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2014 DIGILAW 1209 (PAT)

Yogendra Nath Das, S/o Late Bal Govind Lal Das v. Chancellor of The Universities of Bihar

2014-12-08

CHAKRADHARI SHARAN SINGH

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ORDER : Chakradhari Sharan Singh, J. The petitioner seeks quashing of notification issued vide memo No. 1/08/CCDC dated 29.9.2008 whereby, respondent no.6 has been appointed as Controller of Examination of Tilka Manjhi Bhagalpur University, Bhagalpur. The petitioner also seeks a direction to the respondents to appoint him as Controller of examination with effect from 29.9.2008, along with all consequential monetary benefits as according to him he was the only applicant fulfilling all the eligibility criteria as laid down in Advertisement NO. 6 of 2007 issued by the University for appointment to the post of Controller of examination. 2. An advertisement inviting applications for appointment to the post of Controller of examination in the University was issued, which is Annexure-1 to the writ application. Following was prescribed the requisite qualification for appointment :- "1. No person shall be deemed to be qualified to hold the post of the Controller of Examinations unless he/she possesses experience of University affairs, or has been associated with the teaching, or administration or both at least in a degree College for at least then years. 2. Preference will be given to those having knowledge in computer." 3. The petitioner was senior Lecturer in Jamalpur College, Jamalpur which is a constituent Unit of Tilka Manjhi Bhagalpur University, Bhagalpur. Respondent no.6 had also applied, while serving a Lecturer at Dr. Jagarnath Mishra College, Muzaffarpur under Bihar University. Through interview letter dated 20.8.2008 addressed to the petitioner, he was asked to appear before the Selection Committee on 20th August, 2008 at 11 A.M. The letter required the petitioner to bring certain documents for verification which included Clause-6 :- "6. For a teacher/employee working in an affiliated college/Institution-letter of appointment on substantive basis" 4. The petitioner participated in the process of selection. The Respondent no.6 was, however, selected and a notification to this effect was issued vide No. 01/08/CCDC dated 29.9.2008 under the signature of Coordinate College Development Council (Annexure-4) of the University, which is under challenge in the present writ application. 5. It is the plea of the petitioner that several irregularities were committed by the University and the Selection committee in the matter of appointment against various posts made on the basis of advertisements issued on the same date including posts of Principal of Colleges. 5. It is the plea of the petitioner that several irregularities were committed by the University and the Selection committee in the matter of appointment against various posts made on the basis of advertisements issued on the same date including posts of Principal of Colleges. It has also been submitted on behalf of the petitioner that appointments to the post of Principals have been cancelled by this Court on the ground of various irregularities which grounds could for the pose of challenge to the present appointment of respondent no.6 on the post of Controller of Examination. My attention has been drawn by learned counsel for the petitioner to Annexure-11 to the writ application which is said to be "special audit over various allegations regarding financial irregularities committed by Dr. Smt. Prema Jha, Ex Vice Chancellor of Tilka Manjhi Bhagalpur University Bhagalpur". Referring to the said report, learned counsel for the petitioner has submitted that Audit team found the petitioner's appointment as Controller of Examination in violation of the terms of advertisement inasmuch as, the audit team found that as per Section 2(f) of Bihar State Universities Act, 1976, the degree college meant an institution maintained or controlled by the University or the State Government. The audit team is said to have indicated that Clause 6 of the interview letter, as noted above giving opportunity to the teachers working in affiliated colleges for appointment to the post of Controller of Examination, was only for the purpose of extending benefit to a particular candidates, i.e. respondent no.6. 6. Learned counsel appearing on behalf of the petitioner has also submitted that the audit team found wrong with the signature of CCDC under the notification, though it should have been issued by the Registrar of University who was available on that date. While referring to the said audit report, learned counsel for the petitioner has made his submission, taking the same grounds, as taken in the audit report and has submitted that the respondent no.6 being a teacher in an affiliated College was not qualified for being considered for the post of Controller of Examination and his appointment as such deserves to be cancelled being in breach of statutory provisions as well as the requirements of the advertisement. He has contended that the respondents attempted to change the rule of the game when the game was on and according to him the respondents should have adhered to in terms of the advertisement and should not have allowed teachers in an affiliated College to participate and get selected and appointed for the post of Controller of Examination. He has relied upon judgment of this Court in case of Navin Kumar v. State of Bihar dated 8.9.2011 passed in CWJC No. 2103 of 2009 and other analogous cases. 