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2013 DIGILAW 452 (PAT)

Om Prakash Gupta v. State of Bihar

2013-04-04

AHSANUDDIN AMANULLAH, R.M.DOSHIT

body2013
Judgment These two Appeals preferred under Clause 10 of the Letters Patent arise from a common judgment and order dated 8th September 2011 passed by the learned single Judge in C.W.J.C. No. 2103 of 2009 and C.W.J.C. No. 12195 of 2009. 2. C.W.J.C. No. 2103 of 2009 was filed under Article 226 of the Constitution by one Navin Kumar, a senior Lecturer in the Post Graduate Department of Geography in Veer Kunwar Singh University, Ara. The said writ petitioner challenged the appointment of 16 Principals in the constituent Colleges of Tilka Manjhi Bhagalpur University, Bhagalpur (hereinafter referred to as “the University”) made under Notification dated 29th September 2008. 3. Learned single Judge has allowed the above C.W.J.C. No. 2103 of 2009 and has quashed the selection and appointment of the 16 Principals appointed under the Notification dated 29th September 2008. Feeling aggrieved, ten of them have preferred Letters Patent Appeal No.1438 of 2011. 4. The learned single Judge has considered each allegation made in respect of the selection and appointment of Principals made under Notification dated 29th September 2008. We are, therefore, not required to repeat or reiterate the said allegations in extenso. 5. Broadly speaking, in a nutshell, the challenge to the selection and appointment of the Principals in the constituent colleges of the University is on the grounds of procedural irregularities, favoritism and nepotism. The gravamen of the challenge is that the then Vice Chancellor of the University made the selection on extraneous considerations in utter disregard of the statutory procedure. Many of the persons selected were tainted or were not eligible for such appointment having regard to their academic career, experience, published articles etc. 6. Learned counsel Mr. Vinod Kumar Kanth has appeared for the appellants. Mr. Vinod Kumar Kanth has taken us through the impugned judgment and the records. He has vehemently argued that the learned single Judge has recorded the averments made by the writ petitioner. The decision is based on such averments alone. In other words, the learned single Judge has not considered the defence put forth by the University and the contesting respondents. The learned single Judge has failed to record the findings in respect of each allegation made against the University and the individual respondents. Mr. The decision is based on such averments alone. In other words, the learned single Judge has not considered the defence put forth by the University and the contesting respondents. The learned single Judge has failed to record the findings in respect of each allegation made against the University and the individual respondents. Mr. Vinod Kumar Kanth has relied upon Section 57(1) of the Bihar State Universities Act, 1976 as amended by the Bihar Act 21 of 2007 and by the Bihar Act 3 of 1990. He has also relied upon the Statutes 7 and 13 of the Statutes. 7. Learned advocate Mr. Amresh Kumar Singh has appeared for the writ petitioner. He has supported the judgment of the learned single Judge. Mr. Singh has relied upon the judgment of the Hon’ble Supreme Court in the matter of Indra Sawhney v. Union of India, (A.I.R. 1993 SCC 477 ) and of this Court in the matters of Md. Daud Hassan vs. State of Bihar, {1995(1) PLJR 492}; of Dr. Bimal Prasad Singh vs. State of Bihar, { 2011 (1) PLJR 1134 }; of Dr. Om Prakash Singh vs. Bimal Prasad Singh, { 2011 (2) PLJR 787 }; of Dr. Rai Murari vs. Patna University, { 2011(3) PLJR 92 }. He has particularly relied upon the supplementary counter affidavit filed by the University. He has also submitted that even the reserved category candidates, if found meritorious, shall be placed in the general category list in order of their merit. 8. Learned counsel Mr. S.K. Ghosh has appeared for the University. He has supported the Appeals. 9. Learned advocate Mr. Kumar Kaushik has appeared for the State Government. He has contested the Appeals. He has relied upon Section 54 of the Act and the auditor’s report (@ p. 161). 10. As the matter relates to the selection and appointment of the Principals of the constituent Colleges of the University, we shall first examine the relevant provisions. The State of Bihar has enacted the Bihar State Universities Act, 1976 (hereinafter referred to as “the Act”) with a view to establishing and incorporating affiliating-cum-teaching Universities, inter alia, at Bhagalpur. The University has been defined to mean, “The University established and incorporated under Section 3 of this Act”. The Tilka Manjhi Bhagalpur University is one of the Universities established under Section 3 of the Act. The University has been defined to mean, “The University established and incorporated under Section 3 of this Act”. The Tilka Manjhi Bhagalpur University is one of the Universities established under Section 3 of the Act. Section 57 of the Act provides for appointment of teachers and officers. The said Section 57, as substituted under the Bihar State Universities Amendment Act, 2007 (Bihar Act 21 of 2007), provides inter alia, that the appointment of the teachers and officers of the University shall be made by the University on the recommendation of the selection committee. The said section provides for a selection committee comprising (1) The Vice Chancellor of the University; (2) nominee of the Chancellor; (3) nominee of the State Government; (4) experts nominated by the Vice Chancellor from a panel approved by the Academic Council; at least one of them being a Scheduled Caste/Scheduled Tribe person; and (5) The head of the department of the concerned discipline. 