Ram Sewak Singh v. State Of Bihar — 1988 DIGILAW 231 (PAT)

Judgment S. B. Sinha, J. 1. This writ petition is directed against the resolution dated 9-12-1984 adopted by the syndicate of the Lalit Narain Mithila University, darbhanga as contained in Annexure 12 to the writ petition and the order of the syndicate communicated to the B. M. A. College, Baheri by the Registrar of the said university by his letter dated 24-1-1985 as contained in Annexure 13 to the writ petition as also the order of the Chancellor communicated to the Vice-Chancellor of the L. N. Mithila University by the officer on special duty to the governor of Bihar dated 9th December, 1985 as contained in Annexure 14 to the writ petition. 2. The facts of the case lie in a very narrow compass. 3. On or about 5-3-1981 the petitioner was allegedly appointed in the second sanctioned post of the lecturer in Economics by the governing body of b. M. A. College, Baheri in the district of Darbhanga, which was at the relevant time affiliated with the Lalit Narain Mithila University, Darbhanga. The matter relating to the appointment was sent to the Bihar State Bar counsil under certificate of posting as prior to that he was a practicing lawyer as also an information was giving to the Secretary Bar Association, Laheriasarai. The said communications are contained in Annexures 3 and 4 to the writ petition. 4. By a resolution dated 23-3-1981 the Managing Committee of the aforementioned college confirmed the petitioners services, the minutes whereof is contained in Annexure 5 to the writ petition. With effect from 2-5-1981 the aforementioned college became a constituent unit of the University. The petitioner has asserted that his name was submitted by college to the university showing therein that he had been occupying the post of lecturer in Economics being the second sanctioned post therefor. On or about 5-8-1981 the said post was approved by the State of Bihar by a letter bearing No.1333. 5. By a letter dated 26-1-1982, as contained in Annexure 6, to the writ petition, the university asked the petitioner to appear for interview for appointment in the post of lecturer in Economics. The petitioner appeared before the interview board on 28-2-1982. It has, however, been stated that the case of the petitioner for permanent absorption in the service is still pending along with the cases of the other temporary lecturers of the university. 6. The petitioner appeared before the interview board on 28-2-1982. It has, however, been stated that the case of the petitioner for permanent absorption in the service is still pending along with the cases of the other temporary lecturers of the university. 6. By a letter datted 11-8-1982, however, the university directed the principal of the college to pay the salary to the petitioner. The said letter is contained in Annexure 7 to the writ petition. 7. The petitioner has asserted that by a letter bearing No.22026 dated 26-11-1982 and supplementary list of the teachers for permanent absorption after recommendation of the selection committee was sent to the university. The petitioner has contended that his name figure in the said list also. 8. However, the university in its counter affidavit as would appear from paragraph 2 of the petitioners reply to the counter affidavit filed on behalf of the university, the respondent No.6, it appears that, filed a representation before the chancellor for payment of his salary on 3-6-1983, which is contained in Annexure-8 to the writ petition. 9. By a letter dated 25-6-1983 as contained in Annexure 9 to the writ petition the proctor of the university asked for the comments of the petitioner relating to the representation filed by the respondent No.6 before the Chancellor, which the petitioner did by his letter dated 12th July, 1983. The said letter is contained in Annexure 10 to the writ petition. 10. On 18-6-1984, however, the Inspector of the colleges submitted a report. The Inspector allegedly made the inspection of the colleges with a view to find the cause of deterioration in the academic atmosphere of the said college. In course of the said inspection, the Inspector of the colleges examined the cases of the petitioner, respondent No.6 and one Uday Chandra Mishra. The said inspection report is contained in Annexure 11 to the writ petition. In the said report it was, inter alia, stated that the signature of the petitioner is not available in the attendance register maintained for the temporary lecturers of the cellege. It has further been mentioned that the petitioner was a practicing lawyer at Laheriasarai court during the period the second appointment is shown to have been made. 11. In the said report it was, inter alia, stated that the signature of the petitioner is not available in the attendance register maintained for the temporary lecturers of the cellege. It has further been mentioned that the petitioner was a practicing lawyer at Laheriasarai court during the period the second appointment is shown to have been made. 11. The petitioner, however, in his reply to the counter affidavit submitted that the inspectors report is merely a table work and while preparing the same neither any opportunity was given to the petitioner nor he examined the records of the college. The petitioner has also annexed a photostate copy of the attendance register and has marked the same as Annexure 7 to the rejoinder. 