Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 99 (JHR)

Sanjay Kumar Pandey v. State of Jharkhand

2013-01-17

APARESH KUMAR SINGH

body2013
ORDER Heard counsel for the parties. The respondent No. 3 and 4 were although served notice but they have chosen not to appear and contest the case. 2. The question posed before this court is whether it should exercise its discretionary jurisdiction by issuing the writ of quo-warranto quashing the appointment of Respondent No. 5 for the post of Principal at Baghmara College, Baghmara, Dhanbad. 3. The facts which are not in dispute are as follows:- The Baghmara College was established in the year 1979 as intermediate college. The Respondent No. 5 was appointed as lecturer in the year 1981 by the governing body of the said college. The college was imparting teaching of intermediate courses and subsequently, the University gave temporary affiliation to the college to impart teaching in degree courses on 10.6.1988 from the Sessions 1987-88 onwards. The college in question continued to have extension of such affiliation till it was finally granted permanent affiliation up to degree standard by the Government of Bihar vide letter No. 883 dated 10.6.2000 which was communicated by the University vide its memo no. 4434 dated 17.7.2000 (Annexure R-5/F series). The respondent no. 5 applied for concurrence of his appointment as lecturer before the Bihar College Service Commission(B.C.S.C.), Patna against the advertisement no. 41 of 1994 pursuant whereto the Commission granted concurrence vide letter dated 21.12.1998 for the post of Mathematics teacher by recommending 2 names including that of the respondent no. 5, who was recommended as first preference. Thereafter, respondent no. 5 applied for recommendation from B.C.S.C against the advertisement no. 13 of 1999 for being appointed as Principal of the said Baghmara College upon which the Bihar College Service Commission(B.C.S.C.) issued its recommendation letter dated 3.1.2000 recommending the name of respondent no. 5 for the post of Principal in the said college. The Commission this time recommended only one name of respondent no. 5, who was thereafter, appointed by the college as Principal w.e.f. 22.7.2000. 4. The respondent no. 5 continued as Principal of the said college when in the year 2007 the present petitioner preferred this writ petition seeking issuance of writ of quo-warranto challenging the appointment primarily on two grounds. The Commission this time recommended only one name of respondent no. 5, who was thereafter, appointed by the college as Principal w.e.f. 22.7.2000. 4. The respondent no. 5 continued as Principal of the said college when in the year 2007 the present petitioner preferred this writ petition seeking issuance of writ of quo-warranto challenging the appointment primarily on two grounds. First that the B.C.S.C contrary to Section 2(9) of the Act under which it was created and the judgment rendered by the Single Bench of this Court in C.W.J.C. No. 1133 of 2000(R) dated 8.10.2002 made sole recommendation while it was obliged to make at least two recommendations for any post of teachers/Principal for any affiliated college. The second ground on which the petitioner rest his submission is that the respondent no. 5 does not fulfill the minimum qualification laid down under the statute dated 24.4.1978 for appointment of teachers in affiliated degree colleges as also under the terms of the advertisement no. 13 of 1999 which are peri-meteria to the provisions of the statute and are annexed as Annexure-R-5/A series as well. According to the petitioner since the B.C.S.C made recommendation for respondent no.5 for his appointment as lecturer in the said college only on 21.12.1998 he did not fulfill the minimum required eligibility condition of 12 years of teaching experience as lecturer in a degree college / University department as required under the statute and under the advertisement under which the recommendation was made. Counsel for the petitioner, therefore, submits that the respondent no. 5 having failed to fulfill the necessary minimum eligibility criteria required under the statute and the advertisement is not fit to hold the post which is public post and moreover the recommendation under which he has been appointed is also vitiated under law as already indicated herein above. 5. Respondent No.5 on the other hand has appeared and filed its counter affidavit and supplementary counter affidavit and at the outset he has opposed the prayer made in the writ application on the ground that after 7 years of his appointment the same has been challenged seeking issuance of writ of quo-warranto on account of some dispute in the management itself and in such circumstances no relief should be granted. Counsel for the respondent no. Counsel for the respondent no. 5 in support of his appointment as Principal has further stated that from the aforesaid facts which are not in dispute that the college in question was granted affiliation for teaching in degree courses w.e.f. Sessions 1987-88 and the respondent no. 5 was already working in the said college from 1981 as lecturer. Accordingly, as per the counsel for the respondent no. 5 even reckoning the period from 1987 onwards he has completed the minimum period of 12 years of teaching experience in the degree courses in the degree college before the recommendation was made by the Commission on 3.1.2000 for his appointment as a