Balram Prasad Sinha Vs. State of Bihar and ors. - Court Judgment

Excerpt:
educational service - suspension of lecturer of college--statute framed by chancellor for regularisation of services of temporary lecturers known as 'statute regarding regularisation of services of purely temporary lecturers'--appointment of petitioner on 5.6.78 and had completed two years of service as lecturer by december 1980--he having appointed after advertisement and selection, he had accrued right as back as on 18th november, 1980 when statute of 'regularisation' was framed for consideration of his case of regularisation against a post (first post) of lecturer (zoology) against which he was working--he was never terminated--but was merely suspended in 1981 illegally by secretary of college--no appointment should have been made in 1998 from a belated advertisement issued as back as in 1984--college authorities cannot fill up post by direct recruitment in pursuance of an advertisement--respondents directed to pay his salary due since june, 1981 to petitioner and also to consider his case for regularisation of his service in terms with statute. - s.j. mukhopadhaya, j.1. in both the cases as parties are common, relate to same college, namely, purwottar railway college, sonepur and both the petitioners claim to have been validly appointed against same very post fist post of lecturer (zoology), they were heard together and are being disposed of by this common judgment.2. according to petitioner balram prasad sinha of c.w.j.c. no. 7157 of 1998, he was appointed as founder lecturer (zoology) on 5th june, 1978, when the college was established. subsequently, in pursuance of advertisement dated 4th july, 1978, he was interviewed by selection committee on 17th june, 1978 and after acceptance of such recommendation by the governing body of the college, his service was regularised and approved on 28th july, 1978 with effect from 5th june, 1978 as lecturer (zoology), against the first post which was sanctioned in the year 1978.3. the college was granted permanent affiliation up to the intermediate standard in 1981-82 and petitioner balram pd. sinha being the seniormost lecturer was made professor-in-charge (acting principal) of the college. the secretary of the college on 8th november, 1982 suspended petitioner, balram prasad sinha on the ground that he was not the seniormost person and on the allegation of misappropriation of certain amount. one shri paras nath was made professor-in-charge. the governing body was replaced by an ad hoc committee on 12th march, 1983 which terminated the services of a number of persons who were illegally appointed. however, no termination order was issued in respect of petitioner balram prasad sinha.4. the petitioner balram prasad sinha moved the university, when shri d.p. maheshwari, the then commissioner of saran division, chapra was asked by the then bihar university to make enquiry in respect of said petitioner balram prasad sinha. the commissioner, saran division, chapra submitted his report on 13th august, 1984 and held the order of suspension illegal having issued by the secretary of the college without approval of the governing body. it further held the appointment of petitioner balram prasad sinha as legal and valid.5. the bihar university taking into consideration the report, vide its letter dated 20th july, 1985 set aside the order of suspension of petitioner balram prasad sinha and directed the ad hoc committee of the college to accept his joining treating the appointment of petitioner balram prasad sinha as legal and valid. the advertisement, in the meantime, issued in the newspaper search light on 18th june, 1984 to fill up the post, was ordered to be stopped, vide university's aforesaid order issued on 20th july, 1985.6. in spite of order of university, when no action was taken by the college, on the decision of the syndicate of the bihar university, reminders were given and the college authorities were given a show-cause notice giving reference of articles 5(f) & (g), 7(f) & (g); and 8(h) & (i) that the direction of the university is mandatory and thereby why the ad hoc committee be not dissolved for non-compliance of university's order. notice was given on 7th november, 1988.7. it is only thereafter, shri balram prasad sinha was allowed to rejoin the first post of lecturer (zoology) in the college by the college authority's, memo no. 2041 dated 20th november, 1988.8. it appears that formal order was issued by the college on acceptance of joining petitioner, balram prasad sinha, but he was not allowed to work nor paid salary. in the aforesaid circumstances, when petitioner balram prasad sinha moved this court in c.w. j.c. no. 360 of 1995, he was asked to move the chancellor.9. the registrar of the university again gave reminder to the college to accept the joining of petitioner, balram prasad sinha. the chancellor, in his turn, vide impugned order dated 4th november, 1996 while held the