Patna High Court
Bipin Kumar vs The State Of Bihar on 6 January, 2022
Author: S. Kumar
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19580 of 2021
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Bipin Kumar, S/o Late Baleshwar Singh, R/o Village- Makanpur, P.O.-
Habbipur, P.S.- Hilsa, District- Nalanda- 801302.
... ... Petitioner/s
Versus
1. The State of Bihar, through the Chief Secretary, Main Secretariat, Patna.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Principal Accountant General (A and E) Bihar, Mahalehakar Bhawan,
Birchand Patel, Patna.
4. The Secretary, Science and Technology Department, Government of Bihar,
Technology Bhawan, Bailey Road, Patna.
5. The Special Secretary Science and Technology Department, Government of
Bihar, Technology Bhawan, Bailey Road, Patna.
6. The Director, Science and Technology Department, Government of Bihar,
Technology Bhawan, Bailey Road, Patna.
7. Member Secretary, AICTE (All India Council Technical Education) Nelson
Mandela Marg Vasant Kunj, New Delhi- 110067.
8. Secretary, UGC (University Grants Commission) Bahadur Shah Zafar Marg,
New Delhi- 110002.
9. Dr. Nirmal Kumar, Retired Principal Bhagalpu B.C. Bhagalpur College of
Engineering, Bhagalpur, Flat No. 302 Mohan Residency, Before Sacned
Heart Church, New Patuputred, Patna- 800013.
10. Dr. Kumar Surendra Principal of Bakhtiyarpur College of Engineering
Bakhtiyarpur.
11. Dr. Anant Kumar, Joint Secretary Department of Science and Technology,
Government of Bihar.
12. Secretary, BPSC (Bihar Public Service Commission), 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna, Bihar.
13. Registrar Bheemrao Ambedkar Bihar University Muzaffarpur.
14. Controller of Examination Bheemrao Ambedkar Bihar University
Muzaffarpur.
15. Principal Motihari College of Engineering Motihari.
16. District Magistrate Motihari Cum Chairman Governing Body Motihari
Patna High Court CWJC No.19580 of 2021 dt.06-01-2022
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College of Engineering, Motihari.
17. Dean, Science, Bheemrao Ambedkar Bihar University Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Jitendra Kumar Rai, Advocate
For the Respondent/s : Mr.Ajay (G.A.5)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
(The proceedings of the Court are being conducted through Video Conferencing and the
Advocates joined the proceedings through Video Conferencing from their residence.)
Date : 06-01-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
" i) To direct Respondent Authorities to quash the
promotion of the Respondent No. 9 Dr. Nirmal Kumar, the
then principal of Bhagalpur College of Engineering,
Bhagalpur from Lecturer to Senior Scale and Senior
lecturer to Lecturer Selection Grade as well as Assistant
Professor to Associate Professor and Professor as well as
Principal.
(ii) To direct the Respondent Authority to quash the illegal
promotion of Respondent No. 10 (Dr. Kumar Surendra
Principal of Bakhtiyarpur College of Engineering
Bakhtiyarpur) as Assistant/Associate Professor to Professor
and Professor as well as Principal.
(iii) To direct the Respondent Authority to quash the
services of Respondent No. 11 (Dr. Anant Kumar Joint
Secretary Department of Science and Technology,
Government of Bihar) as Lecturer as well as Assistant
Professor to Associate Professor and Professor.
(iv) To direct the Respondent No.9 and Respondent No.10
have been appointed for the post of Principal vide Letter
No. 1293 dated 18.05.2016 issued by the Department of
Science and Technology, Government of Bihar in the Pay-
Scale- PB.4 (Rs. 37000- 67400) + Academic Grade Pay Rs.
10000 + Special Pay Rs.3000. Which is miscarriage of law
Patna High Court CWJC No.19580 of 2021 dt.06-01-2022
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and Terms & Condition laid down by the A1CTE .
(v) To direct the Respondent No.10 (Dr. Anant Kumar) and
Respondent No. 11 (Dr. Kumar Surendra) was not followed
as he was promoted from Lecture to Lecture Senior Scale
on 02.01.1993 vide Departmental Letter No. 792 dated
30.03.2021, Memo No,. 2327 dated 23.09.2011, Letter No. 2814 dated 04.12.2014, letter No. 1777 dated 21.09.2001 and Letter No. 1624 dated 31.08.2001 without following the Rule regarding 8 Week Training Certificate. Further, it is to be submitted that State Government is not entitled to override the terms & conditions lad down by the AICTE for the appointment and promotion of Assistant Professor/Associate Professor/Principal of Engineering Colleges."
The Hon'ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & Ors, (2016) 2 SCC 653, paragraphs 34 to 38 observed as under:-
"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.
35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows:
(SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence Patna High Court CWJC No.19580 of 2021 dt.06-01-2022 4/7 when a matter of grave public importance is for consideration before the court."
36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.
37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that:
(SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."
38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, Patna High Court CWJC No.19580 of 2021 dt.06-01-2022 5/7 paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:
'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'
25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."
After the matter was heard for some time, learned counsel for the petitioner, under instructions, states that petitioner shall be content if a direction is issued to the authority concerned i.e. (Respondent No. 13, Registrar, Bheemrao Ambedkar Bihar University, Muzaffarpur) to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for Patna High Court CWJC No.19580 of 2021 dt.06-01-2022 6/7 redressal of the grievance(s).
Learned counsel for the respondents states that if such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order.
Statement accepted and taken on record.
As such, petition stands disposed of in the following terms:-
(a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s);
(b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing along with a copy of this order;
(c) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
(d) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;
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(e) We are hopeful that as and when petitioner takes recourse to such remedies, as are otherwise available in law, before the appropriate forum, the same shall be dealt with, in accordance with law and with reasonable dispatch;
(f) Liberty reserved to the petitioner to approach the Court, if the need so arises subsequently on the same and subsequent cause of action;
(g) We have not expressed any opinion on merits. All issues are left open;
(h) The proceedings, during the time of current Pandemic- Covid-19 shall be conducted through digital mode, unless the parties otherwise mutually agree to meet in person i.e. physical mode;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, stands disposed of.
(Sanjay Karol, CJ) ( S. Kumar, J) Rajiv/veena-
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