Principal. Counsel for the respondent no. 5 has sought to rely upon the judgment rendered by the Division Bench of this court in the case of Dr. Anant Kumar Akhouri Vrs. The Vice Chancellor, Ranchi University & others reported in 2012(2) JCR 153 (Jhr) to buttress his contention that even temporary appointment for 6 months period have been reckoned for treating the services of such lecturer as continuous from the date of his original temporary appointment. It is submitted that the judgment of the Division Bench of this Court was further challenged in S.L.P before the Hon'ble Supreme Court, which was dismissed, however and the ratio laid by the Court has attained finality. Counsel for the respondent no. 5 has further relied upon the judgment of the Single Bench of the Patna High Court in the case of Budhadeo Prasad Singh Vrs. The State of Bihar & others reported in 2007(1) BLJR 0041 (Patna) in order to support that the period of continuous service rendered by a teacher in an affiliated college is to be counted for computing his qualifying service for promotion without any reference to the date on which the State Government gave permission for creation of the post as sought by the University. Relying upon the aforesaid Judgment it is submitted that even the services of the petitioner prior to the date when the college was affiliated in the subject concerned cannot be excluded for computing his qualifying service. This was the case where the issue relating to time bound promotion for the post of Lecturer to Reader under the University was under consideration in respect of a lecturer of an affiliated college. 6. Counsel for the respondent has further stated that the respondent no. This was the case where the issue relating to time bound promotion for the post of Lecturer to Reader under the University was under consideration in respect of a lecturer of an affiliated college. 6. Counsel for the respondent has further stated that the respondent no. 5 had duly made an application for seeking recommendation from the B.C.S.C. under the advertisement no. 13 of 1999 and the respondent no. 5 was not at fault if the Commission chose to recommend only one name in a situation when no other person would have applied or no other person was found fit. Counsel for the respondent no. 5 has further relied upon a judgment of the Hon'ble Supreme Court of India in the case of Dr. M. S. Mudhol & Another Vrs. S.D. Halegkar & others reported in 1993(3) SCC 591 and submitted that in similar circumstances relating to the challenge of the appointment a of Principal of an aided high school in exercise of writ of quo-warranto after 9 years of the appointment, the Hon'ble Supreme Court refused to exercise the writ of quo-waranto. The Apex Court observed that the post of the Principal of the private school though aided is not such a sensitive matter that the Court should be impelled to interfere with the appointment in the writ of quo-warranto and more so when the incumbent has been discharging his duty continuously over a long time of 9 years. It is further submitted that the present college is also an affiliated and rather unaided college and the very question that the post of Principal is a public post or not is a moot question for exercise of writ of quo-warranto, which the petitioner has failed to address. Moreover the writ petition has been filed 7 years after the appointment and the respondent no. 5 is discharging his duties since his appointment in the year 1981 and subsequently from 1987 onwards and also remained professor in-charge before being appointed as Principal. In these circumstances, this Court should refrain from granting any relief in exercising its discretionary jurisdiction. 7. Moreover the writ petition has been filed 7 years after the appointment and the respondent no. 5 is discharging his duties since his appointment in the year 1981 and subsequently from 1987 onwards and also remained professor in-charge before being appointed as Principal. In these circumstances, this Court should refrain from granting any relief in exercising its discretionary jurisdiction. 7. Counsel for the University on the other hand submits that although it was required to grant approval for appointment of Respondent No. 5 as a lecturer and also as Principal after the recommendation were made and the matter was brought to the notice of the University right in the year 2000 as would appear from the letter of the college contained at Annexure-R5/G-1 dated 6.11.2000 but necessary orders could not be issued in time. However, subsequently, the University has approved the aforesaid recommendations by the letters dated 8.1.2013 and 21.12.2012 which are part of the supplementary counter affidavit filed on behalf of the University on 9.1.2013. 8. Counsel for the petitioner, however vehemently objected to such action on the part of the University during the pendency of the application when the whole appointment of respondent no. 5 itself is under consideration in this Court. 