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Jharkhand High Court · body

2002 DIGILAW 1031 (JHR)

Rajendra Kumar v. State Of Jharkhand

2002-09-16

SUDHANSU JYOTI MUKHOPADHAYA

body2002
JUDGMENT S.J. Mukhopadhaya, J. 1. The writ petition has been preferred by the petitioner against decision dated 6th November, 2000 taken by the Governing Body of A.S.G.M. College, Nirsa, whereby and whereunder, the respondent No. 7 has been appointed to the post of Principal of the College. 2. The main plea taken to assail the decision is that : (a) the respondent No. 7 has no requisite 12 years of teaching experience, as per the advertisement and the guidelines of All India Council for Technical Education (AICTE, for short); and (b) the said respondent No. 7 does not have the requisite qualification of Post Graduate with first Class, as required, as per the guidelines of AICTE. 3. It appears that in pursuance of advertisement No. 74 of 1999 (Annexure 1), the petitioner as well as 7th respondent applied for appointment to the post of Principal. The interview for which was held on 8th September, 1999, wherein after the Bihar College Service Commission, vide letter No. 1087, dated 8th October, 1999. recommended the names of two persons. The respondent No. 7 was recommended as the first nominee and the petitioner as the second. 4. For the reasons best known to the Managing Committee of the College, no order of appointment having issued, the petitioner moved before this Court in CWJC No. 3199 of 1999. A Bench of this Court, vide order dated 16th December, 1999 disposed of the writ petition with directions to the Governing Body of the College to proceed with the process of appointment of the Principal, strictly in accordance with law. Both the parties were given liberty to challenge the decision of the Governing Body, if so required. 5. The case of the respondent No. 7 is that he has the requisite qualification and eligibility of more than 12 years of teaching experience as a Lecturer in an Affiliated College of Ranchi University, now Vinoba Bhave University. As per him, the College, in question, was established on 21st of June, 1980 and the petitioner was appointed after interview held on 25th of June, 1980 to the post of Lecturer on 28th of June, 1980. He joined the College as a Lecturer on 1st July and his appointment was confirmed by the Governing Body. As per him, the College, in question, was established on 21st of June, 1980 and the petitioner was appointed after interview held on 25th of June, 1980 to the post of Lecturer on 28th of June, 1980. He joined the College as a Lecturer on 1st July and his appointment was confirmed by the Governing Body. In pursuance of advertisement dated 15th September, 1982, he applied and on the recommendation of the Selection Board of the College, was given appointment on 3rd October, 1982 to the first post of Lecturer (History). 6. Further case of respondent No. 7 is that the College was affiliated for Arts and Commerce faculties for the Session 1983-84 onwards by the letter No. 15/A1-023/85 edu-724, dated 26th May, 1986. The posts were formally created and sanctioned, vide letter No. P/1741-42, dated 3rd April, 1987 issued by the Ranchi University. 7. It is stated that the respondent No. 7 has already taken charge as Principal of the College which has been approved by the University on 31st March, 2002. 8. The Governing Body of the College-respondent No. 6 has taken similar plea in support of respondent No. 7. It is stated that in pursuance of direction of this Court in CWJC No. 3199 of 1999 (R), the Governing Body considered the educational qualifications and academic careers of both petitioner and respondent No. 7 wherein-after the respondent No. 7 has been appointed as Principal strictly in terms of statute, in accordance with law. 9. The petitioner has made specific averment that only two posts of lecturer in the department of History were sanctioned in the College, vide letters dated 25th May. 1988 and 31st August, 1988. There was no third sanctioned post of Lecturer (History) in the College. In pursuance of advertisement No. 821/89, the petitioner and respondent No. 7 applied along with others. However, one Sri Madan Mohan Tiwary and another Smt. Kamini Kumari having recommended by the College Service Commission, they were appointed to the post. In this background, the petitioner has raised question relating to continuity of respondent No. 7 as a lecturer (History in the College without any recommendation of the Commission. 10. The counsel for the respondent No. 7 also attacked the petitioners eligibility as he was stated to be not working against a sanctioned post, nor was appointed on the recommendation of the College Service Commission. 10. The counsel for the respondent No. 7 also attacked the petitioners eligibility as he was stated to be not working against a sanctioned post, nor was appointed on the recommendation of the College Service Commission. The maintainability of the writ petition at the instance of the petitioner was also questioned. 11. From the advertisement No. 74/98, it will be evident that for appointment to the post of Principal of the College, the applications were called for and 22nd December, 1998 was the closing date. A 1st or high 2nd Class Masters degree or any equivalent degree of a foreign University with consistent good academic record and not less than 12 years teaching experience at least as a lecturer in a degree College/University Department was the prescribed qualification shown in the advertisement in terms with Statute. 12. Admittedly, neither the respondent No. 7, nor the petitioner were working as lecturer on the recommendation of the College Service Commission as per the Bihar State Universities Act, 1976 or Statute framed thereunder. There was no sanctioned post of lecturer against which one or other can claim working after appointment of Sri Madan Mohan Tiwary and Smt. Kamini Kumari against two sanctioned post of lecturer (History). 13. The Supreme Court in the case of Rajni Bala Agrawal v. Lalit Narayan Mithila University, Darbhanga, AIR 1999 SC 2118 , considered the eligibility qualifications for appointment to the post of Principal of a degree college in terms with the Bihar State Universities Act, 1976. The Apex Court held that experience as a lecturer in private unaffiliated college and which is not degree college cannot be counted. Under Section 2(s), a lecturer is defined to mean a teacher of a college or the University possessing such qualifications as may be prescribed by the Statutes. Therefore, the experience of teaching as a lecturer must be as a lecturer in an affiliated degree college. 14. The question of teaching experience arises if a person acquires experience of teaching on appointment against a post. In absence of a post, the question of acquiring teaching experience does not arise, any appointment against non-existence post being nullity and ab initio void. 15. Admittedly, the respondent No. 7 was not working against any sanctioned post of lecturer (History). In the College, the posts were created in the department of History first time in 1988. In absence of a post, the question of acquiring teaching experience does not arise, any appointment against non-existence post being nullity and ab initio void. 15. Admittedly, the respondent No. 7 was not working against any sanctioned post of lecturer (History). In the College, the posts were created in the department of History first time in 1988. By December, 1998 even a regular appointee in the College cannot claim 12 years of experience against such posts. In the circumstances, respondent No. 7 cannot claim 12 years of teaching experience as on the closing date of application, i.e. 22nd December, 1998. 16. So far as petitioner is concerned, he is also not eligible for appointment against the post of Principal for the same reason, having no teaching experience against a sanctioned post. However, as Principal of a College has supervisory jurisdiction over a lecturer, such as petitioner, it is open for him to question the legality and propriety of appointment of respondent No. 7. 17. For the reasons aforesaid, respondent No. 7 being not eligible for appointment as per advertisement No. 74/98, the recommendation made by the Commission in his favour, decision of the Governing Body dated 6th November, 2000 and his appointment is declared as illegal and is set aside. 18. It will be open to the respondents to fill up the post of Principal on regular basis. In the meantime, in the administrative exigency, the seniormost teacher of the College can be made Professor Incharge. 19. The writ petition is allowed, with the aforesaid observations.