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2004 DIGILAW 1230 (PAT)

Sudhir Nayan v. State Of Bihar

2004-12-10

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of mandamus commanding the respondent Rejendra Agricultural University to appoint the petitioner to the post of Artist-cum-Photographer. 2. Short facts giving rise to the present application are that the casual employees holding Class Iff and Class IV post working in the Rajendra Agricultural University (hereinafter referred to as the University) agitated for regularisation of their services Ultimately the matter travelled to the Supreme Court giving rise to the Special Leave Petition (Civil) No. 18694 of 1994 and the Supreme Court in its order dated 18th of February, 1998 gave the following direction: "So far as class IV posts are concerned regular appointment against available vacancies for regular sanctioned post under the Bihar State Agricultural Universities Act should be made by appointing the casual employees who have worked in the Rajendra Agricultural University for more than 15 years against 35% of available vacancies provided such employees have requisite qualification for regular appointment and they are also physically fit for permanent absorption. In respect of balance 65% vacancies, invitation of applications by advertisement by following the usual procedure for filling up the vacancy in the University services should be made. The casual employees of the Rejendra Agricultural University who will not be absorbed against 35% reserved quota as indicated hereinbefore will be entitled to apply for the said 65% posts. The following criteria will be followed for selection against the 65% posts. For each year of completed service of the casual employees, 2% marks will be given for their experience up to the maximum of 30%. For educational and others qualifications as laid down in the advertisement, 50% marks would be given and 20% marks will be allotted on the basis of performance in the interview. It is clarified that for the casual employees year of completed service will mean, by ignoring artificial break, 240 days of service in a year. There will be relaxation of age upto 50 years in the case of casual employees serving the Rajendra Agricultural University in the State of Bihar and appointment will) be given provided such employees are physically fit for regular absorption. The same principle will also be followed for filling up the Class iii posts after giving the same relaxation of age. There will be relaxation of age upto 50 years in the case of casual employees serving the Rajendra Agricultural University in the State of Bihar and appointment will) be given provided such employees are physically fit for regular absorption. The same principle will also be followed for filling up the Class iii posts after giving the same relaxation of age. The casual employees who will not be absorbed either against 35% of reserved quota or balance 65% vacancies as indicated above wilt be disengaged from the services after exercise of selection process is completed. Such exercise should be taken up as early as practicable and the selection process should be completed within a period of six months from today." 3. in the light of the direction of the Supreme Court, the respondent-University issued Advertisement No. 2 of 1998 (Annexure-2) inviting applications from open market for filling up the post of Artist-cum Photographer besides other posts. According to the advertisement such candidate shall only be eligible, who had Bachelars degree on Arts and Photography and toe experience of photographer of two years in any Government institution. Petitioners of fered his candidature stating therein the he is eligible in terms of the advertisement. The candidature of the petitioner for the post of Artist-cum-Photographer was considered besides the other candidates who had applied for the above post. The Director of Administration of the respondent-University by letter dated 11 th of June, 1999 addressed to the Dean and Principal of the Bihar Veterinary College enclosed the list of the. selected candidates which include the name of the petitioner and directed him to issue appointment letter of the selected candidates by 15th of June, 1999. In the said letter it has been observed that in the light of the order of the Hon ble Supreme Court with regard to 65% regular vacancies of Class III and Class IV post candidates have been selected by the Selection Committee duly constituted by the Vice-Chancellor. Notwithstanding the petitioners selection when no appointment letter was issued he had chosen to file this application on 29.11.1999. 4. Counter affidavit has been filed on behalf of respondent no. 2 and in paragraph 6 thereof it has been stated as follows: "That the said Committee revised all the cases including that of the petitioner. Notwithstanding the petitioners selection when no appointment letter was issued he had chosen to file this application on 29.11.1999. 4. Counter affidavit has been filed on behalf of respondent no. 2 and in paragraph 6 thereof it has been stated as follows: "That the said Committee revised all the cases including that of the petitioner. The Committee found that the petitioner was not suitable and eligible due to lack of experience for the post of Artist-cum-Photographer." 5. Rejoinder to counter affidavit has been filed by the petitioner in which it has been stated that the petitioner had obtained Bachelors degree in Fine Arts and Photography from Patna University and has secured 1st Class and further he had experience of working for five years with the Air Port Authority of India. No reply to the aforesaid statement made by the petitioner of the rejoinder has been filed. 6. Further in the rejoinder petitioner as averred that the real cause for not -^pointing the petitioner is not lack of experience as projected by the answering Respondent but in fact on account of resentment amongst the casual labour about the regular appointment against the 65% vacancy, the University had withdrawn its hand in issuing letter of appointment. In this connection letter dated 14th of June, 1999 (Annexure-5) addressed to the various functionaries of the respondent-University has been placed on record. Petitioner has further placed on record the letter dated 15th of June, 1999 (Annexure-6) of the Director of the Administration addressed to those very authorities asking them ask the casual labours to give their objection in writing in case they are. aggrieved by the appointment of any person from open market. Respondent-University has not attempted to controvert all these assertions made by the petitioner. 7. Mr. Rajendra Narayan, appearing on behalf of the petitioner contends that once the petitioner has been selected for appointment, in the absence of any compelling reasons, respondent-University cannot refuse his appointment. Mr. V.R.P Singh appearing on behalf of the University, however, contends that though the petitioner was selected by a duly selection committee but on review it was found that he is not suitable and eligible due to lack of experience for appointment to the post of Artist-cum-Photographer and hence he has not been appointed. Mr. V.R.P Singh appearing on behalf of the University, however, contends that though the petitioner was selected by a duly selection committee but on review it was found that he is not suitable and eligible due to lack of experience for appointment to the post of Artist-cum-Photographer and hence he has not been appointed. There is no difficulty in accepting the broad proposition that a person selected by a selection committee has no vested right of appointment and may not be appointed in case in future, on review, it is found that he does not possess the requisite qualification in terms of the advertisement or the statutory requirement but the question in the present case is as to whether petitioner lacks such experience as contended by the respondent-University. The University in the counter affidavit has not stated as to how the petitioner lacks experience. A duly constituted selection committee has selected the petitioner for appointment and in that view of the matter, it has to be assumed, unless contrary is established, that the petitioner did possess the requisite experience. Petitioner has specifically pleaded that he had passed the bachelors examination in Fine Arts and Photography from Patna University and has worked in the Air Port Authority of India for five years. In the absence of any material to the contrary, the plea putforth by the answering respondents that petitioner lacks experience is not fit to be accepted. 8. I am inclined to accept the stand of the petitioner that In fact he is being denied appointment not on the ground of lack of experience but on account of resentment by the casual labour and when challenge to that has been made before this Court this ingenious plea has been digged out by the answering respondents. This would be evident from the letter of the Director dated 14th of June., 1999 (Annexure-5) in which he has directed not to issue appointment letter in view of the resentment of the casual labours. 9. In view of unfair stand of the answering respondent in the counter affidavit, I am inclined to award cost of this litigation to the petitioner which I assess at Rs.5,000/- (Rupees five thousand). 10. In the result, the application is allowed with cost to be paid by respondents 2, 3 and 4. 9. In view of unfair stand of the answering respondent in the counter affidavit, I am inclined to award cost of this litigation to the petitioner which I assess at Rs.5,000/- (Rupees five thousand). 10. In the result, the application is allowed with cost to be paid by respondents 2, 3 and 4. Let a writ in the nature of mandamus issue commanding the respondent-University to act on the recommendation of the selection committee. This be done within four weeks from the date of receipt/production of a copy of this order.