IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5472 of 2006 Satish Kumar Arya, son of late Kashi Nath Prasad Singh, resident of village and P.O. Gahri Kothi Via Jagdishpur, P.S. Nautan, District West Champaran, Presently residing at „Chandra Bhawan‟ Mohalla Atardah Kachi Pucci Road, Muzaffarpur … Petitioner Versus 1. The V.C.,B.R.A.Bihar University, Muzaffarpur 2. The Registrar, B.R.A. Bihar University, Muzaffarpur 3. The Secretary, Bihar College Service Commission, Boring Canal Road, Patna-1 4. The Secretary, Governing Body, Dr. Jagarnath Mishra College, Muzaffarpur 5. The Principal Dr. Jagarnath Mishra College, Muzaffarpur 6. Dr. Binod Kumar Dutta son of not known to the petitioner working as Lecturer of Commerce Dr. Jagarnath Mishra College, Muzaffarpur … Respondents ---------------------------------- 11. 2.9.2011 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “That this application is for issuance of appropriate writ/ writs commanding the respondents specially the respondent no.5 to assign the teaching class to petitioner as he has been appointed and joined as lecturer of Commerce in the aforesaid College in light of the letter dated 17.4.1997 and 12.6.1997 (Annexure- 1 and 3) and further direction be made to respondent University to approve the name of the petitioner against the 2nd post at the basis of the letter dated 12.6.1997 whereas name of respondent no.6 against the 3rd post who is junior to the petitioner has been approved by the respondent university leaving aside the case of the petitioner.” Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the petitioner was recommended by the Bihar College Service Commission against 2 the 2nd post of Lecturer in the Department of Commerce in Dr. Jagarnath Mishra College, Muzaffarpur, an affiliated College of B.R.Ambedkar Bihar University and pursuant to that recommendation the governing body of the College had appointed the petitioner on 12.6.1997 but as the said appointment letter was received by the petitioner on 27.4.1998 he had approached the authorities of the College who had initially accepted his joining but subsequently the petitioner was shown the door due to non- fulfilment of extraneous demand of the authorities of the Governing Body and the Principal of the College. He has also submitted that the resultant vacancy shown to have been filled up by one Kamlesh Kumar is an fraudulent act and the appointment letter which has been produced by the Governing Body before this Court dated 17.6.1998 is fit to be rejected on the face of record, inasmuch as it is a letter head containing seven digits of phone number which came into being only in April, 2003. He would, accordingly, submit that when it is an admitted position that the petitioner was appointed in the College after due observance of Section 57A of the Bihar State Universities Act (hereinafter referred to as „the Act‟) and that the aforementioned Kamlesh Kumar was never recommended by the Bihar College Service Commission before his appointment on 17.6.11998, this Court should direct the authority of the Governing Body to accept joining of the petitioner and also to the University to grant approval of appointment of the petitioner with consequential benefit flowing from such appointment of the petitioner. 3 Mr. Rajendra Kumar Giri, learned counsel appearing on behalf of the University, has stated that the matter relating to appointment of the petitioner being that of an affiliated College, the University has got no control over the matter and that the approval of the services of appointment made by the Governing Body in keeping with the provisions made under section 57A of the Act can be accorded only if the petitioner‟s case was forwarded by the College. In this context he has also explained that for the Department of Commerce of College in question, the Syndicate of the University has only approved the services of two persons, both of them were recommended by the Commission and it has not approved the service of Kamlesh Kumar because he was not recommended by the Commission and that there was no question of approval of service of the petitioner as his case was never forwarded by the Governing Body of the College to the University. Mr. Ashish Giri, learned counsel appearing on behalf of the Governing Body of the College, on the other hand, has submitted that this writ application is not maintainable, inasmuch as the petitioner seeks a writ of mandamus against the Governing Body which is not the State under Article 12 of the Constitution of India. He has further submitted that the petitioner‟s appointment letter dated 12.6.1997 had a definite clause that he must submit his joining within 15 days, failing which his offer of appointment shall stand cancelled. He has pointed out that on own showing of the petitioner he had not submitted his joining within the stipulated 15 4 days, inasmuch as he himself has claimed that he had gone to submit his joining report after 27.4.1998 on the alleged receipt of appointment letter by him dated 12.6.1996. He has further relied on the judgment of the Apex Court in the case of State of Bihar & ors. vs. Amrendra Kumar Mishra, reported in 2006(4) PLJR 182 (S.C.) to contend that in a similar situation when this Court had sympathetically allowed joining of a person duly recommended by the Commission, the Apex Court had set aside the order of the Court by holding that there can be no permanent offer of appointment and that non-joining within the stipulated period by itself would bring to come to an end to claim of appointment. In reply learned counsel for the petitioner has stated that the ratio of the aforementioned judgment will not be applicable to the present case inasmuch as in the case of the petitioner joining of the petitioner has already been accepted by the Governing Body and he was shown the door only later on on account of non-fulfilment of illegal demands of the members of the Governing Body and the Principal of the College. He would also highlight on the aspect relating to appointment of Kamlesh Kumar being not only ante-dated but also in violation of the provisions of Section 57A of the Act. Strictly speaking this writ application on the basis of prayer made herein is not maintainable so far it relates to grievance of the petitioner as against the Governing Body of the College. The submission of the learned counsel for the petitioner that as a matter of fact the petitioner has also sought a relief 5 against the University which is statutory body has to be only noted for its being rejected. The relationship of an affiliated College with the University is well circumscribed by the provisions of section 59 of the Act which gives full power and authority to the affiliated College to manage its own affairs including making appointment on the post of teaching and non-teaching staff . The question of approval can only arise in respect of such persons whose appointment having been made by the Governing Body is reported seeking concurrence/ approval of the