was in clear violation of the rules prescribed in the Statutes of the University. (d) It was the Governing Body who had a legal right to appoint a lecturer on the recommendation of the University Service Commission and not the Ad-hoc Committee, therefore, the appointment of defendant no.3 by the Ad-hoc Committee was illegal. (e) Admittedly the plaintiff was appointed by letter dated 13.06.1968 issued by the President of the Governing Body, which was later approved by the Governing Body and hence, the defect was removed. (f) The plaintiff continued to work as lecturer in the Hindi Department of the College after his appointment on 13.06.1968 on the recommendation of University Service Commission and his termination order passed by Ad- hoc Committee on 28.07.1968 (Ext.5) was never given effect to, which also shows that the Ad-hoc Committee was not effective. (g) The documents produced by the defendants were created during the pendency of the suit and, therefore, they are of no avail for the adjudication of the dispute in the suit. (h) The documents produced by the defendants themselves such Exts.S, T and U go to show that the plaintiff tried his best for approval of his appointment and service by the University but failed, hence, he had a good cause of action for the suit. 4 (i) At the time of appointment of plaintiff, the Governing Body was legally functioning and the Ad-hoc Committee constituted by the Syndicate was not functioning. (j) The plaintiff having preferential qualification as per the advertisements, was the only suitable candidate for the appointment, whereas defendant no.3 had no such preferential qualification. (k) Order of termination of the plaintiff passed by the Ad-hoc Committee was never acted upon and he through out worked in the College. (l) Appointment of plaintiff by the Governing Body was legal and proper and the appointment of defendant no.3 by illegally constituted Ad-hoc Committee was illegal. 7. Against the aforesaid judgments and decree of both the learned courts below only defendant no.3, who was appellant no.3 in the title appeal, filed the instant second appeal on 23.09.1996 and it was admitted on 27.03.1997 formulating the following substantial question of law: (i) Whether the judgment and decree of the learned lower appellate court is sustainable in law in view of section 57A of the Bihar State Universities Act and also in view of the decision of Full Bench of this court reported in 1988 B.L.J.R.- 1 (Rita Mishra and others Vs. Director, Primary Education Bihar)? 8. The aforesaid sole substantial question of law formulated in the instant second appeal is with respect to section 57A of the Bihar State Universities Act, 1976, sub- section 1 of which reads as follows: “Appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teachers of such Colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the Statutes: Provided that the Governing Bodies of the affiliated minority Colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teacher or take disciplinary action against them with the approval of the College Service Commission: Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed.” 9. The said substantial question of law also requires consideration of a decision of a Full Bench of this court in case of Rita Mishra and others Vs. Director, Primary Education Bihar, reported in 1988 B.L.J.R.-1 in which it has been held in paragraph 24 thereof that where the very letter of appointment is flagrantly violative of the 5 statutory procedures prescribed for selection and appointment, the same would be illegal and there being no valid appointment in the eye of law, no consequential right to salary stricto sensu would arise. It was also held that a person holding a post de facto on the basis of any illegal letter of appointment, will not be entitled to any salary. 10. The claim of the appellant (defendant no.3) is that in the year 1968 the college concerned sent requisition to the University Service Commission for recommending the names for appointment of lecturer in Hindi and in the meantime vide order dated 31.05.1968 the University suspended the Governing Body of the College and appointed Ad- hoc Committee, which started functioning from 01.06.1968. It is also claimed that on the requisition of the College, the University Service Commission on 11.06.1968 recommended two names as against one post of lecturer in Hindi in the College, in which defendant no.3 was placed at Serial No.1, whereas the plaintiff was placed at Serial No.2 and in view of the said recommendation the Ad-hoc Committee duly appointed defendant no.3 on 28.07.1968 on the sole vacant post of lecturer on permanent basis as he was the first choice of the Commission and also terminated the temporary service of plaintiff who was working since 1966 on purely temporary basis. It was also claimed on behalf of the appellant that in August, 1968 the appointment of appellant by the College was sent for approval to the University by the Managing Committee and in the meantime the plaintiff challenged the order of the Ad-hoc Committee dated 28.07.1968 regarding appointment of defendant no.3 and termination of the plaintiff vide C.W.J.C. No. 614 of 1968, which was subsequently dismissed by this court as withdrawn on 13.08.1968. He further averred that thereafter the Ad-hoc Committee of the College was reconstituted by the University in June 1969 whereafter on 20.9.1972 defendant no.3, who was continuously working in the college, was nominated by the Principal as teacher representative member of the Committee of the College. 