9. I have heard learned counsel for the parties and gone through the relevant materials on the record including the impugned order. It appears that there are two issues which are relevant for determination of the question posed before this Court as already indicated herein above in the proceeding para of the instant order i.e. whether the appointment of the respondent no. 5 has been vitiated on account of sole recommendation by the B.C.S.C for the post of Principal vide Annexure-2(A) dated 3.1.2000. In this regard from the undisputed facts which have been brought on record it is apparent that the B.C.S.C issued advertisement No. 13 of 1999 for recommending candidates for appointment to the post of Principal in the affiliated college i.e. Baghmara College under the Vinoba Bhave University. The respondent no. 5 had applied for being considered and recommended for the post of Principal. Under Section 2(9) of the C.S.C Act, the Commission has an obligation to recommend 2 names for appointment against the post of teacher/ lecturer/Principal to any affiliated college as also referred to in the Judgment contained at Annexure-4. The respondent no. 5 had applied for being considered and recommended for the post of Principal. Under Section 2(9) of the C.S.C Act, the Commission has an obligation to recommend 2 names for appointment against the post of teacher/ lecturer/Principal to any affiliated college as also referred to in the Judgment contained at Annexure-4. Counsel for the petitioner has relied upon the judgment of the learned Single Judge in C.W.J.C. No. 1133 of 2000(R) wherein also this Court while setting aside the recommendation of the Commission had taken into account that the Commission has made only one recommendation for the post of lecturer while the provisions of the act requires it to make at least 2 recommendation. Counsel for the respondent no.5 however has distinguished the said judgment stating that in the said case the re-commendee did not fulfill the requisite qualification and on those facts the sole recommendation was interfered by taking into account Section 2(9) of the Act of 1976, however no issues on that score were framed, considered and decided by lying down any proposition of law so far as Section 2(9) of the Act of 1981 is concerned. From the judgment relied upon by the respondent no. 5 rendered in the case of Dr. M. S. Mudhol & Another Vrs. S.D. Halegkar & others(supra), it appears that the Hon'ble Supreme Court having faced with similar situation had observed that the illegality, if any was committed by the selection committee and recommendee of course cannot be blamed for that. On that account, therefore, after lapse of 7 years from the date of said recommendation when the writ petition was preferred and now almost 13 years from the date of such recommendation, this Court is not inclined to interfere with the said recommendation made in the year 2000 because the respondent no. 5 obviously cannot be blamed for that . The said recommendation in any case is not under challenge. 10. So far as other issue is concerned as to whether 12 years teaching experience is required under the statute dated 24.4.1978 and in terms of the advertisement under which the recommendation was made, from the facts which has been brought on record it is not in dispute that the college in question was allowed temporary affiliation to impart teaching in degree courses from 1987 onwards. The respondent no. The respondent no. 5 was lecturer in the said college from 1981 onwards where teaching under intermediate courses were only imparted before 1987. The recommendation of the B.C.S.C took place on 3.1.2000 under advertisement no. 13 of 1999 where under the respondent no. 5 had preferred his application for being recommended to the post of Principal on the basis that he holds the qualification of first class master degree in the subject Mathematics and also possess 12 years teaching experience in degree college. Therefore, from the facts which has been stated herein above though the concurrence to the appointment of the respondent no. 5 as lecturer was granted on 21.12.1998 but it was made against the advertisement no. 41 of 1994 itself in which he had applied and obviously had continued to impart teaching in degree subject in the affiliated college from 1987 onwards till such recommendation was made by the B.C.S.C. In these circumstances, keeping in regard the requirement laid down under the aforesaid statute, advertisement in question and also the judgment relied by the respondent No. 5 in the case of Dr. Anant Kumar Akhouri Vrs. The Vice Chancellor, Ranchi University & others (Supra) and the case of Budhadeo Prasad Singh Vrs. The State of Bihar & others(Supra) the claim of respondent no. 5 that he possessed 12 years teaching experience in a degree college cannot be shrugged aside. It is therefore apparent that the respondent no. 5 fulfilled the minimum eligibility criteria as per the advertisement for being recommended for appointment to the post of Principal. The selection committee adjudged his suitability and eligibility before making the recommendation which was never under challenge. This Court further feels that the appointment were made pursuant to the recommendation made by the B.C.S.C dated 3.1.2000 and the writ has been preferred in the year 2007 seeking issuance of quo-waranto after a lapse of 7 years and in these circumstances following the judgment of the Hon'ble Supreme Court rendered in the similar circumstance in the case of Dr. M. S. Mudhol & Another Vrs. S.D. Halegkar & others(Supra), this Court does not consider it proper to exercise its discretionary jurisdiction in order to interfere with the appointment of respondent no. 5, who is continuing, thereafter, till date functioning as Principal. 11. In that view of the matter, this writ application is dismissed as without having any merit. Application dismissed.