11. Section 57 B, inserted by the Bihar Act 21 of 2007, enjoins the selection committee constituted under Section 57 of the Act to abide by the procedure of selection to be prescribed by a Statute to be framed by the University. 12. In other words, under the Act as it stood amended by the Bihar Act 21 of 2007, the University is enjoined to prescribe a selection procedure by framing Statute in consonance with the Act. The selection committee in turn is enjoined to follow such procedure. We are informed at the bar that thus far the University has not prescribed the procedure for selection as envisaged by Section 57 B of the Act. 13. Statute 7 of the Statutes provides, inter alia, for mode of appointment, pay scales and qualifications for the post of teachers in the affiliated degree colleges. Statute 9 provides, inter alia, for mode of appointment, pay scales and qualifications for the post of teachers in the University. 13. Statute 7 of the Statutes provides, inter alia, for mode of appointment, pay scales and qualifications for the post of teachers in the affiliated degree colleges. Statute 9 provides, inter alia, for mode of appointment, pay scales and qualifications for the post of teachers in the University. For “Principal” it provides a minimum qualification of, “A first or high second class master or equivalent Degree of a foreign university with consistently good academic record and not less than twelve years teaching experience, at least as a lecturer in a Degree College/University department: Provided that the scale of pay of University Professor shall be admissible only to those who possess the qualification of a University Professor and have decided suitable for appointment in that scale by the Public Service Commission or who are already University Professor on the recommendation of the Commission at the time of appointment” 14. It is the grievance of the writ petitioner that in making selection pursuant to the above referred advertisement no.2/2007, the University failed to constitute the selection committee in accordance with Section 57 of the Act. The selections are made in capricious manner inasmuch as the better qualified and more meritorious candidates have been spared and the respondents are selected, although many of them did not possess the requisite qualifications or were tainted. The alleged deficiency in respect of each respondent is dealt with in the supplementary affidavit. 15. The petition was contested by the University. At first, on the preliminary ground of alternative remedy before the Chancellor available to the writ petitioner. A further affidavit had also been filed by the University. 16. We are at pains to note that although the writ petitioner had made a specific allegation in respect of the constitution of the selection committee, neither the University has denied such allegations nor the University has set out who were the members of the selection committee. The University has not made an attempt to satisfy the Court that the experts selected by the Vice Chancellor were from the panel of experts approved by the Academic Council and that at least one of the experts belonged to the Scheduled Caste or Scheduled Tribe. The University has not denied the allegations of extraneous consideration or of favoritism or nepotism made against the University. The University has not denied the allegations of extraneous consideration or of favoritism or nepotism made against the University. On the contrary, the University has admitted in no uncertain terms that there had been the violation of the rule of roster and reservation. The University has also admitted that two of the candidates of Other Backward Class were not given any mark at the interview and thus they have been deprived of the appointment as a Principal. However, the University has explained the selection of Dr. Bhagwati Sharan Singh although he had not secured the required 55% marks in his masters’ degree; of Dr. Kumkum Singh; Dr. Om Prakash Gupta; Dr. Amrendra Narain Singh and Dr. Shankar Paswan. 