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Patna High Court · body

1993 DIGILAW 148 (PAT)

Pramod Kumar v. Bihar University

1993-04-02

I.P.SINGH, N.PANDEY

body1993
ORDER In both these applications, the petitioners are claiming appointment against Class III and IV Posts of Munshi Singh College, Motihari. Both the applications were heard together and with the consent of the parties, they are being disposed of by a common order at the stage of admission itself. 2. In CWJC No. 4649 of 1991, there are seven petitioners who have prayed for a direction to the Respondents to regularise their services against the posts they have been working on daily wages. As per the decision of the Department of Human Resources, State of Bihar, issued vide notification no. 994 dated 11.7.1989, all the appointments made by the Principal of the College on different dates with effect from 26.8.1974 till 4.7.1986 were to be regularised. Their grievance is although they have continuously worked in the College but they are getting only daily wages at the rate of Rs. 25.50 per day where as other class IV employees employed in the College subsequent to the petitioners discharging similar duties, are getting all the benefits of regular employees. 3. In CWJC No. 6105 of 1992 there are 19 petitioners. They have prayed for quashing the order issued under memo no. 159/DR (9) dated 27th June, 1992. by the Registrar of the respondent University communicating the decision of the Vice-Chancellor. cancelling their appointments made by the University vide memo no. 13/7.307 dated 18.4.1990. By the said memo it has also been indicated ‘that the Vice’ Chancellor has been pleased to direct the Principal of the College to examine the claim for regularisation of services of the employees who are working against sanctioned posts of non-teaching staff on the basis of appointments made by the Principal of the College The aforesaid memo has been marked as Annexure 25 to the Writ application. 4. Admittedly, under the direction of the then Vice Chancellor, Class III and IV posts of tile College were advertised inviting applications for appointment on direct recruitment basis in response to the advertisement the ‘petitioners of this' writ application as well as petitioner nos. 1 to 4 and 6 of the other writ application, along with others applied for appointment. Under the orders of the Vice Chancellor, a three-man committee was constituted for selecting, candidates. Before the date of interview one of the members of the Committee namely. Deputy Registrar of the University expressed his inability to participate to the interview. 1 to 4 and 6 of the other writ application, along with others applied for appointment. Under the orders of the Vice Chancellor, a three-man committee was constituted for selecting, candidates. Before the date of interview one of the members of the Committee namely. Deputy Registrar of the University expressed his inability to participate to the interview. Therefore in his place by the order of the Vice Chancellor, coordinator, College Development Council, a person holding higher post to the Deputy Registrar, was nominated. On 14.2.1990, the interview was held wherein the petitioners as well as petitioner nos. 1 to 4 and 6 of the other writ application appeared. The Selection Committee prepared a merit list and recommended names before the Vice-Chancellor for appointment. Thereafter, on 18.4.1990, the Vice Chancellor in exercise of his power vested under section 10 (6) of the Bihar State Universities Act (hereinafter referred to as the Act) appointed 20 persons against class III and IV posts of the College. Consequently, the petitioners submitted their joining before the Principal of the College, which was accepted on 19.4.1990. The name of the petitioner nos. 1 to 4 and 6 of the other writ application was not included in the merit list. In the meantime, on 10.7.1990, the Professor Incharge (respondent no. 4) issued office order, stopping salary of the petitioners and directed that the employees who were working earlier against such posts on daily wages as on 17.4.1990, that is, before regular appointment of the petitioners, will be allowed to function. The petitioners being aggrieved filed several representations before the Chancellor as well as the Vice-Chancellor against the impugned order, but no relief was granted. Ultimately, they moved this court in CWJC No. 6592 of 1990 wherein a counter affidavit was filed by the respondent University, intimating that an inquiry is being conducted by the University in the matter relating to the appointment of class III and IV employees of the College. On 16.5.1991, the writ application was disposed of with an observation that until final decision is taken by the University on inquiry report, the salary of the petitioner& shall be paid. It was further observed that all the affected persons including the petitioners as also the intervenors shall be heard. On 16.5.1991, the writ application was disposed of with an observation that until final decision is taken by the University on inquiry report, the salary of the petitioner& shall be paid. It was further observed that all the affected persons including the petitioners as also the intervenors shall be heard. It appears from various facts placed before us that after close of the inquiry the committee submitted its report dated 14.4.1992 that the appointment of the petitioners was made in contravention of the Government decision dated- 11.7.1989 wherein it was mentioned that vacancies against non-teaching posts in the College would be made by regularisation of the persons who were engaged on daily wages upto 16.5.1986. The other objection of the Committee was that no sanction or the State Government, as provided under section 35 of the Act was obtained. The Committee Was also of the view that on the College Notice Board applications were invited against 14 posts of non-teaching employees whereas in the advertisement, published in the local newspaper, applications were invited for appointment against 11 posts. Considering the inquiry report, the Vice-Chancellor cancelled the appointment of the petitioners. 