11. Learned counsel for the appellant further stated that the appointment of defendant no.3 was subject matter of C.W.J.C. No. 614 of 1968, which was dismissed as withdrawn without any liberty to file a suit and hence, in the instant suit the plaintiff had not challenged the appointment of defendant no.3 (appellant) or the dismissal of the plaintiff (respondent no.1), thus the reliefs granted by the learned courts below in that regard were beyond the reliefs sought by the plaintiff. It was also stated that the facts with regard to the writ case was suppressed by the plaintiff in his plaint, although he should have mentioned it. He 6 also averred that the recommendation of the Commission was acted upon by the Ad-hoc Committee, which appointed first named person, namely, defendant no.3, and hence there is no question of appointment of the plaintiff on the same post specially when the appointment of the Ad-hoc Committee in question was never challenged in any suit, either earlier or even in the instant suit, which was filed in the year 1972, i.e. about 05 years after the said appointment. In this regard he relied upon a decision of this court in the case of Dr. Sunil Kumar Jha Vs. The State of Bihar & Ors., reported in 2002(4) P.L.J.R., in which it was held that first nominee of the Commission has to be appointed and even Vice-Chancellor has no jurisdiction to interfere with the recommendation of the Commission. 12. Learned counsel for the appellant also submitted that so far the nomination of teacher representative on 20.09.1972 is concerned, the instant suit filed in the year 1972 itself was not barred by limitation but the college having admittedly become a constituent unit of the University in 1976 the said relief became infructuous during the pendency of the suit. However, with respect to the other reliefs granted by the learned courts below it was claimed that they were with respect to appointment of defendant no.3 and termination of plaintiff on 28.07.1968, although not claimed by the plaintiff, and are clearly barred by Article 58 of the Limitation Act. It was also claimed by the appellant that after accepting fresh appointment in the same College on 30.01.1977 and receiving salaries on that basis, the plaintiff waived all his earlier claims by giving undertaking vide Ext.A and Ext.B before the authorities concerned. It was also averred that no relief was sought by the plaintiff for payment of salary but that was also granted to the plaintiff with effect from 1968 till his retirement in 2001, by the learned courts below. 13. In the said circumstances, learned counsel for the appellant averred that the impugned judgments and decree of the learned courts below are in complete violation of section 57A of the Bihar Universities Act according to which appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. In the instant circumstances, the appellant fulfilled all the required criterion for the post and was the first choice of the Commission but the President of the Governing Body of the College, who was none else than the father of plaintiff-respondent no.1, issued letter of appointment of plaintiff violating and ignoring the recommendation of the Commission. He further submits that the aforesaid letter of 7 appointment issued to respondent no.1 being flagrantly violative of the statutory procedures prescribed for selection and appointment, the same is clearly illegal and is not valid appointment in the eye of law and hence respondent no.1 is not entitled even to any consequential relief in view of the above mentioned decision of a Full Bench of this Court in case of Rita Mishra and others (supra). 14. The claim of respondent no.3, namely the Principal of M.V. College, Buxar is that the earlier Governing Body ceased to function after 31.05.1968 when Ad-hoc Committee was constituted and it continued functioning till 31.05.1969 and hence the appointment of defendant no.3 (appellant) made by the Ad-hoc Committee on 28.07.1968 was absolutely legal and proper as it was on the basis of recommendation of the University Service Commission, which placed his name at the top of the list. He further submitted that the said Ad-hoc Committee having been constituted on 31.05.1968 and having continued till 31.05.1969 was never challenged by anyone nor it was ever found to be illegal and its validity remained intact. Much after 01.06.1969 the President of the previous Governing Body filed Title Suit No. 70 of 1969 challenging the subsequent Ad-hoc Committee, which was appointed by the University on 01.06.1969 and in that suit his injunction petition was dismissed whereafter orders were passed in miscellaneous appeal and civil revision, which were clearly not with respect to the Ad-hoc Committee, which functioned from 01.06.1968 to 31.05.1969 and in the meantime it had appointed the appellant on 28.07.1968 on the basis of which he continuously worked and even after the judgment and decree of the learned trial court he worked on the basis of order of stay passed by the learned court of appeal below. He also stated that respondent no.1 (plaintiff) never worked in the college and his entire claim is on the basis of letter of appointment dated 13.06.1968 issued by his father, who was earlier the President of the Governing Body, which had ceased to function after 31.05.1968. It is averred that in any view of the matter the appointment has to be made by the Governing Body, which was admittedly not done and the appointment made by the father of the plaintiff cannot be held to be legal and valid in view of the decision of the Hon’ble Apex Court in case of District Basic Education Officer Vs. Dhananjai Kumar Shukla and Another, reported in 2008(3) SCC 481. In the said circumstances, respondent no.3 fully supported the claim of the appellant, who was defendant no.3 in the suit. 8 15. Learned counsel for respondent no.2, namely Vice-Chancellor of Magadh University has made no submission as according to him the said University has got no concern left with the college, which has now become a constituent unit of Veer Kuwar Singh University (respondent no.4). The claim of respondent nos.4 and 5, namely Veer Kuwar Singh University, Ara and its Vice-Chancellor is that the said college, namely M.V. College, Buxar (respondent no.3) became its constituent unit from November, 1992 when the said University started functioning. It was also stated by learned counsel for respondent nos.4 and 5 that the Ad-hoc Committee constituted on 31.05.1968 started functioning on 01.06.1968 and made appointment of appellant on 28.07.1968 on the basis of concurrence by the University Service Commission dated 11.06.1968, which was also approved by the Vice-Chancellor of Magadh University (respondent no.2) on 20.08.1971 (Ext.E) and since then the appellant (defendant no.3) worked continuously and received salary in view of order of stay of the High Court dated 27.03.1997 till his retirement on 30.04.2008, whereas respondent no.1 (plaintiff) neither worked for any period nor had received salary for the post concerned. In the said circumstances, respondent nos.4 and 5 also supported the contentions of the appellant. 