appointment of petitioner balram prasad sinha made against the first post of lecturer (zoology) as valid and legal, directed to accept the joining of petitioner, balram prasad sinha with advice to the university to take recourse for dissolution of the governing body of the college, if so required, for violation and non-implementation of the university's order. thereafter, the joint petitioner, balram prasad sinha has been accepted against the first post of lecturer (zoology), but he has not been paid salary.10. in the aforesaid background, the petitioner balram prasad sinha has preferred c.w.j.c. no. 7157/98 for direction on the respondents to pay him salary, allowances and other consequential benefits, due since june 1981 and also for regularisation of the service.11. on notice, the contesting respondent braj bhushan prasad singh has appeared, apart from the university concerned now j.p. university, chapra.12. a separate writ petition has been preferred by the said contesting respondent braj bhushan prasad singh, being c.w.j.c. no. 2531 of 1997. in the said case, while he prays for non-interference with his peaceful discharge of duty as head of the department (zoology) of the college, has also prayed for setting aside the impugned order dated 4th november, 1996 passed by the chancellor in favour of petitioner balram prasad sinha was has been impleaded as 9th respondent in the 2nd writ petition (c.w.j.c. 2531/97).13. at this stage, it is pertinent to mention that the college, in question, was carved out of the jurisdiction of the then bihar university and since end of 1992 has been placed under the jurisdiction of newly-created j.p. university, chapra.14. the petitioner braj bhushan prasad singh (of c.w.j.c. no. 2531/97), who is contesting respondent no. 12 in the analogous writ petition, claims to have been appointed and working against the first post of lecturer(zoology).15. according to petitioner (braj bhushan prasad singh), he was appointed as lecturer (zoology) against the first post on 26th july, 1983. subsequently, the ad hoc committee issued advertisement on 4th june, 1986/ 20th june, 1986 for regular appointment, whereinafter on the recommendation of the expert committee, his service has been regularised by the ad hoc committee, vide decision dated 21st july, 1987 with effect from 26th july, 1983. the bihar college service commission also granted concurrence for a year vide their letter dated 7th november, 1987, followed by letter dated 6th january, 1983, whereby concurrence was granted till regular appointment.16. it appears that after the appointment of petitioner braj bhushan prasad singh made on 26th july, 1983, he has not been paid salary, for the said reason, he has prayed for payment of salary since the date of his appointment.17. it further appears that the bihar college service commission issued advertisement on 10th august, 1984 to fill up one post of lecturer (zoology) in pursuance of which, petitioner braj bhushan prasad singh is stated to have applied and interviewed on 21st/22nd august, 1995. however, no recommendation was made nor the order of appointment was issued at that stage.18. in the meantime, the impugned order dated 4th november, 1996 having issued, petitioner braj bhushan prasad singh preferred c.w.j.c. no. 2531 of 1997. in the said case, by interim order dated 19th may, 1997, a bench of this court ordered not to disturb petitioner braj bhushan pd. singh but made clear that the interim direction will not come in the way of the college service commission from making selection for the post and recommending the selected candidate for appointment against the post. it was further made clear that as and when a regular appointment is made in the basis of recommendation made by the college service commission, the interim direction was to cease its operation. subsequently, a bench of this court vide subsequent interim order dated 8th may, 1998 taking into consideration that recommendation made for regular appointment against the post, observed that the regularly appointed lecturer to function and the interim order dated 19th may, 1997 stood ceased to operate.19. in pursuance of recommendation made by the college service commission on 11th august, 1998, the first post of lecturer (zoology) has been filled up in pursuance of advertisement no. 112/84, by regular appointment of petitioner braj bhushan prasad singh, vide governing body's decision dated 30th august, 1998, followed by letter to that effect issued by the secretary of the college on 7th september, 1998 in favour of petitioner braj bhushan pd. singh.20. in both the cases, both the petitioners claim to have been appointed against the first post of lecturer (zoology) since the date of their appointment. the petitioner braj bhushan prasad singh further claims to have been appointed on regular basis on the recommendation of the bihar college service commission against the first post of lecturer (zoology).21. while petitioner