5. Dr. Sadanand Jha, learned counsel for the petitioners In CWJC No. 6105 of 1992. contended that although the appointment of the petitioners was made after following all the requisite criteria, respondent Vice Chancellor under the influence of daily wage employees, including the petitioners of CWJC No. 4649 of 1991, got the matter enquired into by the persons who had vested interest and even without giving reasonable opportunity to the petitioners, as also withholding the inquiry report, by the impugned order, cancelled the appointment of the petitioners. According to him from the impugned order itself it would appear that the main purpose for cancelling the appointment of the petitioners was to Regularise the services of daily wages employees. He contended admittedly the College in question was made a constituent unit of the University in the year 1970. As per section 10(6) of the Act as also under the relevant service statute of the University, the Vice-Chancellor is the only competent authority to make appointment of non-teaching staff of a constituent College. Admittedly, the appointment of daily wage employee including the petitioners of CWJC No. 4649 of 1991 were made by the Principal of the College on different dates in between 26.8.1974 to 4.7.1986. Admittedly, the appointment of daily wage employee including the petitioners of CWJC No. 4649 of 1991 were made by the Principal of the College on different dates in between 26.8.1974 to 4.7.1986. In the view of the matter, it is urged that the decision of the Vice-Chancellor for taking steps of regularization of non-teaching staff of the College is completely illegal. He urged, by an executive action of the State authority, the statutory provision for making appointment of the employees of the constituent college cannot be made in-effective. In support of his submission, he relied upon the case of (Sic-Paluru Ramkrishna vs. Union of India, (1989) 2 SCC) 6. It has been further contended that most of the college employees including petitioner nos. 1 to 4 and 6 of CWJC No. 4649 of 1991 having applied for appointment pursuant to the advertisement as contained in Annexure 2 and taken part in the interview and failed, cannot be allowed to question tile process of selection and the decision of the Vice-Chancellor is appointing the petitioners against the post in question. In support of his contention, be has placed reliance on the following decisions reported in the case of Sardara Singh and others v. State of Punjab and others AIR 1991 SC 2248 , and Kamal Kumar Sinha as. Indira Gandhi Institute of Medical Sciences, Shekhpura Patna & ors. 1990 (2) PLJR 463. 7. He next contended that the impugned order is also bad as no inquiry report was supplied to the petitioners. Therefore it is urged that the impugned order which is on the basis of such report is wholly illegal and void. In supports of this contention, he has placed reliance over a decision of the case of Union of India & ors. v. Mohd. Ramzan Khan AIR 1991 SC 471 . 8. Mr. Jha further contended that the decision of the Vice-Chancellor for making appointment on regular basis after advertising the posts was earlier challenged before this Court through several writ applications including one in CWJC No. 923 of 1990 In which petitioner no. 7 was also one of the petitioners. v. Mohd. Ramzan Khan AIR 1991 SC 471 . 8. Mr. Jha further contended that the decision of the Vice-Chancellor for making appointment on regular basis after advertising the posts was earlier challenged before this Court through several writ applications including one in CWJC No. 923 of 1990 In which petitioner no. 7 was also one of the petitioners. All the writ applications were heard and dismissed by this Court, Therefore, it has been urged that at this state it is not open been urged that at this stage it is not open to the petitioners of CWJC No.4649 of 1991 or the respondents University to challenge those decisions of the then Vice-Chancellor. It is stated that petitioner no. 7 of CWJC No. 4649 of 1991 has suppressed this fact in the writ application. Therefore on this ground atone the writ application is fit to be dismissed. In support of this submission, he has placed reliance upon the decision in she case of Rita Mishra and others vs. Director, Primary Education, Bihar and others, 1987 PLJR 1090 . 9. Mr. Shyama Prasad Mukherji, learned counsel for the petitioner in CWJC No. 4649 of 1991 submitted that on enquiry, the committee which was duly appointment by the Vice Chancellor, found that the process of regular appointment of the petitioners of CWJC No. 6105 of 1992 was not in accordance with the statutory provision. He further contended that the State Government being the competent authority had already communicated its decisions vide letter dated 11.7.1989 that the non-teaching employees of the College engaged upto 10.5.1986 hall be regularised against the available vacancies. Therefore, the appointment of the petitioners by the Vice Chancellor was illegal and without jurisdiction. He further contended that the Deputy Registrar of the University who was one of the members of the Selection Committee had declined to participate in the interview. There- fore, in his absence, no valid selection could take place. When all these infirmities were brought to the notice of the Vice-Chancellor, he having full authority, constituted It Committee to hold an inquiry with respect to the irregularities in process of selection for appointment of non-teaching staff of the College. 