Jaibir Mishra v. L. N. Mithila University — 1987 DIGILAW 108 (PAT)

JUDGMENT : UDAY SINHA, J. 1. This is an application under Articles 226 and 227 of the Constitution for quashing Annexure-1 to this application whereby respondent No. 3 B.K. Choudhary was transferred and posted as Principal, R.N. College, Pandaul. The ORDER :reads as follows:– "L.N. MITHILA UNIVERSITY, DARBHANGS NOTIFICATION Sri S.K. Choudhary, Reader in Psychology (at present working as Principal Co-operative Evening College, Begusarai) is transferred and posted as Principal, R.N. College, Pandaul. BY THE ORDER :OF THE VICE CHANCELLOR Sd. Q.A. Haque (Q.A. Haque) 20.5.1985 Registrar Memo. No. VCR-1657-1685/85 Dated 20.5.1987. Copy forwarded to:– (1) Person concerned. (2) Finance Officer/Assistant Registrar (I), L.N. Mithila University, Darbhanga. (3) All Officers, L.N. Mithila University, Darbhanga. (4) Professor-in-charge, R.N. College, Pandaul. He is directed to hand over charge to Shri Choudhary. Sd. Q.A. Haque (Q.A. Haque) 20.5.1985 Registrar." The stand of the petitioner is that the ORDER :is illegal, arbitrary, malafide and violative of Article 16 (2) of the Constitution. 2. The petitioner was appointed Lecturer in Economics in S.V. Patel College, Bhabhua on 24.3.1958. On 1.6.1959 he joined in the same capacity in R.N. College, Pandaul, an admitted College, and since then he has been associated with that College. It appears that sometime in 1962 a dispute cropped up between Jagdish Chandra Purbey and Jagdish Pandey in regard to the right to be appointed Professor-in-Charge/Principal of the College which was subject matter of M.J.C. No. 85 of 1962 at the instance of Badri Narain Rawat. A. Bench of this Court presided over by S.C. Misra and S.P. Singh JJ. ORDER :ed on 1.3.1962 in that application that Jaibir Mishra, the petitioner, who was acting as Professor-in-Charge would discharge the duties of the Principal of the College for the purposes of University Examinations. In July, 1973 the Governing Body of the College appointed the petitioner as Vice-Principal of the College. The appointment was approved by the University. The petitioner joined as Vice-Principal on 20.8.1973 and continued to function as such till 31.1.1984. In the meantime, the College became a Constituent College of Bihar University with effect from 1.4.1977. By ORDER :dated 10.11.1981 the University promoted the petitioner to the post of Reader with effect from 14.11.1980. This was done on the basis of a regular selection. The Principal of the College, R.N. College, Pandaul was to superannuate in December, 1983. In the meantime, the College became a Constituent College of Bihar University with effect from 1.4.1977. By ORDER :dated 10.11.1981 the University promoted the petitioner to the post of Reader with effect from 14.11.1980. This was done on the basis of a regular selection. The Principal of the College, R.N. College, Pandaul was to superannuate in December, 1983. The University, therefore, directed the then Principal by ORDER :dated 23.12.1983 to hand over change of the College to the petitioner, who was senior-most teacher in the College. Accordingly, the petitioner took charge of the office of Professor-in-Charge on 1.2.1984. Needless to say that the University accorded to him the allowances due to a Professor-in-Charge. The petitioner performed all the duties which are to be performed by a Principal till the day Annexure 1 was issued. That is the Bio-data of the petitioner. 3. Let us now look to the Bio-data of respondent No. 3. He was appointed Lecturer in R.B. College, Dalsingsarai; an affiliated College, on 21.8.1961. On 14.11.1980 the University promoted him as Reader. By ORDER :dated 9.2.1980 respondent No. 3 was appointed Principal of Co-operative College, Begusarai. His appointment as Principal was challenged before this Court in CWJC No. 2952 of 1980 This Court by ORDER :dated 22.11.1980 stayed the operation of the ORDER :by which the respondent no. 3 had been appointed Principal of the College. While the writ application was pending in the High Court, the Chancellor decided the representation of the petitioner Valmiki Prasad Singh in that writ application (not the petitioner). He disapproved the appointment of respondent no. 3 to the post of Principal. The ORDER :of the Chancellor is Annexure-7 to this application. The ORDER :of the Chancellor read as follows:– "16. In view of the position explained above, it appears that the decision of the Governing Body for appointment of the second nominee i.e. Sri Brajendra Kumar Choudhary can also not be upheld. In the circumstances, the decision of the Governing Body regarding appointment of Sri Brajendra Kumar Choudhary is disapproved. Let the post of Principal be readvertised and selection be made according to tile Statutes/Ordinance/Act and guideline, issued in this connection." Respondent No. 3 thereafter worked only as Reader in Begusarai College, a Constituent College. Then came the impugned ORDER :dated 20.5.1985 contained in Annexure-1 whereby the University purported to transfer and post the respondent as Principal of R.N. College, Pandaul. Then came the impugned ORDER :dated 20.5.1985 contained in Annexure-1 whereby the University purported to transfer and post the respondent as Principal of R.N. College, Pandaul. The ORDER :of the University has been quoted earlier. It will be seen that in that ORDER :respondent no. 3 was shown as Principal, Co-operative Evening College, Begusarai. The petitioner has taken exception to respondent no. 3 being described as Principal of Begusarai College. Those are the facts on which we have got to decide whether Annexure-1 should be quashed. 