balram prasad sinha (of c.w.j.c. no. 7157 of 1998) claims his right of consideration for regularisation of service against the first post of lecturer (zoology), such prayer has been objected on behalf of the petitioner braj bhushan prasad singh (of c.w.j.c. no. 2531 of 1997), showing his right accrued on regular appointment against the said post and no formal order of regularisation having issued in favour of balram prasad sinha by the said date.22. from the pleading made by the parties and enclosures attached thereto, it appears that the petitioner balram pd. sinha was appointed after advertisement and selection as lecturer (zoology) against the first post sanctioned in the year 1978, as back was on 5th june, 1978. while balram pd. sinha was suspended in 1981 and was forced not to attend the college, during that period, the other petitioner braj bhusahn prasad singh was given appointment. it was at that stage, advertisement no. 112/84 was issued to fill up the post of lecturer (zoology) by the bihar college service commission.23. the chancellor has framed statute for regularisation of services of temporary lecturers, commonly known as 'statute regarding regularisation of services of purely temporary lecturers. it was approved by the chancellor and circulated, wide letter no. 5240 g.s. (1) dated 18th november, 1980. the other similar provision made and circulated vide chancellor's letter no. bsu-25/85-283-g.s.(l) dated 29th january, 1986.24. admittedly, the petitioner balram prasad sinha was appointed on 5th june, 1978 and had completed two years of service (24 months) as lecturer by 31st december, 1980.25. in the aforesaid circumstances, he having appointed after advertisement and selection, he had accrued right as back as on 18th november, 1980, when the statute of 'regularisation' was framed, for consideration of his case of regularisation against a post (first post) of lecturer (zoology) against which he was working.26. the service of petitioner, balram prasad sinha was never terminated, he was merely suspended in 1981, that too illegally by the secretary of the college. in the aforesaid circumstances, there was no occasion to fill up the post (first post) of lecturer (zoology) as was stated to have been made by appointment of petitioner braj bhushan prasad singh. in fact, no regular appointment was permissible against the post which fell vacant because of the suspension of the incumbent working against the post. in the circumstances, the initial appointment, if so made against the first post of petitioner braj bhusahn prasad singh would be treated to be merely an ad hoc arrangement.the university declared the order of suspension of petitioner balram prasad sinha as illegal and quashed the same, vide its decision dated 20th july, 1985, as reiterated vide show-cause notice issued on 7th november, 1985. the appointment in pursuance advertisement issued in 1984 was stopped by the university vide said order dated 20th july, 1985.27. in the aforesaid circumstances, without revocation of the said order dated 20th july, 1985, there was no occasion for the bihar college service commission to recommend the name to fill up the same very first post of lecturer (zoology), nor the college authorities should have issued the order of appointment in favour of petitioner braj bhusahn prasad singh in pursuance of 1984 advertisement. in fact, no appointment should have been made in 1998 from a belated advertisement issued, as back as, in 1984.this apart, as stated above, the petitioner balram prasad sinha being working since 5th june 1978 against the first post of lecturer (zoology) and having accrued a right to be considered for regularisation of his service in terms with statute, without deciding such claim, there was no occasion for the college authorities to fill up the post by direct recruitment in pursuance of an advertisement.28. for the reasons aforesaid, while i allow c.w.j.c. no. 7157of 1998 preferred by petitioner balram prasad sinha with direction to respondents to pay his salary due since june, 1981, also direct the respondents to consider his case for regularisation of his service in terms with statute, both to be made within four months and nine months respectively.29. the petitioner braj bhushan prasad singh of c.w.j.c. no. 2531 of 1997 having accrued no right in pursuance of interim order passed in the case, as his appointment made against the first post of lecturer (zoology), vide governing body's resolution dated 30th august, 1998, followed by letter dated 7th september, 1998, as approved vide letter dated 13th january, 1999, was not permissible, they declared illegal. the impugned order passed by the chancellor on 4th november, 1996 is upheld.30. in the result, c.w.j.c. no. 7157 of 1998 preferred by balram prasad sinha is allowed, while c.w.j.c. no. 2531 of 1997 preferred by braj bhushan prasad singh is dismissed.31. however, in the facts and circumstances, there shall be no order, as to costs.