12. The syndicate of the university in its meeting dated 9-12-1984 confirmed the Inspectors report. The said resolution of the syndicate dated 9-12-1984 is contained in Annexure 12 to the writ petition. Pursuant to the said resolution of the syndicate the Vice-Chancellor stopped payment of the petitioner and withdrewn his previous approval by a letter dated 24-1-1985 addressed to the Principal of the college. The said letter is contained in Annexure 13 to the writ petition. 13. The petitioner, thereafter, filed various representations before the chancellor wherein the petitioner inter alia referred to the letter No.2206 dated 26-11-1982 whereby the university has sent supplementary list to the Chancellor after the recommendations of the selection committee. By an order dated 9-12-1985, however, the Chancellor rejected the said representation. 14. In their counter affidavits, the respondents No.3 and 4 as also the respondent No 6 contended that at the point of time when the petitioner was purported to have been appointed the was a practicing lawyer. According the said respondents, the petitioner had not worked even for a single day in the college and as such the question of approval of his services by the Vice-Chancellor did not arise and as such he withdrew the same by the order as contained in annexure 13 to the writ petition. The respondents have further contended that during the period in which the petitioner was allegedly appointed, there was a complete ban of appointment by the State Government and as such the appointment of the petitioner is a nullity. 15. The respondents have further contended that during the period in which the petitioner was allegedly appointed, there was a complete ban of appointment by the State Government and as such the appointment of the petitioner is a nullity. 15. It appears that by a letter dated 6-9-1980 as contained in Annexure a to the counter affidavit filed on behalf of the respondent Nos.3 and 4 the principals of the various colleges were directed to send the resolution of the examining body relating to the terms and conditions of teaching and/or non-teaching staff and to send requisite information in the prescribed pro forma. However, from a perusal of the said counter affidavit the name of the college in question do not appear. 16. It has further been contended by the respondents that as per the said purported letter a panel prepared by the selection committee and a copy oi the certificate granted by the Principal with regard to the working ol the teacher and that of the respondent No.6 was sent, the same are contained in Annexures b and c to the counter-affidavit. 17. It has further been asserted that the petitioner although appeared for interview in terms of the letter of the university dated 22-1-1982, on 28-2-1982 as his name was not included in the list of teachers sent by the college, the vice-Chancellor has withdrawn the order whereby and whereunder the services of the petitioner was approved. 18. It has further been alleged that by a letter dated 16-8-1983 the petitioner was asked to give explanation relating to the certain allegations levelled against him by the respondent No.6. The said letter is contained in annexure e to the counter-affidavit. 19. According to the respondents, the petitioner did not send any reply to the said letter at all. It has further been asserted that the university appointed the Inspector of colleges for verifying the matter as the whether the petitioner is continuing in the legal profession or as to whether he was validly appointed on 5th March, 1981. In this connection the respondents have also annexed a certificate granted by the Bihar State Bar Council (Annexure f) for the purpose of showing that the petitioner during that period was actually practicing as a lawyer. 20. The petitioner in his rejoinder to the aforementioned counter-affidavit, as mentioned hereinbefore, annexed the copies of the attendance registers. In this connection the respondents have also annexed a certificate granted by the Bihar State Bar Council (Annexure f) for the purpose of showing that the petitioner during that period was actually practicing as a lawyer. 20. The petitioner in his rejoinder to the aforementioned counter-affidavit, as mentioned hereinbefore, annexed the copies of the attendance registers. The petitioner has also annexed a copy of the marks sheet of the respondent No.6 for the purpose of showing that he did not secure a high second class in his M. A. Examination. The said marks sheet is contained in Annexure 16 to the writ petition. The petitioner has also denied the other allegations made in the counter affidavit file on behalf of the university as also by the respondent No.6. 