Judgment:
S.K. Katriar and Kishore K. Mandal, JJ.
1. The appellants are aggrieved by the order dated 18.10.2006 passed, by a Learned Single Judge of this Court, in C.W.J.C. No. 3736 of 2006 Vinod Kumar Singh v. the Chancellor, The University of Bihar and Ors., whereby the writ petition at the instance of respondent No. 1 herein has been allowed, and the Bihar State University (Constituent Colleges) Service Commission (hereinafter referred to as 'the Commission'), has been directed to prepare a fresh list of 122 candidates, who had earlier been recommended for appointment on various teaching assignments in the three universities which now fall in the present State of Jharkhand, for appointment to the various universities which now fall within the present State of Bihar The two appeals arise out of a common order, raise common issues, and are, therefore, being disposed of by a common order. We shall draw the basic facts from the writ proceedings, except by reference to the two appeals.
2. The basis facts essential for the disposal of the appeals are not in dispute and may be briefly indicated. The then Bihar State University (Constituent Colleges) Service Commission (hereinafter referred to as the Commission), was charged with the duty of advertising the vacancies of teaching assignments in the various Universities governed by the Bihar State Universities Act 1976, and the Patna University Act 1976. The Commission had issued advertisement No. 2/1997 which had appeared in the local dailies on 1.4.1997 (Annexure-1) inviting applications for appointment to various teaching posts in the Universities of the undivided State of Bihar. The writ petitioner was also a candidate and was subjected to the selection process. Interview of the candidates had started on 1.12.1997, and had concluded in December 2001. Before the select list could be published, the undivided State of Bihar was, on account of operation of Bihar Re-organisation Act, 2000 (Act No. 30 of 2000), bifurcated into the present State of Bihar and the State of Jharkhand w.e.f. 15.11.2000. The results were finally published on 8.12.2002 (Annexure-3), whereby 930 candidates were recommended for appointment to the various Universities which now fall in the present State of Bihar, a total number of 122 candidates were recommended for appointment to the three Universities which now fall in the present State of Jharkhand. In other words, altogether 1052 candidates were recommended for appointment. It is evident on a perusal of the results that the recommendations were made University-wise and subject-wise.
3. Appointment letters were issued by different Universities in the present State of Bihar to the said 930 candidates who have joined and are working. In the mean while the State of Jharkhand issued order bearing memo No. 280/Ranchi, dated 10.9.2001 (Annexure-4), notifying therein that the process in relation to the appointment in the State of Jharkhand after 15.11.2000 shall be undertaken by that State itself. Any recommendation by the Commission after 14.11.2000 shall not be recognized by that State, nor the Commission shall undertake any fresh selection process with regard to the vacancies in Jharkhand, 25 of the said 122 candidates challenged the validity of the order dated 10.9.2001, by preferring Writ Petition (Civil) No. 1856 of 2003 before the Jharkhand High Court. The same was dismissed by a Division Bench by order 4.9.2003. Having met with failure before the Jharkhand High Court, another candidate from amongst the 122 persons preferred the present C.W.J.C. No. 3736 of 2006 Vinod Kumar Singh v. Chancellor, Universities of Bihar and Ors., raising identical issues. The writ petition has been allowed by the impugned order, and the Commission has been directed to prepare a fresh list accommodating the aforesaid 122 candidates for their appointment in various Universities falling in the present State of Bihar. Aggrieved by this order, the Commission preferred the present L.P.A. No. 904 of 2006, and J.P. University Saran at Chapra has preferred the analogous L.P.A. No. 975 of 2006.
4. Before we proceed further, we would like to recapitulate some other facts relevant in the present context. After the results were published on 8.12.2002 (Annexure-3), the Hon'ble Chancellor passed order dated 31.11.2002, directing that the Universities not to act upon the same. The matter was referred for investigation by the Cabinet (Vigilance) Department of the Bihar Government. The Hon'ble Chancellor modified his order on 24.6.2003 (Annexure-2), and lifted the ban on acting upon the recommendations of the Commission. Operative portion of the order dated 24.6.2003 (Annexure-2), is reproduced hereinbelow for the facility for quick reference.:
In the circumstances, I hereby remove the bar imposed by the then Chancellor vide letter dated 30.11.2002 on the appointment of the candidates selected for appointment as lecturers by the University (Constituent Colleges) Service Commission despite the fact that the selection and recommendation were sent under the signature of Sri Krishnandan Prasad, as OSD of the Commission even on the basis that his appointment was not legally valid, subject to the following conditions: Before appointing every candidate, an undertaking shall be taken by him/her in the enclosed proforma which is to the effect that in the event the selection made by the Commission is set aside, either pursuant to an order by a competent authority made on the basis of findings in an enquiry or by an order of the Court, he/she shall have no right to continue in the post of lecturer with effect from the date on which such an order is communicated.