Judgment:

S.J. Mukhopadhaya, J.

1. In both the cases as parties are common, relate to same College, namely, Purwottar Railway College, Sonepur and both the petitioners claim to have been validly appointed against same very post fist post of Lecturer (Zoology), they were heard together and are being disposed of by this common judgment.

2. According to petitioner Balram Prasad Sinha of C.W.J.C. No. 7157 of 1998, he was appointed as Founder Lecturer (Zoology) on 5th June, 1978, when the College was established. Subsequently, in pursuance of advertisement dated 4th July, 1978, he was interviewed by Selection Committee on 17th June, 1978 and after acceptance of such recommendation by the Governing Body of the College, his service was regularised and approved on 28th July, 1978 with effect from 5th June, 1978 as Lecturer (Zoology), against the first post which was sanctioned in the year 1978.

3. The College was granted permanent affiliation up to the Intermediate standard in 1981-82 and petitioner Balram Pd. Sinha being the seniormost Lecturer was made Professor-in-Charge (Acting Principal) of the College. The Secretary of the College on 8th November, 1982 suspended petitioner, Balram Prasad Sinha on the ground that he was not the seniormost person and on the allegation of misappropriation of certain amount. One Shri Paras Nath was made Professor-in-Charge. The Governing Body was replaced by an ad hoc Committee on 12th March, 1983 which terminated the services of a number of persons who were illegally appointed. However, no termination order was issued in respect of petitioner Balram Prasad Sinha.

4. The petitioner Balram Prasad Sinha moved the University, when Shri D.P. Maheshwari, the then Commissioner of Saran Division, Chapra was asked by the then Bihar University to make enquiry in respect of said petitioner Balram Prasad Sinha. The Commissioner, Saran Division, Chapra submitted his report on 13th August, 1984 and held the order of suspension illegal having issued by the Secretary of the College without approval of the Governing Body. It further held the appointment of petitioner Balram Prasad Sinha as legal and valid.

5. The Bihar University taking into consideration the report, vide its letter dated 20th July, 1985 set aside the order of suspension of petitioner Balram Prasad Sinha and directed the Ad hoc Committee of the College to accept his joining treating the appointment of petitioner Balram Prasad Sinha as legal and valid. The advertisement, in the meantime, issued in the newspaper Search light on 18th June, 1984 to fill up the post, was ordered to be stopped, vide University's aforesaid order issued on 20th July, 1985.

6. In spite of order of University, when no action was taken by the College, on the decision of the Syndicate of the Bihar University, reminders were given and the College authorities were given a show-cause notice giving reference of Articles 5(f) & (g), 7(f) & (g); and 8(h) & (i) that the direction of the University is mandatory and thereby why the Ad hoc Committee be not dissolved for non-compliance of University's order. Notice was given on 7th November, 1988.

7. It is only thereafter, Shri Balram Prasad Sinha was allowed to rejoin the first post of Lecturer (Zoology) in the College by the College Authority's, Memo No. 2041 dated 20th November, 1988.

8. It appears that formal order was issued by the College on acceptance of joining petitioner, Balram Prasad Sinha, but he was not allowed to work nor paid salary. In the aforesaid circumstances, when petitioner Balram Prasad Sinha moved this Court in C.W. J.C. No. 360 of 1995, he was asked to move the Chancellor.

9. The Registrar of the University again gave reminder to the College to accept the joining of petitioner, Balram Prasad Sinha. The Chancellor, in his turn, vide impugned order dated 4th November, 1996 while held the appointment of petitioner Balram Prasad Sinha made against the first post of Lecturer (Zoology) as valid and legal, directed to accept the joining of petitioner, Balram Prasad Sinha with advice to the University to take recourse for dissolution of the Governing Body of the College, if so required, for violation and non-implementation of the University's order. Thereafter, the joint petitioner, Balram Prasad Sinha has been accepted against the first post of Lecturer (Zoology), but he has not been paid salary.

10. In the aforesaid background, the petitioner Balram Prasad Sinha has preferred C.W.J.C. No. 7157/98 for direction on the Respondents to pay him salary, allowances and other consequential benefits, due since June 1981 and also for regularisation of the service.

