A.K. Ganguly, J.
1.The subject-matter of challenge in this writ petition is an order dated 14.6.1994 by which the Secretary, Department of Higher Education Government of Bihar, Patna has refused the prayer of the petitioner for her absorption as a Lecturer in Ganga Devi Manila College, Kankarbagh, Patna (hereinafter called the said College). By the said order, it was held that the appointment of respondent Nos. 6 and 7, namely, Smt. Renu Sinha and Smt. Prabha Sahay respectively are adjusted against the two sanctioned posts in the department of Ancient Indian History in the said College.
2. Certain relevant facts are noted below:
Pursuant to advertisement dated 22.7.1985 published in the daily Searchlight by the said College authorities, the petitioner applied for the post of Lecturer in Ancient Indian History in the said College. The said advertisement was published by the Secretary of the Governing Body of the said College. The assertion of the petitioner is that at the time of her application, she had B.A. (Hons.) degree in the subject of Ancient Indian History and also M.A. degree in the Ancient-Indian History with 67 per cent marks and was eligible to apply for the said post. Pursuant to the said application, the petitioner was called for interview an 30.8.1985 and the petitioner appeared before the Selection Committee. The Selection Committee prepared a panel in which the petitioner was at the top of the panel and the Selection Committee recommended the case of the petitioner for appointment. Pursuant to such recommendation of the Selection Committee dated 30.8.1985, the petitioner was appointed by the Secretary of the Governing Body of the said College by appointment letter dated 4.11.1985 to the post of Lecturer in the Department of Ancient Indian History and pursuant thereto, the petitioner joined the said post. Thereafter, the said College was made a constituent unit of Magadh University. The petitioner's case is that on 23.11.1985, a list of teaching and non-teaching staff of the College employees was prepared and handed over to the University authorities and the name of the petitioner was appealing therein as Lecturer in Ancient Indian History. As against the aforesaid mode and manner of appointment of the petitioner, this Court also notices the mode and manner of appointment of respondent Nos. 6 and 7.
3. In the counter-affidavit filed by respondent Nos. 6 and 7, the facts which have been stated, are that respondent No. 6 was appointed on 10.8.1981 by the Secretary of the Governing Body of the said College as Lecturer in Ancient Indian History and respondent No. 7 was appointed on 7.9.1981 in the same post as a Lecturer by the Secretary of the Governing Body of the said College. Those two documents have been annexed as Annexures A and A/1 to the counter-affidavit filed by those respondents. It could not be substantiated before this Court by the learned Counsel for respondent Nos. 6 and 7 that prior to the appointment of respondent Nos. 6 and 7, there was any advertisement issued and pursuant to which they were appointed. Learned Counsel, on the other hand, relied on an advertisement dated 9.9.1981 which is Annexure-C to the said counter-affidavit. From the date of the said advertisement, it became obvious that the same was inserted after the appointment of respondent Nos. 6 and 7.
4. Attention of this Court has also been drawn to a panel of candidates dated 6.2.1982 in which the names of respondent Nos. 6 and 7 figure as selected candidates but the fact remains that much prior to such selection and prior to such insertion of advertisement respondent Nos. 6 and 7 were appointed.
5. The next important fact is the question of sanction of posts in that subject in the said College. It appears from Annexure-F to the counter-affidavit filed by respondent Nos. 6 and 7 that by communication dated 4.7.1985 made by Special Secretary, Government of Bihar, Department of Education to the Registrar of Magadh University sanction has been accorded to two posts in Ancient Indian History in the said College. In the said communication it has been made clear that while making appointment to those two posts, the regulation relating to reservation should be kept in mind. A copy of the said notification was also sent to the Principal of the said College on 22.8.1985.
6. Much argument has been advanced on the interpretation of the said notification and the Court may have to refer to the said notification hereinafter.
7. Learned Counsel for Respondent Nos. 6 and 7 has urged that those two posts have been created for regularizing the services of respondent Nos. 6 and 7 whereas learned Counsel for the petitioner has submitted that those two posts were sanctioned for new recruitment and not for regularization inasmuch as in the said sanction letter of those two posts, it was made clear that while making appointment on the said sanctioned post, the provisions relating to reservation should be kept in mind. Learned Counsel for the petitioner submits that this clause in the order dated 4.7.1985 unmistakably shows that sanction to the creation of those two posts was meant for new appointment and not for regularization.
