Patna High Court - Orders
Awadhesh Kumar vs The Magadh University Bodh Gaya & Ors on 12 August, 2014
Author: Jayanandan Singh
Bench: Jayanandan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2175 of 2014
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Awadhesh Kumar, Son of Late Lachha Singh, Resident of Village- Dioura,
P.S. - Pakri Barawa, District- Nawadah (Bihar) At present residing at
Professor Colony, Devi Asthan, Hisua, District- Nawada (Bihar)
.... .... Petitioner
Versus
1. The Magadh University, Bodh Gaya, District- Gaya through the Registrar
2. The Vice Chancellor, Magadh University, Bodh Gaya, District- Gaya
(Bihar)
3. The Registrar, Magadh University, Bodh Gaya, District- Gaya (Bihar)
4. Director, Institute of Physiotherapy, Magadh University, Bodh Gaya,
District- Gaya (Bihar)
5. Dean, Faculty of Humanities, Magadh University, Bodh Gaya, District-
Gaya (Bihar)
6. Dean, Faculty of Commerce, Magadh University, Bodh Gaya, District-
Gaya (Bihar)
7. Dr. Ganesh Sharma,son of not known, Professor, Geography Department,
T.S. College, Hisua (Nawadah), District- Nawadah (Bihar)
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Y.V. Giri, Sr. Advocate
Mr. Raju Giri, Advocate
For the University : Mr. Girijesh Kumar, Advocate
For Respondent No.7 : Mr. Shashi Anugrah Narayan, Sr. Advocate
Mr. Sanjeev Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH
ORAL ORDER
4 12-08-2014Heard learned senior counsel for the petitioner, learned senior counsel for respondent no.7 and also learned counsel for the University.
By Annexure-2 dated 23.08.2013, petitioner was made Incharge Principal of T.S. College, Hisua, on retirement of the regular Principal. Now he is aggrieved by the notification dated 07.12.2013, as contained in Annexure-6, by which respondent no.7 has been made Incharge Principal.
Patna High Court CWJC No.2175 of 2014 (4) dt.12-08-20142/4
Submission of the learned senior counsel for the petitioner is that Agrawal Commission had approved services of petitioner in the Department of Political Science with effect from 12.04.1977, vide Annexure-7 with the rejoinder, whereas it approved services of respondent no.7 in the Department of Geography with effect from 29.06.1978. Hence, petitioner had overall senior over the respondent no.7 on the basis of his length of services and, therefore, he should have been continued as Incharge Principal, awaiting appointment of regular Principal in the College. For this, learned counsel has placed reliance upon an order of this Court dated 28.01.2003 passed in CWJC No.12750 of 2002, a copy whereof has been annexed as Annexure-8 with the rejoinder.
Learned senior counsel for respondent no.7 submits that even if report of the Agrawal Commission, as accepted by the Apex Court, is accepted, admittedly petitioner is holding the post of Associate Professor in his Department whereas respondent no.7 is holding a substantive post of Professor in his Department on the basis of merit promotion. Hence, the respondent has cadre seniority over the petitioner and as such, he has rightly been appointed as Incharge Principal, awaiting the appointment of regular Principal in the College.
Learned counsel for the respondent-University has Patna High Court CWJC No.2175 of 2014 (4) dt.12-08-2014 3/4 placed reliance upon a judgment of the Apex Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra [ (2013) 4 Supreme Court Cases 465] and submits that holding a post of Incharge Principal is not a substantive appointment in terms of any Statute or law. He submits that this is purely a stop-gap arrangement. Hence, he submits that, since no substantive right of the petitioner is violated, this writ application is not maintainable.
The order of the learned Single Judge, as relied upon by learned senior counsel, is apparently on different facts where both the contesting parties were holding the posts of Professor in the respective departments. Hence, the Court held that, in between them, overall seniority reckoning from the date of their initial appointment should have been taken into account for posting of petitioner as Incharge Principal. The Court also noticed that the petitioner was due to superannuate in December, 2003 whereas respondent no.3 of the case had more years and hence he could await as he would get chance of such appointment later on.
There is no dispute that a teacher of a College is appointed in the College as Incharge Principal as a stop-gap arrangement awaiting substantive appointment of Principal of the College. For this also, ordinarily University should take into account the overall seniority of the teachers working in the College Patna High Court CWJC No.2175 of 2014 (4) dt.12-08-2014 4/4 in different departments. But seniority in cadre has to take precedence over length of service, as in the present case.
This Court would like to make it clear that it will be an anomalous situation, where a teacher junior in the cadre is appointed as Incharge Principal, leaving aside a teacher working in higher cadre. If this proposition is accepted then it may be possible that a lecturer working and initially appointed in a college earlier, but having not been given promotion on the post of Reader, Associate Professor or Professor for whatever reason, may claim to be appointed as Incharge Principal over substantively promoted and working of Reader, Associate Professor and Professor. Law cannot be stretched to this limit.
In the circumstances, this Court does not find any merit in this writ application. The same is dismissed.
However, this Court would like to observe that such a dispute arises only due to delay on the part of the University to post/appoint regular Principal in the College. Therefore, University is directed to take steps for regular appointment/posting of a Principal in the College as expeditiously as possible.
(Jayanandan Singh, J) B.T/-
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