11. On notice, the contesting Respondent Braj Bhushan Prasad Singh has appeared, apart from the University concerned now J.P. University, Chapra.

12. A separate writ petition has been preferred by the said contesting Respondent Braj Bhushan Prasad Singh, being C.W.J.C. No. 2531 of 1997. In the said case, while he prays for non-interference with his peaceful discharge of duty as Head of the Department (Zoology) of the College, has also prayed for setting aside the impugned order dated 4th November, 1996 passed by the Chancellor in favour of petitioner Balram Prasad Sinha was has been impleaded as 9th Respondent in the 2nd writ petition (C.W.J.C. 2531/97).

13. At this stage, it is pertinent to mention that the College, in question, was carved out of the jurisdiction of the then Bihar University and since end of 1992 has been placed under the jurisdiction of newly-created J.P. University, Chapra.

14. The petitioner Braj Bhushan Prasad Singh (of C.W.J.C. No. 2531/97), who is contesting Respondent No. 12 in the analogous writ petition, claims to have been appointed and working against the first post of Lecturer(Zoology).

15. According to petitioner (Braj Bhushan Prasad Singh), he was appointed as Lecturer (Zoology) against the first post on 26th July, 1983. Subsequently, the Ad hoc Committee issued advertisement on 4th June, 1986/ 20th June, 1986 for regular appointment, whereinafter on the recommendation of the Expert Committee, his service has been regularised by the Ad hoc Committee, vide decision dated 21st July, 1987 with effect from 26th July, 1983. The Bihar College Service Commission also granted concurrence for a year vide their letter dated 7th November, 1987, followed by letter dated 6th January, 1983, whereby concurrence was granted till regular appointment.

16. It appears that after the appointment of petitioner Braj Bhushan Prasad Singh made on 26th July, 1983, he has not been paid salary, for the said reason, he has prayed for payment of salary since the date of his appointment.

17. It further appears that the Bihar College Service Commission issued advertisement on 10th August, 1984 to fill up one post of Lecturer (Zoology) in pursuance of which, petitioner Braj Bhushan Prasad Singh is stated to have applied and interviewed on 21st/22nd August, 1995. However, no recommendation was made nor the order of appointment was issued at that stage.

18. In the meantime, the impugned order dated 4th November, 1996 having issued, petitioner Braj Bhushan Prasad Singh preferred C.W.J.C. No. 2531 of 1997. In the said case, by interim order dated 19th May, 1997, a Bench of this Court ordered not to disturb petitioner Braj Bhushan Pd. Singh but made clear that the interim direction will not come in the way of the College Service Commission from making selection for the post and recommending the selected candidate for appointment against the post. It was further made clear that as and when a regular appointment is made in the basis of recommendation made by the College Service Commission, the interim direction was to cease its operation. Subsequently, a Bench of this Court vide subsequent interim order dated 8th May, 1998 taking into consideration that recommendation made for regular appointment against the post, observed that the regularly appointed Lecturer to function and the interim order dated 19th May, 1997 stood ceased to operate.

19. In pursuance of recommendation made by the College Service Commission on 11th August, 1998, the first post of Lecturer (Zoology) has been filled up in pursuance of advertisement No. 112/84, by regular appointment of petitioner Braj Bhushan Prasad Singh, vide Governing Body's decision dated 30th August, 1998, followed by letter to that effect issued by the Secretary of the College on 7th September, 1998 in favour of petitioner Braj Bhushan Pd. Singh.

20. In both the cases, both the petitioners claim to have been appointed against the first post of Lecturer (Zoology) since the date of their appointment. The petitioner Braj Bhushan Prasad Singh further claims to have been appointed on regular basis on the recommendation of the Bihar College Service Commission against the first post of Lecturer (Zoology).

21. While petitioner Balram Prasad Sinha (of C.W.J.C. No. 7157 of 1998) claims his right of consideration for regularisation of service against the first post of Lecturer (Zoology), such prayer has been objected on behalf of the petitioner Braj Bhushan Prasad Singh (of C.W.J.C. No. 2531 of 1997), showing his right accrued on regular appointment against the said post and no formal order of regularisation having issued in favour of Balram Prasad Sinha by the said date.