8. On behalf of the State, it. has been admitted that excepting that only document which has been issued by the State Government granting sanction to two posts in the Department of Ancient Indian History, there is no other order giving sanction to the creation of the post in the said Department in the said College.
9. Learned Counsel for the petitioner submits that it is only after such sanction was granted on 4.7.1985, the advertisement was inserted by the Governing Body of the said College on 22.7.1985 pursuant to which the petitioner applied and faced the selection and interview and she was ultimately appointed on 4.11.1985 as stated hereinabove.
10. The petitioner's case is that even though her appointment was made on a regular basis and according to a valid advertisement, her name was not shown in the list submitted by three men's committee which submitted its report before the Vice-Chancellor of Magadh University on 24.11.1986. Pointing out that her name was not shown in the list of three men's Committee, the petitioner subsequently made representations also. The petitioner's case is that thereafter on 20.11.1987 the said Magadh University forwarded the name of the petitioner with relevant documents to the High Power Screening Committee which was constituted by the Respondent-State to consider the case of the petitioner but as the petitioner came to know that the respondent-State has not. considered the case of the petitioner, the petitioner came before this Court and filed a writ petition being C.W.J.C. No. 6001 of 1987. The said writ petition was thereafter taken up for hearing on 17.1.1992 and on a query this Court found that the High Power Screening Committee had not considered the case of the petitioner and the same stood abolished by that time. As such a Bench of this Court directed the Respondent-Commissioner and Secretary, Human Resources Development Department to hear the petitioner and to submit a report to the Hon'ble Court. Thereafter, the Commissioner and Secretary, Human Resources Development Department, who heard the petitioner, wide order dated 30.4.1992 rejected the claim of the petitioner on two grounds, namely, the appointment of the petitioner was not made against sanctioned post and that the provisions of Section 57(A) of the Bihar State Universities Act, 1976 has not been followed in the matter. The said order dated 30.4.1992 has been disclosed in this matter as Annexure-9.
11. The said order was also challenged by the petitioner in the writ petition i.e. C.W.J.C. No. 6001 of 1987 by filing an amendment petition. On 4.4.1994. a learned Judge of this Court on hearing the parties set aside the order dated 30.4.1992 (Annexure-9) and remanded the matter before the Secretary, Higher Education to consider the matter afresh and take a final decision after hearing the petitioner and other Lecturers.
12. In the judgment dated 4.4.1994 passed by a learned Judge of this Court, the facts of this case as urged by the petitioner are noted. The learned Judge also noted the contentions raised on behalf of the petitioner that the petitioner applied for appointment in response to the advertisement which was issued after sanction of the post in July 1985. Noting those submissions, the learned Judge in paragraph 6 of the judgment observed 'prima facie, I find substance in the aforementioned submission of Mr. Mukhopadhaya. The Commissioner has not considered the case of the petitioner from this angle. He has not at all taken into consideration the advertisement which appears to have been issued after sanction of the post.' After recording this finding, the matter was remanded to the Secretary, Higher Education for reconsideration of this matter. In the said judgment, therefore, there is a prima facie finding in favour of the contention of the petitioner that the advertisement against which he was appointed and pursuant to which respondent Nos. 6 and 7 did not apply was issued after sanction of the post. Against this finding of the learned Judge, there has been no appeal. Therefore, this finding is in a sense binding between the parties.
13. After remand the matter was considered by the authority concerned and upon consideration of the facts, the impugned order dated 14.6.1994 was passed which has been challenged by the petitioner in this writ petition.