4. Learned counsel for the petitioner has contended that Annexure-1, the impugned ORDER :is malafide inasmuch as it purports to clothe the ORDER :as mere ORDER :of transfer. According to him, a mere ORDER :of transfer cannot be challenged and, therefore, the ORDER :has been passed in terms of a mere transfer ORDER :. According to Mr. Basudeva Prasad, learned counsel for the petitioner, Annexure-1 is not a mere ORDER :of transfer, but an ORDER :of promotion and posting. Let us analyse the situation. The first question that arises in this connection is, was respondent no. 3 working as Principal on the day Annexure-1 was passed? I have shown earlier in paragraph 3 that the University appointed respondent no. 3 as Principal of Begusarai Co-operative Evening College on 9.2.1980. His appointment was challenged by Valmiki Prasad Singh before the Chancellor. Finding his appeal not being disposed of quickly by the Chancellor, he filed a writ application before this Court which was subject matter of CWJC No. 2952 of 1980. By ORDER :dated 22.11.1980 the operation of the ORDER :appointing respondent no. 3 as Principal of Begusarai Co-operative Evening College was stayed. While the writ application was pending, the Chancellor disapproved the appointment of respondent no. 3. The decision of the Governing Body was quashed by the Chancellor. The ORDER :of the Chancellor (Annexure-7) disapproving the respondent's appointment as Principal was passed on 1.8.1984. Thus up till 1.8.1984 the respondent was not Principal of Begusarai Co-operative Evening College. No ORDER :was passed thereafter appointing the respondent as Principal/Professor-in-Charge of the College at Begusarai or of any other College. 5. In the counter-affidavit filed on behalf of the University respondents 1 and 2 it has been stated in paragraph 8 that the respondent no. 3 had been working as temporary Principal of the College at Begusarai since 1976. No ORDER :was passed thereafter appointing the respondent as Principal/Professor-in-Charge of the College at Begusarai or of any other College. 5. In the counter-affidavit filed on behalf of the University respondents 1 and 2 it has been stated in paragraph 8 that the respondent no. 3 had been working as temporary Principal of the College at Begusarai since 1976. It has been averred in that paragraph that the appointment was challenged in CWJC No. 2952 of 1980 and that writ application is still pending. According to the University thus the question of legality of the respondent's appointment as Principal is still subjudice and thus an open question. I regret the stand of the University is untenable. It is not in controversy that the Chancellor set aside the resolution of the Governing Body appointing the respondent as Principal of the College. Thus the ORDER :appointing him Principal has become no-nest. The writ application is no more subjudice. It was disposed of by H.L. Agrawal, J. by JUDGMENT : dated 21.11.1985. In paragraph 3 of that JUDGMENT :, the learned Judge noted that in view of the decision of the Chancellor the appointment of respondent no.3 (respondent no. 6 in CWJC No. 2952 of 1980), the main relief for which the petitioner had come had been granted. Thus there is nothing subjudice in regard to the appointment of respondent no. 3 as Principal. The University has not claimed that any ORDER :appointing the respondent as Principal was passed by the University or by the Managing Committee. Respondent No. 3 has filed an expansive counter-affidavit. It is not his stand that any ORDER :was passed subsequent to 1.8.1984 appointing him Principal or Professor-in-Charge, Begusarai Co-operative Evening College. Respondent No. 3 also has harped upon the fact of his having been appointed a Principal in 1976. The resolution appointing respondent no. 3 as Principal substantively having been quashed by the Chancellor, neither respondent no. 3 nor the University can contend that respondent no. 3 has been functioning as Principal since 19.5.1976. 6. It is patent thus, upon consideration of materials on record that respondent no. 3 was never legally, Principal of any College. On the other hand, it is evident that the petitioner has been functioning as Professor-in-Charge which is equivalent to Principal since 1.2.1984. 3 has been functioning as Principal since 19.5.1976. 6. It is patent thus, upon consideration of materials on record that respondent no. 3 was never legally, Principal of any College. On the other hand, it is evident that the petitioner has been functioning as Professor-in-Charge which is equivalent to Principal since 1.2.1984. The respondent never worked as Principal/Profession-Charge and yet he has been described in Annexure-1 as Principal, Co-operative Evening College Begusarai. This misdescription of the respondent cannot be lightly passed over as a slip of pen or inconsequential description. I am inclined to accept the submission advanced by learned counsel for the petitioner that the description of the respondent as Principal of Begusarai Co-operative Evening College was mentioned with oblique motive. Annexure-l thus was issued in malafide exercise of power. It is, therefore, liable to be quashed on that score. 