University and that too in respect of such Colleges where funds are being released by the State Government for payment of salary. Admittedly in this case in the year 1997 no funds were being released by the State Government to the University for payment of salary to the teaching and non-teaching employees. Any such arrangement came to be made only after the year 2005 when the Government took a conscious decision to also pay salary in other institutions being not aided College or minority College. In that view of the matter, when the petitioner‟s relief basically is against the Governing Body of the College, namely, for acceptance of his joining and granting approval of the appointment of the petitioner, it must be held that this writ application on the face of record is not maintainable. The mere pretence of the University‟s approval cannot make the writ petition maintainable, inasmuch as the University has got no power in controlling the service condition of the teachers of an affiliated College. The matter can be viewed from another angle and to 6 that extent the submission of Mr. Ashish Giri seems to be correct that even if it be held that the writ petition is maintainable the petitioner cannot explain the delay of 8 to 9 years in moving this Court. The counsel for the petitioner has tried to gap up this delay by saying that the petitioner was filing the representations to the authorities of the Governing Body and/or the University for acceptance of his joining but then the crux of the matter remains that a cause of action of the year 1997-98 is sought to be brought to this Court by filing this writ application on 26.4.2006. It is well settled that mere filing of representations would not explain delay. Therefore, there being no plausible explanation for delay of literally 8 to 9 years in moving this Court, this writ application must fail also on the ground of unexplained delay and laches on the part of the petitioner. The reliance placed by Mr. Giri on the judgment of the Apex Court in the case of Amrendra Kumar Mishra (supra) is also apt and appropriate. It has to be taken into account that the Apex Court had found that Amrendra Kumar Mishra was declared to be successful in 1991 and on the recommendation made by the Bihar Subordinate Service Selection Board the appointment letters were issued on 21.2.1992 but Mr. Mishra did not join and on 20.7.1994 he had approached the authority for issuance of an appointment letter and acceptance of his joining. It also appears from the narration of the facts recorded in the judgment of the Apex Court in the case of Amarendra Kumar Mishra (supra) that when the authorities did not accede to the said prayer of Mr. 7 Mishra, he had filed a writ application which was disposed of by a direction of this Court for appointing Mr. Mishra on the post of Head Assistant in the light of the recommendation of the Board and when the respondent authorities of the State of Bihar had appointed him in July, 2006 subject to the decision of the Apex Court, it was held by the Apex Court that the High Court should not have allowed Mr. Mishra to join his services only on the basis of sympathy. It was also laid down that the life of the panel remains valid only for one year and if no appointment letter was received by him in that period and he had slept over his right for next nine years before moving the High Court, he should not have been favoured with a direction for appointment/ acceptance joining. The Apex Court, therefore had negatived the acceptance of any legal right of Mr. Mishra holding that merely because he was recommended by the Commission that could not have given him a perpetual right to enforce for his being appointed at any point of time. In the considered opinion of this Court the facts herein are almost identical, inasmuch as here too the life of validity of the panel made by the College Service Commission is for a period of one year. The petitioner‟s appointment in fact in the light of the recommendation was also made but he did not join the post within the stipulated time of 15 days and in fact he had approached the authorities after the life of the panel had already expired. The fact that the petitioner‟s joining was not accepted on 27.4.1998 despite a valid recommendation in his favour had 8 definitely given him a cause of action in 1998 but his remaining silent altogether for the period of next eight years before filing of this writ application would be indicative of the fact that the petitioner has developed the whole story for acceptance of his joining only when the benefit of payment of salary from the funds of the State Government was extended to the teaching employees of the College in the year 2005. This Court, therefore, following the ratio of the judgment of the Apex Court in the case of Amrendra Kumar Mishra (supra) cannot issue a writ of mandamus directing the Governing Body to accept joining of the petitioner, especially when the fact of his alleged joining on 27.4.1998 or receipt of his appointment letter dated 27.4.1998 is seriously disputed by the Governing Body in its counter affidavit and supplementary counter affidavit. This Court in absence of Kamlesh Kumar who has not been impleaded as a party respondent to this writ application would not like to make any adverse comment against him but as the University has itself taken a stand that it has not approved the services of Kamlesh Kumar and the Governing Body has also accepted that his appointment was not made after observance of Section 57A of the Act, the University and the College must proceed on the basis that the vacancy caused due to non-joining of the petitioner was/is still existing and since now the power of College Service Commission also has been vested in the Selection Committee of the University, the Governing Body in case it feels it necessary will make fresh requisition for the said post for its being 9 filled up strictly in accordance with law. The petitioner, if he so chooses, can also file an application against the said post and Kamlesh Kumar, who is not a party respondent to this writ application, will also have the similar liberty of filing his application for being considered for appointment against the said post. As with regard to the prayer made in this writ application it must be held that since there is a serious dispute on question of fact where the petitioner alleges fraud in appointment of Kamlesh Kumar and/or non-acceptance of his joining due to extraneous considerations, the petitioner, if he so wishes, may still agitate his claim before the appropriate Civil Court where the petitioner and the Governing Body of the College will have all possible avenues of leading their evidence in support of their case. In the event the petitioner files such a civil suit anything said in this order shall not come in his way in getting such relief. Subject to the aforementioned observation, direction and liberty this application must fail and is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/