IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No. 358 of 2011 In CWJC No. 17804 of 2009 With I.A. No. 1565 of 2011 And I.A. No. 1566 of 2011 =================================================== 1. Dr. Om Prakash Singh, son of late Ramjee Singh, at present working as Principal, S. Sinha College, Dist. – Aurangabad, the then Principal, A.N.S. College, Nabinagar, Dist. – Aurangabad, 2. Dr. Vinay Krishna Tiwary, son of late S.D. Tiwary, At present working as Principal, G.J. College, Rambagh, Bihta, Dist. – Patna, 3. Dr. Praveen Kumar, son of Late L.N. Karn, at present working as Principal B.S. College, Danapur, Dist. – Patna, then then Principal, Daudnagar College, Daudnagar, Dist. Aurangabad, 4. Dr. (Mrs.) Sheela Singh, wife of Shri Amar Nath Singh, at present working as Principal, R.M.W. College, Nawada, 5. Dr. Puspendra Kumar Verma, son of Shri Lallan Pd. Verma, At present working as Principal, College of Commerce, Kankerbagh, Distt. Patna, the then Principal, S.M.D. College, Punpun, Dist. Patna, 6. Dr. Upendra Prasad Singh, son of late Deo Narayan Mahto, at present working as Principal, S.P.M. College, Udantpuri, Dist. – Nalanda, 7. Dr. Md. Shamsul Islam, son of late (Dr.) M.Z. Islam, at present working as Principal, S.M.S.G. College, Sherghati, Dist. – Gaya, 8. Dr. Sunil Suman, son of Late Mohan Ram, at present working as Principal, T.S. College, Hisua, Dist. – Nawada, 9. Dr. Arjun Sharma, son of Late Basudeo Sharma, at present working as Principal, K.L.S. College, Nawada, 10. Dr. Baidyanath Thakur, son of Late Mahavir Thakur, at present working as Principal, J.N.L. College, Khagaul, Dist. Patna, 11. Dr. Dilip Kumar, son of late Jethu Roy, at present working as Principal, M.D. College, Naubatpur, Dist. Patna, 12. Dr. Satish Singh Chandra, son of Late Gaya Prasad Singh, At present working as Principal, M.M. College, Bikram, Dist. – Patna, 2 13. Dr. Satyendra Prajapati, son of late Ram Kumar Prajapati, At present working as Principal, S.N.S. College, Tikari, Dist. Gaya, 14. Dr. (Mrs.) Meera Kumari, wife of Mr. Dilip Kumar, at present working as Principal, G.B.M. College, Gaya, 15. Dr. Jitendra Rajak, son of Shri Gulab Chandra Prasad, at present working as Principal, R.R.S. College, Mokama, Dist. Patna, 16. Dr. Vijay Rajak, son of Late Hari Rajak, at present working as Principal, S.D. College, Kaler, Dist. – Arwal, 17. Dr. Arun Kumar Rajak, son of Late Rama Rajak, at present working as Principal, S.B.A.N. College, Darhetta Lari, Dist. – Jehanabad, 18. Vishundeo Rajak, son of late Jhari Rajak, at present working as Principal, S.U. College, Hilsa, Dist. – Nalanda …… Appellants / Respondents Versus 1. Dr. Bimal Prasad Singh, son of late Rajendra Prasad Singh, R/o Mohalla – Mritunjay Chaterjee Lane, P.S. – Gardanibagh, Dist. – Patna, at present working as Reader, Dept. of Political Science, A.N. College, Patna, 2. Dr. Shailaj Kumar Srivastava, son of Sri Hareshwar Prasad Srivastava, R/o Gayatri Tapo Griha, Chitragupta Nagar, P.S. Patrakar Nagar, Dist. – Patna, at present working as Principal, Co-operative College, Begusarai, 3. Dr. Yogendra Kumar, son of Sri Bhaheran Mahto, resident of Krishna Ghat, Patna University Campus, P.S. – Pirbahore, Dist. Patna, at present working as Lecturer, Dept. of History, Nalanda College, Biharsharif, 4. Dr. Kumar Virendra Sinha, son of Late Rajendra Prasad, resident of E- 103, Monica Apartment, Khajpura, P.S. – Shashtri Nagar, Dist. – Patna, At present working as Reader & Head, Dept. of Physics, B.S. College, Danapur, 5. Dr. Brajesh Kumar Rai, son of Sri Kameshwar Prasad, Resident of L- 121, Chanakyapuri Colony, P.S. – Rampur, Dist. – Gaya, At present working as Lecturer, Dept. of Hindi, A.M. College, Gaya, 6. Dr. (Smt.) Pritpal Kaur, wife of Madhusudan Singh, resident of Salimpur Ahara, Dwarka Nath Lane (Boulia), P.S. – Kadamkuan, Dist. – Patna, 3 7. Dr. Phulo Paswan, son of Late Kheyali Paswan, resident of Village – Makia, P.S. Benipatti, Dist. – Madhubani, At present working as Principal, V.S.J. College, Raj Nagar (Madhubani) under L.N. Mithila University, Darbhanga, 8. Dr. Manoj Kumar, son of Prof. (Dr.) A.S. Yadav, resident of Road No. 13, Rajendra Nagar, Patna, at present working as Lecturer, Dept. of Botany, College of Commerce, Kankerbagh, Patna …. Respondents / Petitioners, 9. The State of Bihar through the Principal Secretary, Human Resources Development Department, Govt. of Bihar, New Secretariat, Patna, 10. The Chancellor, Universities of Bihar, Raj Bhavan, Patna, 11. The Magadh University, through the Registrar, Magadh University, Bodh Gaya, 12. The Vice Chancellor – cum – Chairman of Selection Committee, Magadh University, Bodh Gaya, 13. The Registrar, Magadh University, Bodh Gaya … Respondents / Respondents. =================================================== APPEARANCE For the appellants: Mr.Y.V. Giri, Sr. Advocate and Mr. Rajesh Kumar Singh, Advocate. For the State: Mr Yogendra Prasad Sinha, AAG 15. For the University: Mr. Hans Raj and Mr. Anil Kumar Sinha, Advocates. For the other respondents: Mr. Siya Ram Shahi, Mr. Navin Prasad Singh, Mr. Narayan Singh and Mr. Amresh Kumar Singh, Advocates. =================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4 4. 