The said order dated 30.11.2002, is reproduced in the order dated 24.6.2003. This was followed by appointment of the aforesaid 930 candidates in the various Universities of the present State of Bihar.
5. After the dismissal of the aforesaid writ petition by the Jharkhand High Court, various candidates from amongst the aforesaid 122 persons preferred various writ petitions in this Court all of which were disposed of by a common order 29.6.2005, passed in C.W.J.C. No. 11492 of 2003. (Annexure-5), whereby this Court felt difficulty in taking a final view of the matter in view of the pendency of the investigation. In that view of the matter, this Court requested the Hon'ble Chancellor to dispose of the issue by a reasoned order. Consequently, Hon'ble Chancellor considered the entire matter and passed his final order dated 18.11.2005 (Annexure-6). This was followed by the present C.W.J.C. No. 3736 of 2006 Vinod Kumar Singh v. Chancellor, Universities of Bihar and Ors., raising identical issues. The writ petition has been allowed by the impugned order, and the Commission has been directed to prepare a fresh list accommodating the aforesaid 122 candidates for their appointment in various Universities falling in the present State of Bihar. Aggrieved by this order, the Commission has preferred the present L.P.A. No. 904 of 2006, and J.P. University Saran at Chapra has preferred the analogous L.P.A. No. 975 of 2006. The net result is that the aforesaid 122 candidates have neither been appointed in the State of Jharkhand, nor in the present State of Bihar. L.P.A. No. 904 of 2006 had originally been preferred by the Commission, which has been dissolved by the Bihar University (Constituent Colleges) Service Commission (Repeal) Act 2007 (Bihar Act 19/2007), and the duties of the quondam Commission has now been assigned to the concerned Universities. The present appeal got dismissed for default leading to restoration application bearing M.J.C. No. 1648/2007. By order dated 13.2.2009, passed in the restoration application, the original appellant has been substituted by the State of Bihar. In view of the settled principle of law, substitution in the restoration matter is automatically carried on to the main matter also and, therefore, the State of Bihar is now the appellant.
6. Learned Advocate General appears in support of the appeal and submits that the erstwhile Commission had made recommendations for appointment merit-wise and subject-wise which was obviously in view of the position that it was published after bifurcation of the State. The present State of Bihar has carried out its duty by appointing the aforesaid 930 candidates in the State of Bihar. It has no duty to appoint the remaining 122 candidates recommended for the three Universities falling in the State of Jharkhand. He relies on the following judgments:
(i) : 2003 (9) S.C.C. 336 State of Uttaranchal v. Sidharth Srivastava (para 27 to 31)
(ii) : 2006 (3) S.C.C. 330 State of U.P. v. Raj Kumar Sharma. (para 12 to 15)
He next submits that the issues have already been canvassed before the Jharkhand High Court by as many as 25 from amongst the aforesaid 122 candidates raising identical pleas, and has been rejected. The present writ petition is an attempt in desperation. He next submits that the learned Single Judge has further erred in passing the consequential order of preparation of a revised list incorporating the 122 candidates for appointment in different Universities in Bihar. This may result in an un-implementable situation, for example, the present writ petitioner was recommended for the department of Philosophy, there may or may not be a vacancy in the department of Philosophy in Bihar. He next submits that the panel has already spent its force way back in the year 2003. He also submits that that the recommendations were with respect to the vacancies occurring till the date of interview, the candidates cannot be adjusted against future vacancies, in a situation where large number of appointments have already taken place. He lastly submits that the learned Writ Court has acted in excess of its jurisdiction. He next submits that misplaced sympathy should not be allowed to deflect the course of justice. He relies on the judgment of a learned Single Judge of this Court in Ram Dhani Singh v. State of Bihar reported in 2007 (4) P.L.J.R. 332.