16. On the other hand, the claim of respondent no.1 (plaintiff) is that on 01.10.1966 he was appointed on temporary basis as a lecturer in Hindi on the sanctioned post by the duly constituted Governing Body of the college in question and was re-appointed on temporary basis on 23.11.1966 and 19.08.1967 and subsequently concurrence for such temporary appointment was given by the University Service Commission whereafter he continued functioning. It was also claimed that on 11.06.1968 the University Service Commission sent its recommendation (Ext.4) for the permanent post of Lecturer in Hindi and in the said recommendation defendant no.3 (appellant) was at Serial No.1 whereas the plaintiff (respondent no.1) was at Serial No.2. Learned counsel for respondent no.1 also claimed that he had preferential qualification due to his experience in teaching Hindi Honours Classes in the college since 1966 as required by the advertisement (Ext.3), whereas admittedly defendant no.3 had no such preferential qualification as he had got his master decree only in the year 1967 and had no teaching experience. It is stated that in the said circumstances the President of the Governing Body appointed the plaintiff on the permanent post vide letter dated 13.06.1968, which was approved by the Governing Body of the college on 11.01.1970 (Ext.7/C) and due 9 information was sent to the University and the Commission and the plaintiff continued functioning on the said permanent post till his retirement on 31.12.2001. 17. It was also claimed by learned counsel for respondent no.1 that the University illegally suspended the Governing Body of the college vide order dated 31.05.1968 and appointed the Ad-hoc Committee, which terminated the plaintiff and appointed defendant no.3 vide order dated 28.07.1968, but since the appointment of Ad-hoc Committee was absolutely illegal, the President of the previous Governing Body challenged the order of the University dated 31.05.1968 in Title Suit No.70 of 1969 and when the prayer for injunction was rejected in that suit, the President of the Managing Committee filed M.A. No. 92 of 1969, which was allowed by the learned Additional District Judge, Bhojpur vide order dated 20.12.1969 (Ext.23) and passed an order of injunction against the defendants of that suit holding prima facie that the Governing Body never ceased to function and was continuously functioning whereas the constitution of Ad-hoc Committee was illegal. It was averred on behalf of respondent no.1 that against the said order passed in miscellaneous appeal the University filed Civil Revision No. 62 of 1970, which was disposed of vide consent order dated 16.02.1970 (Ext.23/A) directing the University to fill up existing vacancies in the Governing Body by 31.03.1970 and restrained the Ad-hoc Committee from making any permanent appointment. Hence, he submits that the order passed in the miscellaneous appeal continued to operate with certain modification as per the High Court’s order. It is also submitted that during the pendency of the suit, the college became a constituent unit of the University in the year 1976 due to which the said Title Suit No. 70 of 1969 became infructuous and was dismissed on that score in the year 1977 without any consideration on merits. 18. Learned counsel for respondent no.1 averred that although he had filed C.W.J.C. No. 614 of 1968 against the order of his termination dated 28.07.1968 but the said writ petition was not decided on merit and it was simply withdrawn by the plaintiff on 13.08.1968, hence there being no consideration on merits, the question of res-judicata will not be attracted and that such type of dismissal of a writ petition cannot be compared with a suit having been withdrawn without any permission to file a fresh suit because the right to file a suit is a statutory right on the basis of specific provisions of the Code of Civil Procedure, and hence the order passed in the writ case did not create any bar in the filing of the suit. In this regard, he relies on the aforementioned decision of the Full Bench of this court in case of Rita 10 Mishra and Others (Supra), in paragraph-31 of which it has been held that where the basic and material facts are categorically controverted and traversed, the exercise of the writ jurisdiction would be inapt and doubly so no mandamus can possibly issue on such a slippery base and the petitioners must be relegated to their ordinary remedies by way of civil suits. He thus stated that the said decision of the Full Bench is not in favour of the appellant (defendant no.3), rather it is in favour of respondent no.1 (plaintiff). He also relies upon a decision of the Hon’ble Apex Court in case of Smt. Pujari Bai etc. Vs. Madan Gopal (dead) L.Rs. viz. Smt. Jaiwanti & Ors. reported in A.I.R. 1989 SC 1764 in paragraph 24 of which it was held that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res-judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. 19. Learned counsel for respondent no.1 also stated that admittedly the plaintiff had preferential qualification and had been appointed by the Governing Body, which was found by both the learned courts below to be continuously functioning and having never ceased to function and on its order plaintiff was working on the permanent post of lecturer in Hindi continuously from 1967 on the basis of