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2005 DIGILAW 493 (PAT)

Ashok Kumar Ojha v. State Of Bihar

2005-05-05

CHANDRAMAULI KR.PRASAD

body2005
Judgment 1. Initially the prayer of the petitioner was for issuance of a writ in the nature of mandamus commanding the respondents, particularly, respondent nos. 2 to 4 to allow the petitioner to function as Incharge Principal of Ayurvedic Medical College Hospital, Gaya. By way of amendment, his prayer is to quash the order as contained in memo dated 7th of April, 2004 (Annexure-4) whereby respondent no. 7 has been appointed as Incharge Principal of Ayurvedic Medical College Hospital, Gaya, hereinafter referred to as the College. 2. Shorn of unnecessary details, facts giving rise to the present application are that earlier, respondent no. 7 herein, Dr. Awadh Kishore Vishwakarma was appointed as Incharge Principal of the College. One Dr. Ashdeo Upadhyay aggrieved by the same, preferred C.W.J.C. No. 9382 of 1995 (Or. Ashdeo Upadhyaya vs. The State of Bihar & Ors.) before this Court. When the aforesaid writ application was taken-up by this Court on 22.1.1997, taking note of the submission of said Dr. Upadhyay that while making even ad hoc arrangement the authorities are required to go by seniority, by interim order dated 22.1.1997, said respondent no. 7, who was respondent no. 4 in the said writ application, was restrained from functioning as Incharge Principal of the College. During the pendency of the said writ application, said Dr. Upadhyay was appointed as the Incharge Principal. This court by order dated 7.5.1997 disposed of the writ application with a direction to prepare a final gradation list. 3. When the final gradation list was not prepared, proceeding for contempt was initiated and thereafter a gradation list was published. In the said gradation list, petitioner has been placed at serial no. 1 whereas respondent no. 5 Dr. Ashdeo Upadhaya at serial no. 2 and respondent no. 7 Dr. Awadh Kishore Vishwakarma at serial no. 4. 4. Petitioner was aggrieved by appointment of respondent no. 5 as the Incharge Principal but during the pendency of this writ application, said Dr. Upadhayay had superannuated from service and by order dated 7th of April, 2004, respondent no. 7 has been made the Incharge Principal of the College. 5. In spite of service of notice on the respondents, no counter affidavit has been filed on their behalf. 6. Mr. Shailendra Kumar Sinha appears on behalf of the petitioner, whereas Mr. P.K. Rajgrihar appears on behalf of respondent nos. 2 to 4. Mr. 7 has been made the Incharge Principal of the College. 5. In spite of service of notice on the respondents, no counter affidavit has been filed on their behalf. 6. Mr. Shailendra Kumar Sinha appears on behalf of the petitioner, whereas Mr. P.K. Rajgrihar appears on behalf of respondent nos. 2 to 4. Mr. Sanjay Kumar appears for respondent no. 7 whereas State is represented by JC to G.P. VIII. 7. Mr. Sinha submits that the gradation list published in pursuance of the order of this Court shows the name of the petitioner at serial no. 1 and hence, appointment of respondent no. 7 as the Incharge Principal, who is junior to him at serial no. 4 of the gradation list, is absolutely illegal. He points out that even for appointing the Incharge Principal, the seniority of the person cannot be given a go-by. In this connection, he has referred to the order of this Court dated 22.1.1997 passed in C.W.J.C. No. 9382 of 1995 which relates to the post of the Incharge Principal in the College in question. Reliance has also been placed on a Division Bench judgment of this Court in the case of Jaibir Mishra vs. L.N. Mithila University & two others 1987 PLJR 838Z and my attention has been drawn to the following passage from para-9 of the judgment which reads as follows: "9.xxx If an Ad-hoc appointment is to be made, the senior-most must get the Ad-hoc appointment. There is no justification for placing the petitioner below respondent No. 3, if Annexure-1 is not quashed. This must be so for the reason that the appointment of respondent no. 3 also must be held to be Ad-hoc as he has not been appointed in accordance with the Statute." 8. Mr. Sanjeev Kumar, however, contends that respondent no. 7 had challenged the gradation list by filing C.W.J.C. No. 10128 of 1999 impleading the petitioner as respondent in the said writ application and by order dated 14.10.2004, this Court disposed of the writ application directing for publication of the final gradation list after taking into account the objection filed by the petitioner. He submits that till date the gradation list has not been finalised and therefore, appointment of respondent no. 7 as the Incharge Principal of the College, cannot be faulted. 9. Having considered the rival submission, I find substance in the submission of Mr. Sinha. He submits that till date the gradation list has not been finalised and therefore, appointment of respondent no. 7 as the Incharge Principal of the College, cannot be faulted. 9. Having considered the rival submission, I find substance in the submission of Mr. Sinha. In the light of the order of this Court, a gradation list was published in which undisputedly, the name of the petitioner is at serial no. 1 whereas that of respondent no. 7 is at serial no. 4. Said gradation list has not been quashed by the court in the writ application filed by respondent no. 7 and the direction is to prepare final gradation list afresh. Till date, such a list has not been prepared and the name of respondent no. 7 has not been placed above the petitioner in the gradation list. In the absence thereof, respondents ought to have acted on the basis of the gradation list published earlier in which the name of the petitioner is undisputedly above respondent no. 7. 10. In view of the decision of this Court in the cases of Dr. Ashdeo Upadhyay and Jaibir Mishra (supra), I am of the opinion that while making ad-hoc appointment or incharge to a higher post, senior most person is to get the said benefit unless an exceptional case is made out to deviate from this principle. Nothing has been brought on record to show that the petitioner, on any other count, is not fit to be appointed as the Incharge Principal. In that view of the matter, the action of the respondents in appointing respondent no. 7 as the Incharge Principal, cannot be sustained. The respondents are directed to consider the case of the petitioner for appointment as the Incharge Principal of the College within six weeks from today. 11. In the result, this application is allowed, the order dated 7.4.2004 (Annexure-4) is quashed and the respondents are directed to act in accordance with the direction aforesaid. In the facts and circumstances of the case, there shall be no order as to cost.