21. Mr. B. C. Ghose, the learned counsel appearing on behalf of the petitioner, submitted that once the appointment of the petitioner was approved the Vice-Chancellor of the university could not have recalled the same as he has no power of review. The learned counsel has further submitted that it is no bodys case that the petitioner does not satisfy the conditions of appointment. It has further been submitted that in any event it would be evident that the resolution of the syndicate as contained in Annexure 12 to the writ petition was adopted solely on the basis of the report submitted by the Inspector. Not only the said report was a false one as the petitioner had signed the attendance registers but also sent the necessary intimation to the Bar Council regarding his appointment as lecturer in the college but while passing the impugned order it has not been taking into consideration that in the second list supplied to the university the petitioners name was also included. 22. According to the learned counsel, the respondent No.6 being not passed a high second class degree, he was not eligible for appointment at all. In this connection, the learned Counsel has relied upon Dr. J. P. Kulshrestha v. Allahabad University and others, AIR 1980 SC 2141 . 23. 22. According to the learned counsel, the respondent No.6 being not passed a high second class degree, he was not eligible for appointment at all. In this connection, the learned Counsel has relied upon Dr. J. P. Kulshrestha v. Allahabad University and others, AIR 1980 SC 2141 . 23. The learned counsel has further submitted that in view of the fact that the second list is in the custody of the university, it was essential for them to file the said documents before the Chancellor so as to enable him to take the same into consideration before the impugned orders, as contained in Annexures 13 and 14 to the writ petition, were passed. In this connection, the learned counsel has drawn my attention the recent decision of the Supreme Court reported in National Insurance Co. Ltd. , New delhi V/s. Jugal Kishore and others, 1988 Vol.1 SCC 626 wherein it has been held as follows : - "it is the duty of the party which is in possession of a documents which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under the obligation to act fairly. Therefore, in all such cases where the insurance company concerned wished to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. " 24. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that the petitioner, by reason of the letter as contained in annexure 7 to the writ was not permanently absorbed and, therefore, did not acquire any legal right to continue to hold the said post. According to the learned counsel, therefore, the petitioner has not derived of legal right to continue in the said post. 25. It was further submitted that in the list prepared by the selection committee, which had been substituted in place of Bihar Public Service Commision, the name of the petitioner does not figure and in that view of the matter the question of his appointment did not arise at all. 26. 25. It was further submitted that in the list prepared by the selection committee, which had been substituted in place of Bihar Public Service Commision, the name of the petitioner does not figure and in that view of the matter the question of his appointment did not arise at all. 26. The learned counsel has further submitted that in terms of Sec.58 of the Bihar State Universities Act, 1976, a teacher must be appointed in accordance with the procedure laid down thereby. It was further submitted by the learned counsel that the respondent No.6 was appointed in the year 1979, whereas the petitioner was appointed in the year 1981 and at the time of his appointment there was a complete ban for such an appointment and in this view of the matter, ; the purported order of the appointment of the petitioner in the said college was absolutely illegal. It was further submitted that in any event as the petitioner was not selected by the selection committee, he could not have been considered for appointment/ absorption in the college question. 27. The learned counsel appearing for the petitioner, on the other hand, submitted that the appointment of the respondent No.6 was not Confirmed by the governing body nor did he have the requisite qualification therefor. It was further submitted that although various other teachers, who were similarly situated have been allowed to work, the petitioner has been denied the said right and as such the petitioner has been discriminated against. In this connection my attention was drawn to the case of Uday Mishra, whose name appeared at serial No.5 in the university letter dated 23-3-1981 along with the petitioner and as contained in Annexure 5 to the writ petition. According to the petitioner, Sri Uday Mishra is allowed to continue to serve the college, although he is also similarly situated. 28. In view of the order proposed to be passed by me it is not necessary to dwell upon the rival contentions of the parties, as referred to hereinbefore, in details. 