10. According to Mr. There- fore, in his absence, no valid selection could take place. When all these infirmities were brought to the notice of the Vice-Chancellor, he having full authority, constituted It Committee to hold an inquiry with respect to the irregularities in process of selection for appointment of non-teaching staff of the College. 10. According to Mr. Mukherjee although the engagement non-teaching staff on daily wages were not made by the competent authority in view of the decisions of the Government to regularize such appointments the Vice-Chancellor had no option but to proceed in accordance with the decision of the Government and to regularise their service. In support of his contention, he has placed reliance over the case of H.C. Puttaswamy and ors Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others AIR 1991 SC 295 . It would be appropriate to quote the relevant finding from paragraph 14 of the said judgment as below- "The principal was over-aged for appointment but she was given use relaxation which was held to be arbitrary. Yet the Court has declined to strike down her appointment. On the contrary, the Chancellor was directed to grant the necessary approval for her appointment with effect from the date she was holding the post of the principle in the college seems to be the only consideration that weighed with this court for giving that relief.” In paragraph 15, their Lordships farther held as follows : “That writ petition was disposed of by a compromise between the Government and petitioners. The Government agreed to appoint those petitioners also. Of those 16 persons, three had not even been called for interview by the Public Service Commission since they were not qualified for interview. But upon appeal, this Court quashed the appointment of twenty four persons selected by the Government and also the appointment of sixteen persons who had filed the writ petition before the High Court and who were appointed on the terms of the compromise. The facts of case are not comparable with the present. Considerations that weighed with this Court also appears to be quite different. 11. The facts of case are not comparable with the present. Considerations that weighed with this Court also appears to be quite different. 11. It was next contended although the appointment of the petitioners of CWJC No. 4649 of 1991 was illegal and without following the prescribed procedure, as they have worked continuously for a long period, in view of the decision of the Supreme Court in the case of Narendra Chadha and others V. Union of India and ors (1962) 2 Supreme Court Cases 157 such a late stage after taking work from them for a quite long, it is not fair to ignore their cases. In this regard relevant findings in paragraphs 14 and 19 of this report are as follows : " But we are faced in this case with the problem of resolving conflicts which have arisen on account of a violent departure made by the Government from the Rules of recruitment by allowing those who were appointed contrary to the, Rules to hold the posts continuously over a long period of time. The question is whether after such a long period it is open to the Government to place them in seniority at place lower than the place held by persons who were directly recruited after they had been promoted and whether it would not violate Articles 14 and 16 of the Constitution if the Government is allowed to do so.” “19. The continuance of these petitioners may be justified on the basis of the above quoted Rule 16 on the assumption that the Government had relaxed the Rules and appointed them to the posts in question to meet the administrative requirements.” In my view, the ratio laid down by the Supreme Court in the aforesaid cases are not applicable to the facts of the present case. We have already notice that their appointment was made by a person who had no authority to do so. Apart from aforesaid, when process of regular appointment was taken up most of the employees although claiming regularisation participated in the process of selection for regular appointment. They having found unsuccessful in the process of direct selection cannot be allowed to question the appointment of direct appointees. Their cases cannot be equated to the cases referred by Mr. Mukherji. 12. Apart from aforesaid, when process of regular appointment was taken up most of the employees although claiming regularisation participated in the process of selection for regular appointment. They having found unsuccessful in the process of direct selection cannot be allowed to question the appointment of direct appointees. Their cases cannot be equated to the cases referred by Mr. Mukherji. 12. Learned Advocates appearing for the respondent University have drawn our attention towards a copy of the inquiry report, Annexure B to the Counter Affidavit to show that only 11 posts of non-teaching employees in the college were sanctioned. The Principal of the College wrongly notified 14 posts on the College Notice Board. It has been further stated that the petitioners of CWJC No. 6105 of 1992 have made baseless allegation against the members of the Inquiry Committee who are senior most Professors of the University. It is further stated that since the Inquiry Committee found several irregularities, committed by the then Selection Committee while making appointment of the petitioners, and others, submitted third report, recommending for cancellation. 