Chandradeo Mahto v. State of Bihar — 1991 DIGILAW 162 (PAT)

JUDGMENT S. B. Sinha, J :- This writ application is directed against an order dated 19.5.1984 passed by the respondent no. 3 and as contained in Annexure-10 to the writ application as also the order dated 15.9.1988 passed by the respondent No. 2 and as contained in Annexure-10 to the writ application. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner was appointed as a lecturer in S. N. Sinha College, Tekari in the District of Gaya on 16.8.1966 and thereafter the petitioner joined in R, Lal College Alinagar (Nalanda) as Acting Principal on 27.6.1979 An advertisement was issued which is contained in Annexure-l to the writ application, whereby and whereunder applications were invited for fil1ing up the post of Principal in R. Lal College, Alinagar (Nalanda). The petitioner being qualified to hold that post submitted an application. The University Service Commission recommended the name of the petitioner on 5.2.80 and in terms thereof the Governing body of the aforementioned College appointed the petitioner as Principal thereof on or about 28.7.1980. 4. The petitioner joined as the Principal of the aforementioned college on 27.8.1980. 5. By an order dated 28.11.1980, the Vice-Chancellor of the Magadh University disapproved the appointment of the petitioner, inter alia on the ground that the petitioner was not qualified to hold the said post as he did riot secure 52. 5% marks and thus he does not possess a high second class Degree in M. A. The petitioner challenged the aforementioned decision dated 28.11.1980 of the respondent no. 3 in this court by filing a writ application which was registered as CWJC No. 3353 of 1980. By reason of a judgment dated 28.4.1981, as contained in Annexure-6 to the writ application a Division Bench of this court allowed the aforementioned writ petition inter alia on the ground that at the relevant time the aforementioned R. Lal College, Alinagar had obtained the affiliation only upto Intermediate Standard and thus the respondent no. 3 had no jurisdiction to pass an order disapproving the appointment of the petitioner, in view of the fact that the said matter was within the jurisdiction of the Bihar State Intermediate Council. 6. 3 had no jurisdiction to pass an order disapproving the appointment of the petitioner, in view of the fact that the said matter was within the jurisdiction of the Bihar State Intermediate Council. 6. It was further held that so far as the appointment of the Principal in a College which was to be affiliated by the Bihar State Intermediate Council is concerned, the approval has to be given by the Council and not by the University. 7. The judgment of this court was challenged in the Supreme Court of India but the application for grant of Special Leave being S. L. P. (Civil No. 7607 of 1986 was dismissed by an order dated 7.12.1981. 8. On or about 1.12.1981 the College was upgraded as degree college with retrospective effect. 9. However, it may be mentioned that pursuant to the judgment of this court on 28.4.1981 (Annexure-6) the Bihar State Intermediate Conned did not take any action and in view of the fact that the col1ege was upgraded to the Standard of degree college, it lost its control over the said institution. 10. On 29.2.1984 the Governing body adopted a resolution for relieving the petitioner from the services inter alia on the ground that he did not possess the qualification for holding the post of a Principal of a degree college. 11. The College Service Commission however on 28.4.1984 refused to grant approval to the resolution aforementioned by an order as contained in Annexure-8 to the writ application. 12. However. by reason of the impugned dated 19.5.1984 as conta1ned in Annexure-9 to the writ application order the respondent no. 3 purported to have held that in view of the ex-post-facto affiliation of the said college by' State of Bihar up to the degree standard, the earlier order of the Vice-Chancellor dated 23.11.1980 (Annexure-5) shall become operative. The petitioner thereafter preferred an appeal before the respondent no. 2 and by reason of the impugned order dated 15.5.1938 as contained in Annexure-10 to the writ application, the respondent no. 2 dismissed the said appeal of the petitioner. 13. Mr. S.P. Mukherjee, the learned Sr. Counsel appearing on behalf of the petitioner has raised a number of contentions in support of this application. 14. 2 and by reason of the impugned order dated 15.5.1938 as contained in Annexure-10 to the writ application, the respondent no. 2 dismissed the said appeal of the petitioner. 13. Mr. S.P. Mukherjee, the learned Sr. Counsel appearing on behalf of the petitioner has raised a number of contentions in support of this application. 14. The learned counsel submitted that the impugned orders as contained in Annexures-9 and 10 to the writ application, in view of the judgment of this court passed in CWJC No. 3353 of 1980 shall operate as res-judicata. 15. The learned counsel further submitted that in any event the respondent no. 3 had no jurisdiction in terms of the provisions of the Bihar State Universities Act, 1976 directing removal of the petitioner from the post of the Principal in view of the fact that University Service Commission had recommended the case of the petitioner for his appointment in the post of the Principal. It was further submitted that from a perusal of the recommendations of the College Service Commission which are contained in Annexures 12 and 12/A to the writ application, it would appear that a person would be deemed to possess a high second class Masters' degree if he obtains 50% marks and not 52.5% marks. 16. The learned counsel further submitted that in any event appointment of various persons in the pos t of the Principal who have been named in the writ application had been approved by the respondent no. 3, despite the fact that they had not obtained 52.5% marks. 17. Mr. Rafat Alam the learned counsel appearing on behalf of the University, on the other hand, submitted that the judgment of this court passed in the earlier writ application and as contained in Annexure-6 to the writ application shall not operate as res-judicata as that writ petition was allowed subject to the condition that the Bihar State Intermediate Council would grant requisite approval in relation to the appointment of the petitioner. 