29. The learned counsel for the parties did not and could not contend that the petitioner or for that matter the respondent No.6 had been appointed in terms of the provisions of the Bihar Universities Act. 30. 29. The learned counsel for the parties did not and could not contend that the petitioner or for that matter the respondent No.6 had been appointed in terms of the provisions of the Bihar Universities Act. 30. However, the respondent-university did consider the case of the petitioner or the respondent No.6 for regulation of their appointment in the second sanctioned post. 31. From the facts, as stated hereinbefore, to me it appears that the case of the petitioner vis-a-vis the respondent No.6 require a fresh consideration at the hands of the authorities. 32. It is surprising to note that the university had prevaricated its stand from stage to state. If it contends that the petitioner was appointed illegally and further did not work in the college nor his name was applied to the university, it does not stand to reason as how and why the petitioner was called to face the interview board set up by the university in terms of its letter dated 26-1-1982. The very fact that the petitioner was called to face the inverview board and in fact he did face it and only pursuant thereto the Vice-Chancellor had issued the letter dated 11-8-1982 as contained in Annexure 7 to the writ petition, clearly goes to show that there were some records before the university showing that the petitioner had been working in the college in question. At this juncture it would also be pertinent to note that the university had an opportunity to produce the letter whereby and whereunder the petitioners name was sent to the university-authorities by rsason of a supplementary list but the same has not been produced. The said letter must be in possession of the university. In such a situation, it was obligatory on the part of the university to disclose even before this Court as to whether the name of the petitioner figures in the said supplementary list or not. For the reasons best known to it, the university not only keeps mum in respect of that letter but merely contends that the name of the petitioner does not figure in the list contained in Annexure b to the counter affidavit. 33. The university being a state within the meaning of Article 12 of the constitution is expected to act fairly and reasonably. 33. The university being a state within the meaning of Article 12 of the constitution is expected to act fairly and reasonably. It, being a State, is to be governed by the rule of law and not by the rule of men. 34. The university further has failed to point out in the counter affidavit as to under what circumstances the Inspector of the colleges was directed to enquire into the allegations made by the respondent No.6 against the petitioner as it appears from the stand of the university in its counter affidavit. 35. From the report of the Inspector of Colleges as contained in Annexure 11 to the writ petition, it becomes evident that he inspected the college in question regarding deterioration of academic atmosphere pursuant to the order of the vice-Chancellor and not for the reasons as stated in the counter affidavits. The university for the reasons best known to it has not even produced the aforementioned order of the Vice-Chancellor before this Court in order to enable it to see as to whether the inspection was made pursuant to the order of the vice-Chancellor relating to the allegations made by the respondent No.6 against the petitioner or not. 36. Apparently, however, it does not appear that the Inspector of Colleges was asked by the Vice-Chancellor of the university to hold enquiry relating to the allegations made by the respondent No.6 against petitioner. The respondents further have not denied the statement made by the petitioner to the effect that the inspection was not made in his presence. It is also not the case of the university that the syndicate and/or Vice-Chancellor called for any explanation from the petitioner with reference to the report of the Inspector of Colleges before the impugned order as contained in Annexure 13 to the writ petition was passed. The petitioner, therefore, was not given an opportunity of being heard in the matter by the university authorities. 37. Had such opportunity be given to the petitioner, he could have shown that not only he had been signing the attendance registers as he had shown before this court by annexing a copy thereof (Annexure 17), but also that he gave necessary intimations about his suspension of practice from the legal profession to the Bihar State Bar Council as also the Secretary of the Laheriasarai Bar Association. 38. 38. The syndicate while purporting to approve the Inspectors report, has based its resolution solely on the said report itself. In such a situation, in my opinion, there has been a flagrant violation of the principles of natural justice. 