13. Mr. Rajendra Prasad Singh, in order to controvert the submission of the learned counsel of the University drew Court attention towards Annexure 19 of the writ application. This is a letter of the Principal of the College dated 5.6.1992 sent to the special Officer (Inspection Science) of the University. In the letter it was pointed out by the Principal that there were altogether 20 vacancies at the time of appointment. 14. On the basis of different materials indicated above, a question arises whether the claim of the petitioners of CWJC No. 4649 of 1991 for their regularisation in the College is justified? According to Dr. Jha, as these petitioners were not appointed in accordance with the statutory provision, they are not entitled for regularisation. There is no dispute that the College in question was made constituent unit of the University in the year 1970. As per Section 10(6) of the Act as also from different provisions of the service statute of the University, the Vice-Chancellor of the University is only competent to appoint a non, teaching staff in any of the constituent College. The engagement of the petitioners was made by the Principal of the College some time between 26.8.1974 to 4.7.1.986. Mr. As per Section 10(6) of the Act as also from different provisions of the service statute of the University, the Vice-Chancellor of the University is only competent to appoint a non, teaching staff in any of the constituent College. The engagement of the petitioners was made by the Principal of the College some time between 26.8.1974 to 4.7.1.986. Mr. Jha has rightly contended that in view of the specific statutory provision for making appointment of non-teaching staff of the College in a particular manner, the State Government of its authorities through executive actions cannot override the statutory provisions. It is well settled that if a particular legislation provides to do a thing in a particular manner, the same cannot be altered of changed through an executive action. Therefore, since the appointment of non-teaching staff of the colleges as indicated above was not made by a proper authority, it is not open to the respondents to regularise their' services on the basis of notification no. 894 dated 11.7.1989 issued by the Department of Human Resources, Government of Bihar. 15. In this connection Mr. Jha rightly placed reliance over a-decision of the Supreme Court in the case of Paluru Ramkrishnaiah and ors. Vs. Union of India and another (supra) wherein it has been noticed that an executive action of the State cannot override the statutory provisions. 16. In view of the facts stated above. I am afraid whether the engagement of the petitioners which was not in accordance with the statutory provisions can be recognised particularly at a stage when the posts were filled up by regular appointment. 17. Apart from what has been stated above, there is no denial that the petitioners 1 to 4 and 6 of CWJC No. 4649 of 1991 had already applied for regular appointment and participated in the selection process. In our view having failed at the selection process, they cannot be allowed to question the process of selection for appointment of the petitioners of other writ application at this stage. In this regard, reference can be made to the case of Sardara Singh & other., v. State of Punjab and others (supra). It would be appropriate to qaote the relevant passage from the aforesaid report as below : "8. Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits. In this regard, reference can be made to the case of Sardara Singh & other., v. State of Punjab and others (supra). It would be appropriate to qaote the relevant passage from the aforesaid report as below : "8. Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits. Therefore, merely because appellants are carrying on the litigation there cannot be any justification to give direction to the government to consider their cases by relaxing the age, qualification for appointment as patwari. It is not in dispute that hundreds of candidates who could not be selected would in that event seek similar relief. Under these circumstances we do not find any cause to add to the selection and appointment of the candidates as Patwaris." Similar view was taken by this court in the case of Kamal Kumar Sinha Vs. Indira Gandhi Institute of Medical Sciences. Shekhpura Patna and ors. (supra). It would be useful to qaote paragraph 15 of the said report hereunder. "15. In any event, in the instant case, the petitioner-did not challenge the constitution of selection Board before the members of the Selection Committee and as such he is estopped and precluded from doing so far the first time in this writ application.” Reference in the connection may also be made to the case of K.R. Bopia v. University of Udaipur and others reported in 1978 Vol. II S.L.R. 200. 18. Besides the facts stated above, it has also to be noticed that one of the writ petitioners, namely Ram Babu Rai filed CWJC No. 923 of 1990 challenging the decision of the Vice Chancellor to fill up the posts on the basis of regular appointment. The matter was heard is detail and a Bench of this Court while dismissing the writ application, rejected the contention raised on behalf of Ram Babu Rai. The said Ram Babu Rai is petitioner no. 7 in CWJC No. 4649 of 1991. In other words, it is apparent that the prayer of regularisation similar to the present one has already been rejected by this Court. In that view of the matter, it has rightly been urged that the decision of the then Vice Chancellor for making regular appointment in a sense was approved. No such Government has been made by Ram Babu Rai in the present writ application. In that view of the matter, it has rightly been urged that the decision of the then Vice Chancellor for making regular appointment in a sense was approved. No such Government has been made by Ram Babu Rai in the present writ application. Therefore, it is obvious that the said Ram Babu Rai has deliberately suppressed the relevant materials in the writ application and, therefore, on this ground alone, his writ application has to be rejected. In this connection. Mr. Jha - has rightly placed reliance over decision of this Court In the case of Ram Saran Sharma v. The State of Bihar and ors. (supra) wherein it was held that for grant of a writ being in the nature of discretionary, the relief cannot be given when there is suppression of material facts by the petitioner. 