05.04.2011. This Appeal preferred under Clause 10 of the Letters Patent arises from the common judgment and order dated 28th January 2011 passed by the learned single Judge in so far as CWJC No. 17804 of 2009 is allowed. The appellants are 18 of the defending respondent nos. 6 to 32 in the Writ Petition. The subject matter of dispute is the selection and appointment of the appellants as Principals in the constituent colleges of the respondent – Magadh University (hereinafter referred to as “the University”). The facts leading to the present Appeal are as under:- On 25th October 2008, an advertisement was published under the name of the Vice Chancellor of the University calling for applications from eligible candidates for appointment on 22 vacant posts of Principal in its constituent colleges. Of the 22 vacancies advertised, 6 were reserved for Scheduled Caste candidates, 1 for Scheduled Tribe candidate and 7 for Extremely Backward Class candidates. Eight vacancies were available for General Category candidates. Against the 22 vacancies advertised, the University, under its Notification dated 8th June 2009, published a select list comprising 23 General Category candidates, 14 Extremely Backward Class candidates and 12 Scheduled Caste candidates. Against the vacancy reserved for Scheduled Tribe candidate, no application was received. Pursuant to the said select list, under its Notification dated 9th June 2009, the University made 8 appointments in General Category, 2 in Backward Class II category, 1 in the category of Sikh minority, 7 in 5 the category of Extremely Backward Class and 6 appointments in the category of Scheduled Caste. Thus, against the 22 posts advertised, the University made 24 appointments. The University made appointment in the categories of Backward Class II, Other Backward Class and the Sikh minority without advertising such reservation. The University made two more appointments on 27th August 2009. The appellants are 18 of the 27 selected candidates. Feeling aggrieved, the respondent nos. 1 to 8 filed above CWJC No. 17804 of 2009 under Article 226 of the Constitution. The petitioners alleged that the recruitment process was manipulated. The final select list was altered at the instance of the Vice Chancellor of the University. The select list was prepared not in the order of merit but category wise. Thus, the meritorious candidates in the reserved categories, who should have been included in the select list for the General Category, were empanelled as reserved category candidates. The appointments in the categories of Backward Class II, Other Backward Class and Sikh minority were made in absence of such reservation declared for the said categories obviously with a view to accommodating the said candidates. The overall result portrayed that the selected candidates were given undue advantage by awarding more marks (in the range of 80% to 90%) at the interview. The petition was contested by the University and the appellants. According to the University, the selection 6 was made after due recruitment process. The Interview Committee was constituted in consonance with the statutes. The Interview Committee included experts from the other States and the Universities. The appellants individually defended their appointment. The learned single Judge, after scrutinizing the result sheet produced on the record, considering the marks awarded to each candidate under the other criteria like academics and published research papers; and the marks awarded at the interview upheld the allegations made by the writ petitioners. The learned single Judge found that the Selection Committee had not prepared a combined merit list of all candidates. It was not the case of the University that such a combined merit list was prepared by the Selection Committee on the basis of which a panel of the selected candidates could have been prepared; that the Vice Chancellor of the University had, in his capacity as the Chairman of the Selection Committee, passed orders and issued directions indicating that the Selection Committee did not prepare a final merit list and that the panel of selected candidates was prepared at the discretion of the Vice Chancellor in his capacity as the Chairman of the Selection Committee. The Vice Chancellor had acted beyond the authority vested in her by the statute. The Selection Committee had abdicated its responsibility / obligation to prepare a final merit list. The learned single Judge has examined every alleged infirmity minutely and has found them to be true. We need not elaborately discuss all such infirmities. 