Patna High Court
Dr.Ramesh Jha And Anr vs The State Of Bihar And Ors on 24 September, 2019
Equivalent citations: AIRONLINE 2019 PAT 1732, 2020 LAB IC 104
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7039 of 2011
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1. Dr. Ramesh Jha, S/O Late Bachaee Jha, R/O Village- Hainthibali, P.O.-
Kothia, Via-J hanjharpur, P.S.- Jhanjharpur, Distt.- Madhubani.
2. Dr. Priyambada Kumari Mishra, W/O Shri Mithilesh Kumar Pandeya R/O
Village + P.O.- Madhopatti, Karntol, P.S.- Madhopatti, Distt.- Darbhanga.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Human Resources
Development Department, Government of Bihar, Patna
2. The Director, Higher Education, Human Resources Development Deptt.,
Bihar, Patna.
3. Kameshwar Singh, Darbhanga Sanskrit University, Darbhanga Through Its
Registrar.
4. The Vice-Chancellor, Kameshwar Singh Dabhanga Sanskrit University,
Darbhanga.
5. The Resistrar, Kameshwar Singh Darbhanga Sanskrit University,
Darbhanga.
6. Anil Kumar Ishwar, Principal, Govt. Sanskrit College, Kajipur, Patna.
7. Vinay Kumar Singh, Principal, Umesh Sanskrit College, Tarauni,
Darbhanga.
8. Ghanshyam Mishra, Principal, M.M. Lata Sanskrit College, Lohna,
Madhubani.
9. Abha Kumari, Principal, Bharat Mishra Sanskrit College, Chapra.
10. Rajendra Prasad Choudhur, Principal, R.B. Sanskrit College, Bediban, East
Champaran.
11. Kanchanmala Pandit, Principal, Madneshwar Nath Sanskrit College,
Madneshwar Sthan, Madhubani.
12. Ashok Kumar Purvey, Principal, Jagdamba Sanskrit College, Bathe,
Darbhanga.
13. Ravi Shankar Jha, Principal, Purnima Rampratap Sanskrit College, Bagni,
Darbhanga.
14. Rameshwar Rai, Principal, Shri Ram Sanskrit College, Biajipur, Gopalganj.
15. Dineshwar Yadav, Principal, Nandan Sanskrit College, Ishahpur,
Madhubani.
16. Ashok Kumar Ajad, Principal, Laxminarain Sanskrit College, Jaidevpatti,
Darbhanga.
17. Manoj Kumar, Principal, B.P. Arya Sanskrit College, Siwan.
18. Bhaglu Jha, Principal, Sidheshwai Sanskrit College, Pachrukhia, Bhojpur.
19. Prabhash Chandra, Principal, Shivprasad Degree College, Rampur,
Umarpur, Buxar.
20. Harinarayan Thakur, Principal, Ramadhin Mishra Bhaskaroday Sanskrit
Patna High Court CWJC No.7039 of 2011 dt.24-09-2019
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College, Devdhia, Buxar.
21. Premkant Jha, Principal, Ugratara Bharti Mandan Sanskrit College, Mahishi,
Saharsa.
22. Ashwini Kumar Sharma, Principal, D.S.S., College, Rambagh Road,
Muzaffarpur.
23. Jitendra Kumar, Principal, Brajbhushan Sanskrit College, Kharkhura, Gaya.
24. Suresh Kumar, Principal, Raghavendra Sanskrit College, Taretpali, Patna.
25. Umesh Kumar Singh, Principal, Awadh Bihari Sanskrit College, Rahimpur,
Khagaria.
26. Shiv Lochan Jha, Principal, Kalyani Mithila Sanskrit College, Deep,
Madhubani.
27. Dinesh Jha, Principal, Baba Saheb Ram Sanskrit College, Pachadhi,
Darbhanga.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Abhinav Srivastava
For the Respondent/s : Mr.Lalit Kishore, Advocate General
For the University : Mr. Awadhesh Prasad Singh, Advocate
For Respondent No.20 : Mr. Chittranjan Sinha, Sr. Advocate
Mr. Dhirendra Kumar Jha, Advocate
For the respondents : Mr. Y. V. Giri, Sr. Advocate
Mr. P. K. Shahi, Sr. Advocate
Mr. K. N. Singh, Sr. Advocate
Mr. Durga Nand Kha, Advocate
Mr. Arun Kumar, Advocate
Mr. Satyam Shivam Sundram, Advocate
Mr. Mukund Mohan Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date : 24-09-2019
This case has a chequered history, on different dates this
case was heard at length and on 03.10.2018, the Court finally
heard the matter and directed that the case be posted for orders.