19. In view of the facts stated above, we have no option but to hold that the claim of the petitioners of CWJC No. 4649 of 1991 for their ceau1arisation is unfounded and accordingly the same has to be rejected. 20. Now we shall proceed to consider the grievance or the petitioners of CWJC No.6105 of 1992. They are aggrieved by a notification whereby the Vice-Chancellor has cancelled their appointments. Their grievance is although appointments were made against sanctioned posts after following prescribed procedure, the Vice-Chancellor on account of political pressure to accommodate daily wage employees of the College, by the impugned notification has cancelled their appointment. It has been stated that admittedly the then Vice-Chancellor had constituted a Selection Committee for appointment against the posts in question. The posts were advertised and large number of person including some of the petitioners of the other writ application applied. The Deputy Registrar, who was one of the members of the Committee on account of certain unavoidable circumstances expressed his inability to participate in the interview. In his absence the Vice Chancellor nominated another Senior Official of the University as member of the Selection Committee. No Objection at that stage was raised either by the state Government or any of the candidates, who participated in the selection process. The Committee recommended the names of successful candidates and accordingly appointments were made by the Vice-Chancellor. It is also admitted that pursuant to the order of the Vice-Chancellor, the petitioners joined the College and started getting salary. 21. The Committee recommended the names of successful candidates and accordingly appointments were made by the Vice-Chancellor. It is also admitted that pursuant to the order of the Vice-Chancellor, the petitioners joined the College and started getting salary. 21. Three basic questions have been raised in the counter affidavit on behalf of the respondent University to cancel the appointment of the petitioner, namely, i) the posts were not sanctioned, ii) the selection committee was not properly constituted and iii) the Department of Human Resources through notification dated 11.7.1989 had taken a decision to fill up the posts on the basis of regularisation. With respect to the first objection reference can be made to the letter of the Principal of the College as contained in Annexure 19 to show that the appointments were against the sanctioned posts. Apart from the aforesaid, Mr. Rajendra Prasad Singh learned J. counsel fairly accepted that the petitioners can only be allowed to function against sanctioned posts. Therefore there is no difficulty in holding that in case the post are not sanctioned, the respondent may not allow the petitioners to function against such post. In regard to the next objection with respect to the constitution of that selection committee we have already noticed that after denial of the Deputy Registrar to continue as a member of the Selection Committee, the coordinator. College Development Council a senior official to that of the Deputy Registrar was nominated by the Vice-Chancellor. There fore, in my view, this also cannot be a ground to cancel the selection made by the Selection Committee. Coming to the last objection we have already noticed that the engagement of the petitioners of CWJC No. 4649 of 1991 was not made through a proper procedure, the respondent University had itself ignored the notification of the Human Resources Department and took a decision to fill up the post on the basis of regular appointment. consequent to such decision the posts were advertised and after following an the prescribed procedure appointments were made. More so, the decision of the State Government is not in conformity with the provisions as Articles 14 and 16 of the Constitution. We have already referred to several decisions of the Supreme Court that an executive order cannot override the statutory provision. Therefore at this stage on such a plan, the respondents are not justified in cancelling the appointment of the petitioners. 22. We have already referred to several decisions of the Supreme Court that an executive order cannot override the statutory provision. Therefore at this stage on such a plan, the respondents are not justified in cancelling the appointment of the petitioners. 22. Taking all the facts and circumstances into consideration, we are of the view that there is no sub-stance in the prayer of the petitioner for regularisation. Therefore, the application bearing CWJC No. 4649 of 1991 is dismissed. The prayer of the petitioners in CWJC No. 6105 of 1992 for quashing the impugned notification dated 27-6-1992 is allowed to the extent indicated above. According, the impugned notification so far it relates to the petitioners is quashed. But in the circumstances thereof there shall be no order as to costs. CWJC No. 4649/91 dismissed & CWJC 6105/92 allowed in part.