7 However, in a nutshell we can say though the writ petitioners had secured good marks under the heads – academic qualification and publication of research papers, they lost on account of low or marginal marks allotted at the interview whereas some of the defending respondents who had secured really low marks for academic qualification and publication of research papers were allotted very high marks at the interview giving them an edge over the other candidates. Many of the candidates were excluded from consideration on the premise “Not confirmed in service” “Not suitable” and “Selected elsewhere” without any justification. Whereas some of the defending respondents, to name, the respondent nos. 8, 9, 10, 11, 14 & 16 were selected though they were not confirmed as Lecturers until after their appointment as Principals. As many as 14 candidates shared common platform by securing a total 76 marks. Only 11 out of the 14 were placed on the selection panel and three out of them were appointed. The University had no explanation for picking three candidates for appointment. In absence of reservation for a minority, the respondent no. 16 was appointed in the category of Sikh minority depriving other Sikh candidates of the opportunity to compete in the category of Sikh minority. Moreover, the petitioner no. 6 also belongs to Sikh community, she had secured more marks than the respondent no. 16. The University had no explanation for arbitrary appointment in the category of Sikh minority and for preferring the 8 respondent no. 16 to petitioner no. 6. These are some of the infirmities noticed by the learned single Judge. In view of the said infirmities the learned single Judge held that the selection panel was prepared in arbitrary and capricious manner. It may not be out of place to mention here that though allegations of malpractice were made specifically against the Vice - Chancellor, the Vice - Chancellor did not file a counter nor did he deny the allegations. Upon examination of the marks allotted to each applicant under various heads, the learned single Judge found that the selected candidates (the defending respondents including the appellants) were given undue advantage by giving them a very high percentage of marks at the interview. The learned single Judge has also recorded the infirmities like the two appointments made in the category of Backward Class II and an appointment made in the category of Sikh minority, without advertising vacancies in the said categories and that the total appointments made were more than the vacancies advertised. In view of the said finding, the learned single Judge set aside the impugned selection and appointments and directed a fresh recruitment process. The learned single Judge has issued detailed directions for each stage of recruitment process. Feeling aggrieved, 18 of the selected candidates have preferred this Appeal under Clause 10 of the Letters Patent. Learned counsel Mr. Y.V. Giri appeared for the appellants. He read out the judgment of the learned single 9 Judge. He has submitted that the aforesaid findings recorded by the learned single Judge are not supported by the relevant materials but are mere inferences drawn by the learned single Judge. He has submitted that the writ petitioners having participated in the recruitment process had no locus standi to challenge the recruitment process. He has referred to the Chart (Annexure-3 to the Writ Petition) to demonstrate how the markings were given to every candidate under the heads – academic qualification, publication of research papers and the interview. He has submitted that so far as the marks under the head academic qualification and the publication of research papers are concerned, the statute provides for a set formula and is purely an arithmetical calculation. No manipulation is possible. He has submitted that the appellants are the candidates who had secured fairly good marks at the interview and thus topped the merit list. Merely because they have secured good marks at the interview, no aspersion can be made against the Interview Committee comprising the experts including the experts from the other States and Universities. He has next submitted that in any view of the matter the appellants are the top 18 persons. They were selected against the vacancies advertised. Their selection, therefore, cannot be set aside on the ground that the appointments were made in excess of the advertised vacancies. In support of his arguments Mr. Giri has relied upon the judgments of the Hon’ble Supreme Court in the matter of Dalpat Abasaseb Solunke & Ors. V. Dr. B.S. 10 Mahajan & Ors. [(1990) 1 SCC 305] and of Durga Devi & Anr. V. State of H.P. & Ors. [(1997) 4 SCC 575]. The Appeal is contested by the respondent nos. 