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2008 DIGILAW 636 (PAT)

Gauri Shankar Roy Kishore v. State Of Bihar

2008-04-23

MIHIR KUMAR JHA

body2008
Judgment 1. In this writ application the petitioner seeks to assail the order dated 2.3.2003 whereby and whereunder he was removed from the post of the Head of the Department of the Post Graduate Department of the Psychology in L.N. Mithila University on administrative ground and was sought to be replaced by one Dr. (Smt.) Bharti Ray, the Respondent No. 4. 2. Learned Counsel for the petitioner submits that the aforementioned order dated 2.3.2003 is per se illegal inasmuch as the petitioner being admittedly senior to Respondent No. 4 and in fact being the seniormost teacher of the University in the Department of Psychology, ought to have been not removed from the post of Head of the Department without a show cause notice and/or opportunity of hearing. In this connection he also refers to an order dated 30.6.2005 passed in CWJC No. 1157 of 2000 whereby and whereunder this court noticing the grievance of the petitioner, Respondent No. 3 therein had passed following orders: "Respondent No. 3, who appears through counsel, contends that he has further grievance as the University has wrongly removed him from the post of the Head of the Department. If such an order is there and as respondent no. 3 claims that he is the seniormost teacher not only in the department but in the University and if he is aggrieved by any order of the University he is free to challenge the same and move the appropriate authority or the court, if so advised. As he is the respondent in the present case, no specific relief for redressal of his grievance can be passed in this case." 3. Learned Counsel for the petitioner has submitted that pursuant to the aforementioned observation of this court in the order dated 30.6.2005, the petitioner had filed an exhaustive representation on 25.8.2005, as contained in Annexure-9 of the writ application, but the same was kept pending which led to filing of this writ application on 5.9.2005. 4. Counsel for the University despite being given repeated indulgence vide order dated 1.8.2006 and 12.3.2008 has however not chosen to file a counter affidavit. Counsel for the University, however, submits that the writ application filed by the petitioner after delay of two years is not maintainable and he further submits that there is no law which lays down the requirement for appointing the seniormost person as the Head of the Department. 5. Counsel for the University, however, submits that the writ application filed by the petitioner after delay of two years is not maintainable and he further submits that there is no law which lays down the requirement for appointing the seniormost person as the Head of the Department. 5. The aforesaid submission of the counsel for the University must be rejected on a simple ground that as a matter of fact the petitioner was earlier appointed as Head of the Deptt. On the strength of his being the seniormost Professor/Reader of the Psychology Deptt. Section 26 of the Bihar State Universities Act (hereinafter referred to as the Act) also provides a sufficient guideline that the University has to normally appoint the seniormost Professor/Reader of the Deptt. as Head of the Deptt. To make things clear Section 26(6)(b)(ii) of the Act is quoted hereinbelow: "Where it is proposed to appoint any teacher to be the Head of the Department who is not the seniormost Professor, University Professor or Reader of the Department, no such appointment shall be made without the prior concurrence of the Bihar State University (Constituent Colleges) Service Commission." 6. Learned counsel for the petitioner submits that if the petitioner earlier appointed as the Head of the Department on the strength of his being the seniormost Professor/Reader in the Department of Psychology of the University was sought to be removed from the post on administrative ground, it was all the more necessary for the University to give at least a show cause notice affording him an opportunity to explain his so-called disentitlement to hold the post of Head of the Department on the administrative ground. 7. This court, however, taking into consideration that a period of five years has already elapsed from the date of passing of the impugned order would not disturb the administrative functioning of the Deptt. of Psychology and the University. However, keeping in view the aforementioned stand of the petitioner that he is seniormost Professor/Reader of the Psychology Deptt. and is entitled for continuing as the Head of the Department in terms of Rule 26(6)(b)(ii) of the Act, this court would direct the respondent-University and its Vice-Chancellor to reconsider the matter afresh. 8. For this purpose this court also directs the petitioner to file a detailed representation with all information/documents. and is entitled for continuing as the Head of the Department in terms of Rule 26(6)(b)(ii) of the Act, this court would direct the respondent-University and its Vice-Chancellor to reconsider the matter afresh. 8. For this purpose this court also directs the petitioner to file a detailed representation with all information/documents. In case the petitioner is sought to be not retained as the Head of the Department on the ground of administrative reasons as mentioned in the notification dated 2.3.2003, the Vice-Chancellor will give an opportunity to the petitioner to explain the same. After such recourse is adopted and the petitioner is apprised of the case against him by the University, the Vice- Chancellor will consider the explanation submitted by the petitioner and would pass a final order. The entire exercise should be completed within a period of six months from the date of filing of the representation by the petitioner so that there may not be any further delay in the matter and if the petitioner is found entitled for appointment on the post of Head of the Deptt., the same must be given effect to at an early date. 9. With the aforementioned observations and directions, this writ application is disposed of.