7. Mr. Basant Kumar Choudhary, appearing for respondent No. 1 herein, has supported the impugned order. He submits that the writ jurisdiction is exercised in the interest of justice, and is of the widest amplitude. He relies on the following reported judgments:
(i) : A.I.R. 1961 S.C. 1731
(ii) : A.I.R. 1966 S.C. 81
(iii) : A.I.R. 1984 S.C. 802
(iv) : A.I.R. 1997 S.C. 645 (para 59 to 65)
He next submits that that the writ petitioner should not be allowed to suffer because of the fortuitous circumstance of bifurcation of the State, in a situation where the advertisement was published way back on 1.4.1997, and the entire delay is attributable to the authorities. The enormity of the situation is apparent from the fact that the interview was spread over a period covering 1.12.1997 to December, 2001. He next submits that the candidates in general, and the writ petitioner in particular, have been subjected to hostile discrimination. Persons lower in merit list have been appointed, and the petitioner with higher marks and higher position in the merit list, as well as others, have been left out. They should not be allowed to suffer. He relies on the judgment of the Hon'ble Supreme Court in the State of Uttaranchal v. Sidharth Srivastava reported in : 2003 (9) S.C.C. 336. He also submits that cause of action before the Jharkhand High Court was solely based on the said notification dated 10.9.2001 (Annexure-4). The present writ petition is at the instance of different person, and raise different issues and is for appointment in the State of Bihar. He next submits that the learned Single Judge has rightly, and in the interest of justice, given the consequential direction. He also submits that Tilka Manjhi Bhagalpur University has stated in its counter affidavit that 125 vacancies are available. The University has stated in its show cause in M.J.C. No. 273/2007 that steps are being taken to implement the direction of the learned Single Judge. He lastly submits that the contention advanced on behalf of the State of Bihar that the recommendation is University-wise and subject-wise, is an argument in desperation, and cannot defeat the ends of justice.
8. Learned Counsel for respondent No. 2 herein has supported the order dated 24.6.2003. He has also taken the stand that the order of the learned Single Judge may result in utter confusion. Learned Counsel for the various Universities have in substance supported the contention advanced on behalf of State of Bihar.
9. We have perused the materials on record and considered the submissions of the learned Counsel for the parties. It is evident on a perusal of the merit list (Annexure-3), that same has been published University-wise and subject-wise. The same has been prepared on the basis of merit-cum-choice. The petitioner was an applicant for the Department of Philosophy, bearing Roll No. 100. He was recommended for Acharya Vinoba Bhave University, Hazaribagh, which admittedly falls in the present State of Jharkhand. The figures mentioned in the merit list indicate the roll numbers of the candidates. The merit list with respect to the Acharya Vinoba Bhave University, Hazaribagh, is reproduced hereinbelow for the facility of quick reference:
Adv. No. 2/27 RECOMMENDED for post LECTURER
V.B. HAZARIBAGH - HINDI 282, 424, 157, 55, URDU - 288, 18, ARABIC 09, PHILO- 100, 103, 06, COMM- 168, 200, 138, 35, MUSIC, 15, 05 ECO, 42, 56, 78, 71, GEOG- 145, 149, 154, 09, PSYCHO 285, 122, 46. HOME SC. 07, 195, 10, 12, 32, PHY- 156, 118, 26, CHEM 271, 90, 74, 43....
It is thus evident that the recommendations were made keeping in view the requirements of each university, the merit of every candidate, and the choice expressed by the candidate. The recommendations for the Universities in the present State of Bihar have entirely been acted upon and appointments have been made. We, therefore, find it difficult to accede to the submission made on behalf of the writ petitioner that they can be accommodated at other places. That would amount to forcing the government to fill up vacancies in a situation where none exist. This may in one sense be tantamount to creation of new posts which is normally impermissible for Courts to do, in a situation where no arbitrariness, unfairness, or hostile discrimination is attributable to the respondent authorities. The petitioner can have, if at all, any claim against the present State of Jharkhand which has not been kind to him. It issued the aforesaid order dated 10.9.2001 (Annexure-4), prohibiting a ban on appointment arising out of recommendations made by the quondam Commission for the present State of Jharkhand. Validity of this order has already been adjudicated by the Jharkhand High Court, and the Division Bench has held that the said order dated 10.9.2001 is supported by Section 85 of the State Reorganisation Act. Now the writ petitioner has not purposely challenged the same in the present writ petition.