7. Learned counsel for the petitioner has also submitted that appointment of respondent no.6 having been not approved by the Syndicate is illegal, for this reason also. 8. This is not in dispute that after the appointment of Respondent no.6 as a Controller of examination vide notification dated 29.9.2008, the petitioner filed the present writ application on 2.11.2010 when he was about to attain the age of superannuation of 62 years of age, which is maximum age prescribed for holding the post of Controller of Examination. This is also not in dispute that petitioner has not only crossed the age of 62 years sometime after filing of the present writ application, rather he as a matter of fact, retired as teacher, after attaining the age of 65 years. This is also not in dispute that after he received the interview letter, Clause 6 of which required that teachers of affiliated colleges were required to bring letter of appointment on substantive post, giving a indication that teachers working in affiliated Colleges were also being considered for such appointment, he did not raise any objection at any stage. It is in this background that learned counsel appearing on behalf of respondent no.6 has submitted that the petitioner does not have locus standi to question the appointment of the petitioner as Controller of Examination. He submits that the consequential relief as sought for by the petitioner for a direction to appoint him as Controller of Examination is not possible to be granted. According to him, the issue raised in the present writ application has become academic only and no adjudication is required. He submits that the consequential relief as sought for by the petitioner for a direction to appoint him as Controller of Examination is not possible to be granted. According to him, the issue raised in the present writ application has become academic only and no adjudication is required. He has further submitted that having not raised any objection against consideration of teachers working in affiliated Colleges for the purpose of selection as Controller of examination, when the selection process was on the petitioner is now estopped from taking such plea, now after publication of result, way back on 29.9.2008. As regards the petitioner's plea that only teachers working in constituent Colleges were eligible to be considered for appointment to the post, he has submitted that there is no such limitation under the Bihar State Universities Act, 1976. He has also submitted that the matter with respect to appointment of respondent no.6 as Controller of Examination had gone to the Chancellor also at the instance of some aggrieved persons, (not this petitioner) whereupon the appointment of respondent no.6 as Controller of Examination of the University and his inter University transfer from B.R.A. Bihar University, Muzaffarpur to Tilka Manjhi Bhagalpur University, Bhagalpur was stayed by an order dated 6.2.2014. However, upon detailed examination and consideration, complaints against the respondent no.6 have been dropped and a notification to this effect has been issued by the Governor Secretariat Bihar, Patna dated 3.7.2014, on the strength of which the petitioner is discharging his function as Controller of Examination. 9. Mr. Rajendra Kumar Giri, learned counsel appearing on behalf of his Excellency the Chancellor has nothing more to add what is there in the said notification dated 3.7.2014. In course of submission, learned counsel for the petitioner has aggressively contended that a teacher in an affiliated College was not eligible for consider for appointment as Controller of Examination in terms of the advertisement which required a person having experience of teaching in "degree College". He has vehemently submitted that an affiliated College cannot be a degree college. In support of his submission, he has relied upon a definition of the word "College" as occurring in Section 2(f) of the Bihar State Universities Act, 1976. 10. He has vehemently submitted that an affiliated College cannot be a degree college. In support of his submission, he has relied upon a definition of the word "College" as occurring in Section 2(f) of the Bihar State Universities Act, 1976. 