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2014 DIGILAW 997 (PAT)

Arvind Kumar Singh v. State Of Bihar

2014-09-15

CHAKRADHARI SHARAN SINGH

body2014
ORDER : 1. Heard learned counsel for the petitioner, learned counsel appearing on behalf of the Managing Committee of Ugan Triveni College Chamtha, Barkut as well as learned counsel appearing on behalf of the State. 2. The petitioner has filed the present writ application to call for the order by which Respondent No. 5 is said to have been appointed on the post of Lecturer in Physics, though, according to the petitioner he was never appointed and appeared in the interview for the post in question. The petitioner has also prayed for revision of his pay benefit as per 6th Pay Recommendation Commission report. 3. It is the petitioner’s case that after following due procedure of appointment, he was appointed as Lecturer in Physics in the said College on 05.07.1995 and had been working as Lecturer since then continuously up to 2010. The gist of grievance of the petitioner is that the College is giving undue favour to Respondent No. 5 by treating him as serving against the post of Lecturer in Physics though as a matter of fact, the petitioner was appointed against that post after following due procedure; in the matter of payment from the fund released by the State Government to be paid to the teachers of the College. 4. The College in question is the privately managed institution and there is no controversy about this. Opposing the petitioner’s claim, a counter affidavit has been filed by the Managing Committee of the College stating that the petitioner was never appointed on the post of Lecturer and in the Proceeding Book of the College there is no entry with respect to petitioner’s appointment. It has also been stated that in the year 2005, when the Bihar Intermediate Education Council, Patna had conducted inspection of the College, petitioner’s name did not figure. It has been stated that the petitioner was allowed to engage certain classes on adhoc basis for which honorarium was paid to him. It has also been stated that Respondent No. 5 was appointed as Lecturer in Physics in the College on 21.05.1995 and since then he has been working in the College against sanctioned post. It has further been stated that with effect from 27.06.1998, on the recommendation of Bihar College Service Commission, Respondent No. 5 is working on the first post of Lecturer in the Department of Physics. 5. It has further been stated that with effect from 27.06.1998, on the recommendation of Bihar College Service Commission, Respondent No. 5 is working on the first post of Lecturer in the Department of Physics. 5. A rejoinder to the counter affidavit has been filed by the petitioner. In the said rejoinder, though the stand of the Managing Committee that petitioner was not appointed as Lecturer in the College has been denied but the petitioner has not denied the fact that Respondent No. 5 has been functioning against first post of Lecturer in the Department of Physics. 6. Learned counsel appearing on behalf of the petitioner has vehemently submitted that the petitioner has brought on record ample evidence to substantiate that he was duly appointed as Lecturer in the College by the Governing Body and that the petitioner had in fact functioned as examiner also on appointment by Bihar School Examination Board for the purpose of evaluation of answersheets. He has, therefore, submitted that the petitioner has a legal right to receive his share from the grant in the aid being released by the State Government for payment of salary to the teachers. 7. Learned counsel appearing on behalf of the Respondent Governing Body of the College, while opposing the prayer in the writ application, has raised a preliminary objection over maintainability of the writ application. He has relied upon a recent Division Bench judgment of this Court reported in 2013(1) P.L.J.R. 269 (Santosh Kumar Vs. State of Bihar) to contend that since the College in question is being managed and maintained by the Governing Body, no right would lie in the present facts and circumstances of the case for the relief prayed for. He has also relied upon judgment of this Court in case of Smt. Manju Devi Vs. District Superintendent of Education, Bhagalpur and Ors. reported in 1987 P.L.J.R. 962. 8. In reply, learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in case of Mubarak Hussain Vs. State of Bihar and others reported in 1993 (1) P.L.J.R. 407 that an application under Article 226 of the Constitution of India will lie for the relief prayed for in the writ application. 9. 8. In reply, learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in case of Mubarak Hussain Vs. State of Bihar and others reported in 1993 (1) P.L.J.R. 407 that an application under Article 226 of the Constitution of India will lie for the relief prayed for in the writ application. 9. As has been noted above, the petitioner has prayed for calling for the order by which Respondent No. 5 is said to have been appointed as Lecturer in Physics in the said College. There is specific averment made in the counter affidavit filed on behalf of the Governing Body of the College that Respondent No. 5 is functioning as Lecturer on the recommendation of Bihar College Service Commission. There is no denial of this fact, though rejoinder to the counter affidavit has been filed on behalf of the petitioner. The fact, therefore, that Respondent No. 5 is functioning as Lecturer in the College on the recommendation of Bihar Service College Commission stands admitted. The other relief which has been sought for by the petitioner is that his pay should be revised as per 6th Pay Revision Commission report. 10. I do not find any basis for such prayer in the pleadings to the writ application. To say the least, the second prayer sought for, to me appears to be preposterous having no basis at all. Since I have decided the matter on merit, I have not gone into the question of maintainability of this writ application. 11. This writ application is accordingly dismissed.