7. Let us now examine the stand of the petitioner that he is senior to respondent no. 3 in service and, therefore, could not have been placed below respondent no. 3 which would be the result, if Annexure-l is given effect to. It is not in controversy that both the incumbents, the petitioner and respondent no. 3, were promoted to the rank of Reader on 14.11.1980. Both having been elevated to that position on the same date the inter se seniority must commensurate with the seniority in the post below as Lecturer. Pursuing the research in that direction, it is obvious that the petitioner was senior to respondent no. 3. It is not in controversy that the petitioner was appointed Lecturer in Economics in S.V. Patel College, Bhabhua on 24.3.1958. Respondent No. 3 on his own showing started his career as a Lecturer in Psychology in 1959 when he joined A.P.S.M. College, Barauni on 31.8.1959. Respondent No. 3 has not contended that he can reckon his seniority earlier than 31.8.1959 nor was it possible to take such a position. The petitioner, on the other hand, was appointed on 24.3.1958. Rule 9 of the Statutes for promotion of Lecturers to the post of Readers reads thus:– "9. The seniority on the post of Reader shall be determined from the date of the promotion but the inter se seniority of the Lecturers promoted as Readers on the same date shall be the same as they had on their post of Lecturers." 8. The seniority on the post of Reader shall be determined from the date of the promotion but the inter se seniority of the Lecturers promoted as Readers on the same date shall be the same as they had on their post of Lecturers." 8. Nothing has been brought to our notice indicating any short-coming in the functioning of the petitioner as Principal of R.N. College, Pandaul. The facts thus clearly are that the petitioner is senior to respondent no. 3 as teacher. There is no complaint of mal-administration or of any deficiency in the petitioner. The petitioner has been functioning as Principal/Professor-in-Charge since February, 1984. Respondent No. 3 on the other hand, has never functioned legally as Principal/Professor-in-Charge. The Inter University Board has framed rules for transfer with the approval of the Chancellor. A copy of the guidelines was shown to us at the Bar by learned counsel for the petitioner, but it has not been annexed to any of the affidavits, so I cannot refer to it. Suffice it to say, they do not support any of the respondents. The impugned ORDER :is not in accord with any of the principles laid down by the Inter University Board. 9. Learned counsel for the University contended that in terms of the Statutes of the University, appointment of a Principal has to be done on the recommendation of the University Service Commission. Since the Commission has not made any recommendation the petitioner's appointment as Principal in 1984 must be taken as Ad-hoc or provisional. That being so, the petitioner had no right to be appointed or to continue as Principal of R.N. College, Pandaul. The submission is entirely fallacious. It is true that the statutory modality had not been followed for appointment of Principal of R.N. College, Pandaul. In that sense the petitioner may not have any right to appointment, but the question is not only of right, but of status as well. Even if an Ad-hoc appointment is to be made, the appointment of a person junior to the petitioner and on oblique consideration cannot be countenanced. The petitioner was ex-facie senior to respondent no. 3. The petitioner has been acting as Principal since February. 1984. Respondents No. 3 had never legally worked as Principal. There was, therefore, no justification for demoting the petitioner from the rank of Principal/Professor-in-Charge to that of a Reader. The petitioner was ex-facie senior to respondent no. 3. The petitioner has been acting as Principal since February. 1984. Respondents No. 3 had never legally worked as Principal. There was, therefore, no justification for demoting the petitioner from the rank of Principal/Professor-in-Charge to that of a Reader. It is true that the posts of Reader and Principal are in the same scale of pay, but the office of Principal brings about an amount of respectability as head of the institution. It also brings in certain allowances and facilities. If an Ad-hoc appointment is to be made, the senior most must get the Ad-hoc appointment. There is no justification for placing the petitioner below respondent no. 3, if Annexure-1 is not quashed. This must he so for the reason that the appointment of respondent no. 3 also must be held to be Ad-hoc as he has not been appointed in accordance with the Statute. 10. For all the reasons, discussed above, it is obvious that the ORDER :contained in Annexure-1 is malafide in law. It is malafide on fact as well, since it described respondent no. 3 as a person working as Principal which is not correct legally. The ORDER :contained in Annexure-1 thus contravenes the provision of Articles 14 and 16 (2) of the Constitution. The impugned ORDER :must be held to be arbitrary. The application must, therefore, be allowed. 11. In accordance with the findings recorded above, the application is allowed with costs. Hearing fee Rs. 250/- (Rupees two hundred and fifty) payable by each of the respondents 1 and 3. Let a writ of certiorari issue quashing Annexure-1. Annexure-1 having been quashed, the appointment of the petitioner as Principal since 1984 becomes alive. The University wills now pails appropriate ORDER :s in regard to respondent no. 3.