22. From the pleading made by the parties and enclosures attached thereto, it appears that the petitioner Balram Pd. Sinha was appointed after advertisement and selection as Lecturer (Zoology) against the first post sanctioned in the year 1978, as back was on 5th June, 1978. While Balram Pd. Sinha was suspended in 1981 and was forced not to attend the College, during that period, the other petitioner Braj Bhusahn Prasad Singh was given appointment. It was at that stage, Advertisement No. 112/84 was issued to fill up the post of Lecturer (Zoology) by the Bihar College Service Commission.

23. The Chancellor has framed Statute for regularisation of services of temporary Lecturers, commonly known as 'Statute regarding Regularisation of Services of Purely Temporary Lecturers. It was approved by the Chancellor and circulated, wide Letter No. 5240 G.S. (1) dated 18th November, 1980. The other similar provision made and circulated vide Chancellor's letter No. BSU-25/85-283-G.S.(l) dated 29th January, 1986.

24. Admittedly, the petitioner Balram Prasad Sinha was appointed on 5th June, 1978 and had completed two years of service (24 months) as Lecturer by 31st December, 1980.

25. In the aforesaid circumstances, he having appointed after advertisement and selection, he had accrued right as back as on 18th November, 1980, when the statute of 'Regularisation' was framed, for consideration of his case of regularisation against a post (first post) of Lecturer (Zoology) against which he was working.

26. The service of petitioner, Balram Prasad Sinha was never terminated, he was merely suspended in 1981, that too illegally by the Secretary of the College. In the aforesaid circumstances, there was no occasion to fill up the post (first post) of Lecturer (Zoology) as was stated to have been made by appointment of petitioner Braj Bhushan Prasad Singh. In fact, no regular appointment was permissible against the post which fell vacant because of the suspension of the incumbent working against the post. In the circumstances, the initial appointment, if so made against the first post of petitioner Braj Bhusahn Prasad Singh would be treated to be merely an Ad hoc arrangement.

The University declared the order of suspension of petitioner Balram Prasad Sinha as illegal and quashed the same, vide its decision dated 20th July, 1985, as reiterated vide show-cause notice issued on 7th November, 1985. The appointment in pursuance advertisement issued in 1984 was stopped by the University vide said order dated 20th July, 1985.

27. In the aforesaid circumstances, without revocation of the said order dated 20th July, 1985, there was no occasion for the Bihar College Service Commission to recommend the name to fill up the same very first post of Lecturer (Zoology), nor the College authorities should have issued the order of appointment in favour of petitioner Braj Bhusahn Prasad Singh in pursuance of 1984 advertisement. In fact, no appointment should have been made in 1998 from a belated advertisement issued, as back as, in 1984.

This apart, as stated above, the petitioner Balram Prasad Sinha being working since 5th June 1978 against the first post of Lecturer (Zoology) and having accrued a right to be considered for regularisation of his service in terms with Statute, without deciding such claim, there was no occasion for the College authorities to fill up the post by direct recruitment in pursuance of an advertisement.

28. For the reasons aforesaid, while I allow C.W.J.C. No. 7157of 1998 preferred by Petitioner Balram Prasad Sinha with direction to Respondents to pay his salary due since June, 1981, also direct the Respondents to consider his case for regularisation of his service in terms with Statute, both to be made within four months and nine months respectively.

29. The petitioner Braj Bhushan Prasad Singh of C.W.J.C. No. 2531 of 1997 having accrued no right in pursuance of interim order passed in the case, as his appointment made against the first post of Lecturer (Zoology), vide Governing Body's resolution dated 30th August, 1998, followed by letter dated 7th September, 1998, as approved vide letter dated 13th January, 1999, was not permissible, they declared illegal. The impugned order passed by the Chancellor on 4th November, 1996 is upheld.

30. In the result, C.W.J.C. No. 7157 of 1998 preferred by Balram Prasad Sinha is allowed, while C.W.J.C. No. 2531 of 1997 preferred by Braj Bhushan Prasad Singh is dismissed.

31. However, in the facts and circumstances, there shall be no order, as to costs.