10. At the first place I am convinced by the submission made on behalf of respondent no.6 that since consequential relief as sought for by the petitioner seeking a direction to appoint him as Controller of Examination cannot be granted, as he has crossed the age of 62 years soon after filing of the writ application, the question involved in the present application has become only academic. The challenge to appointment of respondent no.6 as Controller of Examination, however, can be gone into by this Court if it appears to the Court that he did not have the basic qualification to be appointed to the post. Secondly, Mr. Abhinav Shrivastava, learned counsel for respondent no.6 is right in his submission that petitioner is now estopped from taking a plea against appointment of respondent no.6, after having participated in the process of selection knowing well that teachers working in affiliated Colleges were also being allowed to participate in the process of selection. It is evident from the pleadings that not only that the petitioner knew that such persons are being considered for selection, he did not raise any objection before any authority, he took a chance and participated in the process of selection. Once the process of selection was over and notification appointing respondent no.6 was issued, the petitioner filed the present writ application two years after such appointment. 11. Mr. Abhinav Shrivastava, learned counsel appearing on behalf of the petitioner has contended that the petitioner cannot be said to be having any interest to the post soon before he was going to cross the age of 62 years, being the maximum age for continuing as Controller of Examination. He has accordingly, questioned the bona fide of the petitioner in approaching the Court seeking quashing of the notification by which the respondent no.6 has been appointed as Controller of Examination. 12. The Supreme Court as well as this Court have consistently held that after having participated in the process of selection, a person cannot question the process itself after having been declared unsuccessful. This writ application, in my opinion, is fit to be dismissed on this score only. 13. 12. The Supreme Court as well as this Court have consistently held that after having participated in the process of selection, a person cannot question the process itself after having been declared unsuccessful. This writ application, in my opinion, is fit to be dismissed on this score only. 13. However, I intend to go into the submission made on behalf of the petitioner that respondent no.6 did not have the basic eligibility to be appointed as Controller of Examination with reference to Section 2(f) of the Bihar State Universities Act, 1976 and based on the said submission, his contention that the respondents changed the rule of the game when the game was on. As has been noted above, the experience of teaching in "degree College" for at least ten years was one of the alternative qualification prescribed for appointment to the said post of Controller of Examination. Section 2(f) of the Bihar State Universities Act, 1976 defines College as follows :- "2(f) "College" means an institution maintained or controlled by the University or maintained by the State Government in which instruction is given subject to the provisions contained in Clause (16) of Section 4 to the students of the University up to or below the post graduate standard under conditions prescribed in the Statutes." 14. Section 2(c) of the same Act defines affiliated College as follows :- "2(c) "affiliated College" means educational institution having received privileges of the University according to the provisions of this Act and University Statutes relating thereto;" 15. The term "degree College" has not been specifically defined in the 1976 Act. The degree College certainly would be a College imparting education up to degree level. If restrictive meaning of a "College" as given in Section 2(f) of the Act is taken for the purpose of interpreting "degree College" as occurring in the advertisement, it will lead to an anomalous situation for the reason that Section 2(f) read with Section 2(y) which defines University, would confine the selection for such teachers only having experience in Colleges in the University established under the Act. It was not intended through the advertisement that teachers having experience in Institution maintained or controlled by the University or maintained by the State Government shall only have the opportunity to be considered for appointment to the post of Controller of Examination. It was not intended through the advertisement that teachers having experience in Institution maintained or controlled by the University or maintained by the State Government shall only have the opportunity to be considered for appointment to the post of Controller of Examination. Such restrictive meaning of "degree College" as occurring in the Advertisement No. 6 of 2007 cannot be given. The plea as raised in this context cannot be accepted. 16. From the pleadings in the writ application, I find that there is no specific allegation of any mala fide against Members of the Selection Committee. As regards the plea that in the absence of approval by the syndicate, appointment of respondent no.6 cannot be said to be legal, nothing has been shown to me by the learned counsel for the petitioner that such approval by the syndicate is mandating for such appointment. I do not find any merit in this application. This application is dismissed accordingly.