14. It may be noted here that in the previous writ petition being C.W.J.C. No. 6001 of 1987, respondent Nos. 6 and 7 were not parties. Pursuant to the order of this Court dated 4.4.1994 in the said proceeding there was a direction that the matter should be heard by the Secretary of the Higher Education, Government of Bihar, Patna in presence of Respondent Nos. 6 and 7 and as such those respondents were heard before the order was passed. In the impugned order dated 14.6.1994, the respondent concerned has recited all the facts and after reciting the facts, the respondent concerned has given his reasons in paragraph 5 of the order. In paragraph 5. it has been noted by the Officer concerned that the advertisement was published before getting information in respect of a approval of the sanction of the post. Therefore, in that view of the matter, the respondent concerned refused to accept that the advertisement was published for the two posts duly sanctioned by the State Government. Moreover, it has been further held by the respondent concerned that in the advertisement, it is not mentioned that this is made against the posts sanctioned by the State Government. As against that fact the respondent concerned observed that the appointment of respondent Nos. 6 and 7 was confirmed by the College Service Commission and it is only when the service of a Lecturer in an affiliated College is confirmed by the College Service Commission after making proper inquiry, such services becomes regular. From these chain of facts, the respondent concerned came to the conclusion that the appointment of the petitioner was not. against the sanctioned post. In coming to the said conclusion. the provisions of Section 35 of the Bihar Universities Act, 1976 (herein after called the said Act) has also been noted. The other fact on which reliance has been placed in order to come to the conclusion as aforesaid, is that the name of the petitioner was not mentioned in the panel of teaching and non-teaching staff of the said College which was prepared by the three men's Committee at the time when the College was made constituent. It has also been noted that the Committee in its report mentioned that many manipulations and alterations have been made in the proceeding book of the College.
15. This Court cannot accept the reasons given by the respondent concerned in the said order for the reasons given below:
It is an admitted position that the State Government has sanctioned two posts in the department of the Ancient Indian History in the said College by an order dated 4.7.1985. Assuming that before the said sanction order was communicated to the authority of the said College, the advertisement was inserted but it is an admitted position that by letter dated 22.8.1985, a communication about the said two posts was made to the Principal of the said College and the petitioner's appointment was made at a much later date i.e. on 4.11.1985. Therefore, with the knowledge of the fact that two posts have been sanctioned in the Department of the Ancient Indian History in the said College by the State Government the petitioner's appointment has been made after following due process of selection.
16. Apart from that this Court on perusing the order granting sanction is definitely of the opinion that the said sanction is in respect of direct appointment and not in respect of certain existing so-called appointments which were made without there being sanctioned vacancy or sanctioned post. In coming to this conclusion, this Court is relying on the wordings in the sanction order which is set out below:
UPARYUKT PADON PAR NIYUKTIYAN AARAKSHAN SAMBANDHIT PARINIYAMON KO DHYAN MEIN RAKHTE HUYE KIJAYEGI.
17. The respondent-authority has not at all considered the purport of this clause in the sanction order. This clause can only relate to appointment which is to be made inasmuch as it is clear that for making appointment to the sanctioned post, the provisions relating to reservation must be kept in mind. Therefore, this sanction must relate to a future appointment and cannot relate to regularization of two so-called appointment against. nonsanctioned vacancy.
18. In any event no body, particularly, respondent Nos. 6 and 7 have challenged this clause in the sanction order. This clause means that provision relating to reservation must be observed. Since that direction is against the two sanctioned posts, the appointment of respondent Nos. 6 and 7 cannot be regularized inasmuch as both of them are general category candidates. Therefore, regularization of two general category candidates who have been allegedly appointed cannot be made against the two sanctioned posts where reservation restrictions must be observed. Therefore, construing the sanction order in the proper context, this Court cannot hold' that it relates to appointments already made. This Court is clearly of the opinion that it must relate to the future appointment and it is undeniable that the petitioner's appointment was made in future i.e. about four months after the sanction order. Therefore, in the considered opinion of this Court, it must be held that the petitioner's appointment was made against the sanctioned posts.
19. It is also not in. dispute that the petitioner's appointment was made after following the regular procedure of selection as has been noted above.
20. Learned Counsel for the State in this case is supporting the stand as taken in the impugned order and submitted that since the name of the petitioner was not there in the report of the three men's Committee, her case cannot be considered.