10. Learned Advocate General has rightly relied on the judgment of the Supreme Court in the State of Uttaranchal v. Sidharth Srivastava (supra) where the erstwhile State of Uttar Pradesh was similarly bifurcated between the present State of Uttar Pradesh and that the State of Uttaranchal with the only difference that the bifurcation there took place on 9.11.2000. A comparable situation had arisen before the Allahabad High Court, whereby the present State of Uttar Pradesh was directed to appoint persons who had been recommended for the State of Uttaranchal on the strength of advertisement which had taken place prior to the date of bifurcation. The matter travelled to the Supreme Court which disagreed with the order of the Allahabad High Court and observed that such a direction cannot be given to the present State of Uttar Pradesh to accommodate candidates recommended for appointment in the present State of Uttaranchal. He further places reliance on a judgment of the Supreme Court in the case of State of U.P. v. Raj Kumar Sharma (Supra), which was a reverse case and was nearer the present case. In that case, in a comparable situation, the writ petitioners had sought direction from the Allahabad High Court to appoint them in the present State of Uttar Pradesh. The writ petition was allowed, but the Supreme Court disagreed with the same and said that such recommendations made by the erstwhile Uttar Pradesh Service Commission may not be imposed on the new State.
11. Learned Advocate General is further right in his submission that identical issues were raised by other persons of the same category by preferring the Writ Petition (Civil) No. 1856 of 2003, whereby the said order dated 10.9.2001 was upheld. It appears to us on a perusal of the judgment that the writ petition was not confined to the validity of the order dated 10.9.2001, and raised similar issues being raised in the present proceedings. The matter is really covered by the judgment of the Jharkhand High Court.
12. We must deal with the contention advanced on behalf of respondent No. 2 (the writ petitioner) that he has been subjected to hostile discrimination. He relies on paragraph No. 25 of the writ petition which is reproduced hereinbelow for the facility of quick reference.:
25. That the petitioner states that some of the candidates whose names were recommended for the Universities in the State of Jharkhand had approached before Jharkhand High Court vide W.P. (C) No. 1856/2003 but the same was dismissed by the Division Bench vide judgment dated 04.09.2003 upholding the validity of the notification dated 10.09.2001 of the State of Jharkhand.
The contention is no longer available to the petitioner because of bifurcation of the State, and in a situation where the recommendations of the then Commission was University-wise and subject-wise. The petitioner is also hit by the provisions of the State Reorganisation Act 2000, as well as the aforesaid order dated 10.9.2001 (Annexure-4), which has already been upheld by the Jharkhand High Court. This contention may perhaps have been available to the petitioner had the State not been bifurcated.
13. Learned Counsel for respondent No. 2 has also submitted that a sympathetic view may be taken ignoring the technical aspects of the matter, in a situation where a large number of vacancies exist in different Universities of the State of Bihar. We do not find it possible to accede to the submission for the reason that the petitioner cannot be accommodated against the vacancies which have occurred after bifurcation of the State. It is a federal structure under the Constitution of India, and every State has its own powers, duties, and functions under the Constitution. It is difficult to impose 122 candidates on the State of Bihar against its will. Learned Advocate General has rightly relied on the judgment in Ram Dhani Singh v. State of Bihar (Supra), which was delivered by one of us (S.K. Katriar, J). We are mindful of the position that it is a judgment of a learned Single Judge. However, the observations made therein were entirely based on the pronouncements of the Supreme Court, as well as one judgment of the Court of Appeal in England. Paragraph 19 of the judgment is reproduced hereinbelow for the facility of quick reference:
Reference may be made to the judgment of the Court of Appeal in England in the case of Latham v. Johnson & Nephew reported in 1911-13 All. E.R. 117. The defendants were the owners of a piece of unfenced waste ground, on which to their knowledge and with their permission children had been in the habit of playing. Early one morning a heap of stones was deposited on the land by the defendants' servants, and soon after, while on the land alone, the plaintiff, a child under three years of age, was injured by one of the stones falling on her hand, In an action brought on behalf of the plaintiff for damages for his injury, it was held that the defendants were not liable. It was further held that '...we must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will O' wisp to take as a guide in the search for legal principle....
It is, therefore, impermissible for a Court of law to get swayed by sympathetic considerations in the face of clear provisions of law and established principles of law.
14. In the result, we respectfully disagree with the order of the learned Single Judge. The appeals are allowed. C.W.J.C. No. 3736 of 2006 is dismissed. There shall be no order as to costs.