1 to 8, the writ petitioners. Learned Advocate Mr. Siya Ram Shahi has appeared for the writ petitioners. Mr. Shahi read out the judgment of the learned single Judge. He has submitted that the Statute 57 provides for constitution of the Selection Committee, the minimum qualification for the various categories such as Professor, Reader, Lecturer, for reservation and for preparation of merit list and the allocation of marks under various heads. He has submitted that out of 100, 71 marks are allotted for academic qualifications, 9 for the papers published in the journals and 20 for the interview. He has submitted that other marks being mathematical calculations, it is the interview where manipulation is possible. He has submitted that on scrutiny of the marks awarded to the candidates it is apparent that the selected candidates and the petitioners had secured competitive marks under the other heads. However, the appellants were pulled up by awarding unduly high marks in the range of 15 to 18 marks (80% to 90%) at the interview whereas the writ petitioners and others were given less than 10 marks (less than 50%) at the interview. Thus, the appellants were given an undue advantage by awarding them an unproportionately high marks at the interview. He has submitted that in view of the several infirmities found by the learned single Judge, the learned single judge has rightly set aside the recruitment process. In support of his arguments he has relied upon the 11 judgment of the Hon’ble Supreme Court in the matter State of Bihar & Anr. V. Madan Mohan Singh & ors. [1994 Supp. (3) SCC 308]. Learned Advocate Mr. Amresh Kumar Singh has appeared for the petitioner in CWJC No. 5730 of 2010. He has adopted the arguments of Mr. Y.V. Giri. Learned Advocate Mr. Hans Raj has appeared for the University. He has admitted that the University has not challenged the judgment of the learned single Judge. The University has also commenced recruitment process afresh in compliance with the directions issued by the learned single Judge. We do agree with Mr. Giri that the finding of manipulation at the selection process recorded by the learned single Judge is not supported by any material on record. But then, there cannot be any evidence of manipulation. Manipulation is a matter of inference to be drawn from the materials on record. We have perused the result sheet produced on the record, the comparative tables and the findings recorded by the learned single Judge. We do agree with the opinion of the learned single Judge that it was the bounden duty of the Selection Committee to prepare a combined merit list of all the candidates which the Selection Committee did not do. Thus, the Selection Committee abdicated its responsibility to prepare the merit list. On perusal of the comparative table it is apparent that the marks secured by the writ petitioners and the appellants under the heads – academic qualification and 12 publication of research papers were competitive, i.e. between the range of 55 and 65 out of 80. However, the appellants stole march over the others on account of very high marks awarded at the interview. Whereas the writ petitioners were pushed down on account of marginal marks awarded to them at the interview. Besides, in absence of a common merit list, the reservation could not have been effectively made applicable. Say, one Dr. Md. Shamsul Islam, who had secured very high marks (81) ought to have been appointed against General Category vacancy instead he has been appointed in the vacancy reserved for Extremely Backward Class. Appointment of Dr. Dalveer Singh in the category of Sikh minority was clearly a manipulation as in absence of any reservation for Sikh minority, or for any minority for that matter, he could not have been appointed as such. If he were meritorious enough, he could have been appointed against the General Category vacancies. His appointment as Sikh minority was clearly arbitrary and capricious. Similar is the case in respect of two appointments made in the category of Backward Class II. All these infirmities in the recruitment process made the recruitment process vulnerable. We are of the opinion that the entire recruitment process was vitiated on the grounds of discrimination, favouritism and nepotism. Such recruitment process could not have been upheld even for the appointments made against the advertised vacancies as was done by the Hon’ble Supreme Court in the matter of State of Bihar and Anr. V. Madan Mohan Singh & Ors. (Supra). The 13 learned single Judge has rightly inferred manipulation and has rightly set aside the impugned selections and appointments. For the aforesaid reasons, we dismiss this Appeal. The Interlocutory Applications stand disposed of. Patna High Court. The 5th April 2011. AFR / Dilip. ( R.M. Doshit, CJ ) Jyoti Saran, J.- I agree. ( Jyoti Saran, J )