17. The then Vice Chancellor Smt. Prema Jha has also not filed affidavit to deny the specific allegations made against her. 18. It further appears that pursuant to the uproar raised against the selection and appointment of the Principals, a special audit was caused to be made by the State in exercise of power conferred by Section 54 of the Act. A detailed report has been made by the Auditors. In respect of the selection and appointment of the said Principals, it has recorded several lapses and contravention of statutory provisions. According to the said report, the selection committee was appointed by the Vice Chancellor arbitrarily in contravention of Section 57(1) of the Act. 19. The appellant-respondent no.12 made counter affidavit on his own behalf and on behalf of respondent nos. 5 to 7 and 9 to 19. He denied that the University or the Vice Chancellor had acted arbitrarily or that undue favour had been made to the concerned Principals. He denied that two of the Scheduled Caste candidates were not marked at interview depriving them the appointment as Principals. He explained the circumstances in which he was considered eligible irrespective of his not having secured 55% marks at the masters’ degree level examination. He has also explained the selection of other four Principals viz. Dr. Kum Kum Singh, Dr. Amrendra Narain Singh, Dr. Shankar Paswan and Dr. Bhagwati Sharan Singh, who had been given relaxation in respect of the eligibility criteria. For that he has relied upon the documents annexed to the said affidavit. He has also explained that at the relevant time the Registrar of the University was debarred from performing his official functions. Kum Kum Singh, Dr. Amrendra Narain Singh, Dr. Shankar Paswan and Dr. Bhagwati Sharan Singh, who had been given relaxation in respect of the eligibility criteria. For that he has relied upon the documents annexed to the said affidavit. He has also explained that at the relevant time the Registrar of the University was debarred from performing his official functions. In absence of the Registrar, the C.C.D.C. holding the post of Registrar had issued the appointment letters. 20. We are afraid, in absence of even a bare denial or the explanation coming forth from the University or the Vice Chancellor, the affidavit made by the concerned Principals is of no consequence. The concerned Principals could not have vouched for the University or the Vice Chancellor. 21. In absence of specific denial of the allegations by the University or the Vice Chancellor, the assertions made by the writ petitioner had to be believed. The learned single Judge has rightly allowed the writ petition. No case for interference is made out. 22. Pursuant to the uproar created in respect of the appointment of the Principals under Notification dated 29th September 2008, the State Government, as recorded hereinabove, exercised its power to cause audit conferred by Section 54 of the Act. Pursuant to the auditor’s report, the State Government decided to examine the selection and the selection process undertaken by the University under the Vice Chancellor Smt. Prema Jha. Pursuant to the said decision, under communications dated 7th September 2009, the State Government instructed the Registrar of the University that in view of the enquiry contemplated, payment of salary to the Principals would be withheld and to place the matter relating to the appointment of the Principals before the Syndicate and to forward the report of the Syndicate to the State Government. The State Government issued further instruction that the appointment of the Principals would, pending enquiry, be kept in abeyance and that no further appointment would be made. 23. Feeling aggrieved, five of the Principals Dr. Amrendra Narain Singh and others, the respondent nos. 15, 12, 6, 14 and 13 respectively in C.W.J.C. No. 2103 of 2009 approached this Court under Article 226 of the Constitution in C.W.J.C. No. 12195 of 2009. 24. According to the said writ petitioners, the action of the State Government in examining the recruitment process undertaken by the University was beyond its power. 15, 12, 6, 14 and 13 respectively in C.W.J.C. No. 2103 of 2009 approached this Court under Article 226 of the Constitution in C.W.J.C. No. 12195 of 2009. 24. According to the said writ petitioners, the action of the State Government in examining the recruitment process undertaken by the University was beyond its power. The impugned instruction was issued without the authority of law. 25. The said writ petition was contested by the University and the State Government. The State Government maintained that the selection and appointment of the said Principals was made in contravention of the Act, Statutes, Orders and the Instructions issued from time to time and that in view of the preliminary report the appointment of the said Principals was likely to be held illegal. 26. The learned single Judge has dismissed the said writ petition. Therefore Letters Patent Appeal No.1439 of 2011. 27. The question is of the authority of the State Government to enquire about the selection process undertaken by the University. In our opinion, in view of the above judgment and the decision that the appointments were illegal, made in violation of the Act and the Statutes, the matter has become academic and need not be decided. 28. For the aforesaid reasons, both these Appeals are dismissed. Interim relief stands vacated. 29. Interlocutory Applications stand disposed of.