21. This Court in this connection may revert to the order of this Court v dated 4.4.1994 in C.W.J.C. No. 6001 of 1987 in which the Hon'ble Court has taken into consideration the fact that the name of the petitioner was not placed in the report of the three men's Committee, as also in the order of the Commissioner and Secretary to the Human Resources Department dated 9.5.1992. The learned Court has also considered the grounds on which the order dated 9.5.1992 was passed against the petitioner. It was based on two grounds. First is that the petitioner's name stands at a lower position in the said department in view of the earlier appointment of two other persons. Therefore, the petitioner cannot make her claim against the sanctioned posts. The other ground was that the appointment of the petitioner was also made in violation of the provisions of Section 35 along with Section 57-A of the said Act. But the learned Judge considering all these grounds quashed the said order. Therefore, those grounds which were considered against the petitioner in the order of the Commissioner dated 9.5.1992 cannot be again repeated by the authorities after the order dated 9.5.1992 was quashed by this Hon'ble Court. Unfortunately, the stand of the State Government is again based on two grounds and the impugned order is also in a sense based on those very grounds.
22. This Court is unable to accept those grounds as those grounds have already been rejected by this Court by order dated 4.4.1994.
23. Learned Counsel for respondent Nos. 6 and 7 has very strenuously urged that no adverse order can be passed against the appointment of respondent Nos. 6 and 7 in this proceeding inasmuch as that would be barred by the principles of res-judicata or principles of constructive res Judicata in view of the earlier decision of this Court in C.W.J.C. No. 6001 of 1987.
24. It is obvious that the doctrine of res-judicata is a doctrine inter-parties. In the previous writ petition being C.W.J.C. No. 6001 of 1987 respondent Nos. 6 and 7 were not even made parties. Since both of them were not parties, the validity of their appointment was not in issue and it was, in fact, not in issue. Therefore, there cannot be a res judicata on a question which was not in issue in the previous proceeding. It is only after the order of the learned Judge dated 4.4.1994 was passed in C.W.J.C. No. 6001 of 1987 that respondent Nos. 6 and 7 were heard by the Departmental Secretary and the impugned order was passed. Thereafter, in this proceeding while the impugned order was challenged, respondent Nos. 6 and 7 were made parties and the legality of their appointment has become an issue. Therefore, there is no bar on the ground of res judicata in probing the legality of appointment of respondent. Nos. 6 and 7.
25. The next point on which learned Counsel for respondent Nos. 6 and 7 has relied is that the appointments of respondent Nos. 6 and 7 have been confirmed on a temporary basis by the College Service Commission and thereafter on the permanent basis by the College Service Commission. Their appointments being thus confirmed by the College Service Commission, the same cannot be assailed now. It is clear from the fact recited in this writ, petition that the appointment of respondent Nos. 6 and 7 are initially void inasmuch as they were appointed mucl prior to the insertion of any advertisement. It is common ground that the advertisement was issued on 9.9.1981 and both respondent Nos. 6 and 7 were appointed earlier to that date. Respondent No. 6 was appointed on 10.8.1981 and respondent No. 7 was appointed on 7.9.1981. The selection proceeding was held in 1982 much after the appointment. In a process where the appointment takes place prior to insertion of advertisement and prior to any selection proceeding, the said process cannot be, by any legal norms, called a valid appointment process. Such appointments are void in law and unconstitutional in nature being violative of provisions of Articles 14 and 16 of the Constitution of India. It is beyond any dispute that in 1981, there was no sanctioned vacancy of the posts. Therefore, such appointments of respondent Nos. 6 and 7 were made when there did not exist any sanctioned post. In other words, such purported appointments were made without following any proper selection procedure and without there being any sanctioned vacancy. Therefore, this Court is of the opinion that such appointments of respondent Nos. 6 and 7 were void from the very inception.
26. Now, the question is that is the legal effect of confirmation of such a void appointment. The judicial opinion in this matter is quite clear. Something which is void from the very inception does not become valid by the subsequent confirmation. It has been made very clear in by Lord Denning in his inimitable words in the case of Macfoy v. United Africa Co. Limited reported in (1961) 3 All. E.R. page 1969. The passage which I quote below is very succinct on this point:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside It is automatically null and void without more ado, though it is some times convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
27. The apex Court on this point has also expressed the same view which is reported in the case of Baradakanta Mishra v. High Court of Orissa and Anr. reported in : AIR1976SC1899 . Chief Justice A. N. Ray, as His Lordship then was, put this proposition in the following words:
The confirmation by the Governor cannot have any legal effect because that which is valid can be confirmed and not that which is void.