39. In this situation, I have no other opinion but to direct the Vice-Chancellor to hold an enquiry himself and pass a speaking order after collecting necessary informations in this regard. The Vice-Chancellor, if he so advised, can depute a competent officer for collecting information and/or documents from the college in question, who shall also give an opportunity to the petitioner as also the respondent No.6 to peruse the same and take extract therefrom. The Vice-Chancellor, in the facts and circumstances of the case, shall also give an opportunity of personal hearing to the petitioner and the respondent No.6. 40. Before parting with the case, I may mention that I do not find any merit in the contention of Mr. Ghose to the effect that by passing the impugned order dated 24-1-1985 as contained in Annexure 13 to writ petition, the vice-Chancellor has reviewed his order dated 11-8-1982 as contained in Annexure 7 to the writ petition. The order dated 11-8-1982 was not quasi judicial in nature but was merely an administrative order. In any event, even the said letter contains a conditions to the effect that if at a later stage any information is received by the Vice-Chancellor that the petitioners appointment was sought to be regularised on the basis of wrong information supplied to him it would be open to him to amend its decision and to take action against the person, who had furnished such wrong information and/or the person affected thereby. 41. In view of the admitted fact that after the aforementioned order dated 11-8-1982 was issued, the respondent No.6 filed a representation before the respondent No.2 and as such it was open to the Vice-Chancellor to consider the effect thereof and pass an appropriate order in that regard in order to come to a conclusion as to whether the said letter dated 11-6-1982 as contained in Annexure 7 to the writ petition had been issued on the basis of the wrong information supplied to him or not. 42. It is well known that any authority is entitled to rectify a mistake committed by him. Such rectification of mistake does not amount to an order of review. 42. It is well known that any authority is entitled to rectify a mistake committed by him. Such rectification of mistake does not amount to an order of review. 43. So far as the contention of the learned counsel appearing for the respondents to the effects as to whether the petitioner and/or for that matter the respondent No.6 was validly appointed or not is concerned, the same shall also be considered by the Vice-Chancellor. 44. However, it may be mentioned that the minimum qualification prescribed for appointment of a lecturer in the pay-scale of Rs.700-40-1100-50-1300/-Assessment-50-1600 is as follows : " (a) A consistently good academic record with 1st or high second class at the Masters Degree, in the relevant subject, or an equivalent degree of a foreign University, and (b) a M. Phill. Degree or a recognised degree beyond the Masters level or published work indicating the capacity of a candidate or independent research work : provided that if a candicate possessing the qualification as at (b) above is not available or not considered suitable, the college, on the recommendation of the Commission, may appoint a person possessing a consistently good academic record on the condition that he will have to obtain a M-Phill Degree or a recognised Degree beyond the masters level within five years of his appointment, failing which he will not be able to earn future increments till he obtained that degree or gives evidence of equivalent published work of high standard. " 45. Plainly enough, at the relevant time the possession of a high second class at the Master Degree was a pre-requisite for an appointment in the said post. However, it may be mentioned that the aforementioned statute has since been amended as it appears from circular, dated 17th August, 1987 which has been forwarded to all concerned by the Deputy Secretary to the Governor, Bihar by Memo No.23088-187, dated 13-1-1988. 46. The respondent No.3 shall also take into consideration the effect of the purported ban imposed in the matter of appointment of lecturer at a point of time when the petitioner was appointed and further as to whether during that time other lecturers were also appointed in the college in question and/or in other colleges and the decision of the university taken in relation to the teachers, who are similarly situated to that of the petitioner. 47. 47. I hope and trust that the respondent No.3 shall decide the question of appointment of the petitioner vis-a-vis the respondent No.6 and /or the other eligible candidates in the second sanctioned post of lecturer in Economics in the aforementioned college after taking into consideration all the relevant facts and without being prejudiced in any manner by the stand taken by the university in its counter affidavit before this Court. 48. With the observations and directions, as mentioned hereinbefore, this writ petition is hereby disposed of. 49. In the facts and circumstances of the case, there, will, however, be no order as to costs. Decided accordingly.