18. According to the learned counsel in view of the event which took place subsequently to passing of the judgment of this court, meaning thereby the ex-past-facto affiliation of the college upto the degree standard by the State, the respondent no. 18. According to the learned counsel in view of the event which took place subsequently to passing of the judgment of this court, meaning thereby the ex-past-facto affiliation of the college upto the degree standard by the State, the respondent no. 3, became the only competent authority to pass the order of approval with regard to the appointment of the petitioner and in that view of the matter It cannot be said that the impugned order was illegal or without jurisdiction. 19. Mr. Alam, appears to be correct. 20. In view of the subsequent event which took place by reason of ex-post-facto affiliation the college in question, the Bihar State Intermediate Council lost its jurisdiction in respect of the college in question and thus the question of complying with the direction of the court in CWJC No. 3353 of 1980 (Annexure-6) did not arise. In such a situation, therefore, the respondent no. 3 only had the jurisdiction to consider the matter relating to grant of approval of the appointment of the petitioner. 21. In this view of the matter, I am of the opinion that the judgment of this court dated 28.4.1981 as contained in Annexure 6 to the writ application shall not operate as resjudicata. 22. However, from a perusal of the impugned order as contained in Annexure-9 to the writ application it is evident that the respondent no. 3 purported to have held that this court in its judgment dated 28.4.1981 merely stayed the order dated 28.11.1980 (Annexure5). The respondent no.3 failed to take into consideration that in fact by reason of the said judgment the order dated 28.11.l980 passed by respondent no.3 and as contained in Annexure 5 to the writ application was quashed inter alia on the ground that he had no jurisdiction to pass the said order at the relevant time. 23. In terms of the judgment aforementioned, therefore, the order dated 28.11.1980 became non-est in the eye of law. The said order having been passed by the then Vice-Chancellor without any authority or jurisdiction, was a nullity. Thus the said order could not be made operative with retrospective effect only because of the subsequent event namely ex-past-facto affiliation of the college upto degree standard and thus must be held to be wholly illegal and without jurisdiction. 24. As the earlier order passed by the respondent no. Thus the said order could not be made operative with retrospective effect only because of the subsequent event namely ex-past-facto affiliation of the college upto degree standard and thus must be held to be wholly illegal and without jurisdiction. 24. As the earlier order passed by the respondent no. 3 dated 28.11.1980 was quashed by this court, the only course open to the respondent no. 3 was to pass a fresh order upon applying his mind to the facts and circumstances of the case afresh. In doing so, the respondent No.3 was not only bound to take into consideration as to what would constitute a high second class Masters Degree keeping in view of Annexures-12 and 12/A aforementioned, but he will also be bound to consider another subsequent event namely that in the meanwhile the petitioner has also obtained of a Master Degree in Pali having been placed in the 1st Class. Thus, assuming that at that point of time, the petitioner was not having the requisite qualification to hold the post of Principal of a degree college, but he having acquired the said qualification subsequently, it may be considered by the Vice-Chancellor that approval of the appointment of the petitioner may be granted by regularising the irregularity. 25. It may be mentioned that in some of the recent decisions, the Supreme Court has also considered the effect of holding of a post continuously for a few years by a person which may be a sufficient ground to direct the concerned authorities to grant approval of the appointment of a person who did not have the requisite qualification therefor. 26. Reference in this connection may be made to Miss Shainda Hasan v. State of Uttar Pradesh and others reported in AIR 1990 Supreme Court page 1381 and in Shrawan Kumar Jha v. State of Bihar reported in 1991 S. C. page 309 : 1991 (1) PUR 68 (SC)] the Supreme Court was considering the cases of the illegal appointment of the petitioners thereof but despite the same directed that in the facts and circumstances thereof the petitioners services should not be terminated without complying with the principles of natural justice. The Supreme Court recently in H.C. Puttaswamy and others vs. the Hon'ble Chief Justice of Karnatka reported in 1991 S.C. page 295 : 1991 (2) PLJR 77 (SC) wherein it relied upon earlier decision in Miss Shainda Hasan v. State of Uttar Pradesh and others reported in 1990 S.C. page 1381 as well as other decisions held that even in case of illegal appointments, the same shall not be terminated, if the employees have put in service for a number of years. 27. It is, therefore, expected that the respondent no. 3 while passing a fresh order may also keep the decisions of the Supreme Court aforementioned in mind. 28. Taking, thus all facts and circumstances into consideration it must be held that the impugned orders cannot be sustained. 29. In the result, this application is allowed, the impugned orders as contained in Annexures-9 and 10 to the writ application are quashed and the respondent no. 3 is directed to consider the entire matter in the light of the observations made hereinbefore expeditiously and in accordance with law. 30. However, in the facts and circumstances of the case, there will be no order as to costs. 31. Before parting with the case, it may be mentioned that the petitioner if he so likes may file a representation before the respondent no. 3 who shall take the same into consideration and pass an order expeditiously and preferably within a period of three months from the date of the receipt of a copy of this order.