28. In a subsequent judgment of the Supreme Court in the case of Ashwani Kumar and ors. v. State of Bihar and Ors. reported in : (1997)IILLJ856SC , dealing with such a large-scale void appointments. Hon'ble Mr. Justice Majmudar speaking for the Supreme Court observed as follows:
So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question, of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility. It would amount to decorating a still bom baby.
29. It is obvious that the initial so-called appointment of respondent Nos. 6 and 7 was against the non-existent vacancy and purported regularization of such an appointment is, if I may say, in the words of the Hon'ble Supreme Court, 'decorating a still born baby'.
30. Therefore, this argument that just because the so-called appointment of respondent Nos. 6 and 7 have been subsequently allegedly confirmed by the College Service Commission, such appointment became valid is not acceptable to this Court.
31. The further submission of the learned Counsel for respondent Nos. 6 and 7 is that after such appointment, respondent Nos. 6 and 7 have been continuing to their post since 1981 and the petitioner after her appointment has not continued in her post is also a factor which should weigh with the Court in not setting aside the appointment of respondent Nos. 6 and 7. This Court finds that this is the irony of the situation. The petitioner who got the appointment through valid process and who was appointed after the posts had been validly sanctioned, was not being allowed by the college authorities to continue in her post whereas the persons who have been appointed without facing any selection procedure and when there was no sanctioned vacancy are continuing on their appointment. This may be the stark reality in the State of Bihar, but this cannot be accepted by a Court as legally valid.
32. It is regrettably true that in the State of Bihar, especially in the educational institutions, there are glaring cases of illegal appointments in large numbers. Most of the times persons illegally appointed are allowed to continue in service for years but when such appointments are challenged before the Court, the usual plea is that since the appointees have been continuing for a long span of time, they should not be disturbed. Now, if the Court also does not set right such glaring cases of illegality just because the illegally appointed persons have managed to continue for some, time the concept of Rule of Law will become a dead letter and cases of illegal appointment will receive a boost. There can be no equity in favour of a person who has vitiated the sanctity of an education institution by entering the service through a back door. So the appointments of respondent Nos. 6 and 7 cannot be upheld by this Court and the same are quashed.
33. Even though there is no prayer for quashing the appointment of respondent Nos. 6 and 7, but in the course of argument, the petitioner's Counsel has assailed the appointment of respondent Nos. 6 rind 7 and the Counsel for respondent Nos. 6 and 7 tried to defend their appointment. It is well settled that Court can grant or mould a relief in view of the facts which come before it in the course of hearing.
34. In this matter, even though the University has been made a party and notices have been served upon it, no body has appeared on behalf of the University at the time of hearing. In the instant case, this Court adjourned the matter for more than one occasion in order to find out whether the respondent-State can sanction another additional post in order to accommodate the petitioner but the State's stand is that it is not possible to do so. In that, view of the matter, this Court had to decide the validity of appointment of the petitioner as well as that of respondent Nos. 6 and 7.
35. On the basis of the discussions made above, this Court concludes (i) that the petitioner was appointed on the basis of a proper selection procedure and that the appointment was made against a sanctioned post, (ii) the appointments of respondent Nos. 6 and 7 were not on the basis of any valid selection procedure and their appointments were also not against any sanctioned post. Therefore, this Court cannot approve of their appointment. The appointment of respondent Nos. 6 and 7 must come to an end.
36. This Court, therefore, directs that the Principal of the said College should place the appointment of the petitioner for the concurrence of the University Service Commission within a period of two months from today and also directs the respondent-College authority to allow the petitioner to work in the said College immediately and pay the petitioner's salary and emoluments as Lecturer in the department of Ancient Indian History in the said College in accordance with law from the month of June 2000. The petitioner is entitled to join the said College in view of this declaration made by this Court in this judgment. However, the petitioner will not be entitled to claim any thing by way of salary for the period for which she did not work in the said College.
37. This writ petition is thus allowed. The impugned order at Annexure-1 is hereby quashed. There will be no order as to cost.