2. After the order dated 03.10.2018, on one or the other
pretext, the respondents including the University sought
adjournment. The Court was made to understand that some kind of
solution of the problem involved in the present writ application is
under active consideration. The different orders passed after
Patna High Court CWJC No.7039 of 2011 dt.24-09-2019
3/25
03.10.2018is indicative of the fact that except buying time by the respondents to workout the solution no effective decision was taken and as a default the private respondents despite serious infirmities in their selection and appointment continued to enjoy all benefits.
3. The Court under the aforesaid circumstance left with no option but to decide the writ application.
4. The writ application was filed by two petitioners challenging the selection of respondent nos. 6 to 27 against the post of Principals in different constituent colleges under the respondent University. On 01.02.2018, I.A. No. 899 of 2011 was filed by one Dayanath Thakur for intervention enclosing documents to highlight illegality and arbitrariness in the matter of selection of respondent nos. 6 to 27. Annexures were enclosed to indicate that respondent nos. 6, 11 and 14 were not even eligible on the cut off date and their achievement upto 2009 was considered and they have been awarded marks for such achievements of 2009. The intervener has also enclosed the report of the High Level Committee of the Legislative Council to substantiate illegality in the selection in a big way.
5. Manifolds infirmities has been highlighted by the petitioners and intervener in the matter of selection and Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 4/25 appointment of the private respondents. The infirmity highlighted by the petitioners in the writ applications begins that the constitution of the selection committee comprising of the expert, who were not drawn from the list approved by the Academic Council of the University. The petitioners have also highlighted the infirmity in the selection of respondent nos. 6 to 27, as most of them were not eligible in terms of the advertisement, yet they have been appointed and there selection and appointment is example of nepotism and favouritism.
6. Mr. Abhinav Srivastava, learned counsel for the petitioners has highlighted the infirmities in the selection. He referred to the Advertisement No.1 of 2008, issued by the University, which is enclosed as Annexure-1 to the writ application.
7. Mr. Srivastava, with reference to Annexure-1 submitted that different posts were advertised by the University and application was invited within 30 days. The qualification for the post of Principal and the manner of selection was also indicated in the advertisement itself. The post in question (Principal), the advertisement prescribed the qualification for appointment of Principal, the eligibility, age and other conditions for the purpose of making application and selection was also Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 5/25 indicated in the advertisement. The relevant part of the advertisement is quoted below for ready reference:
"dkes"ojflag&njHkaxk laLd`r fo"ofo|ky;] dkes"ojuxj] njHkaxk ¼fcgkj½ foKkiu la[;k& 1@2008 fuEufyf[kr inksa ij fu;qfDr gsrq ifjfu;r ;ksx;rk/kkjh Hkkjrh; ukxfjdksa ls fu/kkZfjr izi= esa vkosnu i= vkefU=r fd;s tkrs gSa tks bl dk;kZy; esa foKkiu izdk"ku frfFk ls 30 ¼rhl½ fnuksa ds vUnj igq¡p tkus pkfg, %& Ø0 laLFk in fo'k; dqy vkjf{kr vukjf{kr l0 fjfDr 1- Luk0 lkfgR; foHkkx izkpk;Z LkkfgR; 1 X 1 ¼Professor½ mikpk;Z lkfgR; 1 X ¼Reader ½ 1¼v0fi0o0½ 2- Luk0 O;kdj.k foHkkx izkpk;Z O;kdj.k 1 X 1 ¼Professor½ mikpk;Z O;kdj.k 2 1 ¼Reader ½ 1¼v0tk0½ 3- Luk0 n"kZu foHkkx izkpk;Z T;kSfr'k 1 X 1 ¼Professor½ O;k[;krk T;kSfr'k 2 1 ¼Lecturer½ 1¼v0fi0o0½ 4- Luk0 n"kZu foHkkx izkpk;Z n"kZu 1 X 1 ¼Professor½ X mikpk;Z n"kZu 1 1¼fiNM++koxZ½ X ¼Reader ½ O;k[;krk n"kZu 1 ¼Lecturer½ 1¼v0tk0½ 5- Luk0 osn foHkkx izkpk;Z osn 1 X 1 ¼Professor½ 1 O;k[;krk osn 2 ¼Lecturer½ 1¼fiNM++koxZ½ 6- Luk0 /keZ"kkL= foHkkx mikpk;Z /keZ"kkL= 2 1¼v0fi0o0½ 1 ¼Reader ½ 7 vaxhHkwr egkfo|ky; iz/kkukpk;Z 31 15 16 ¼Principal ½ v0fi0o0& 5 v0tk0 & 5 fi0o0 & 4 fi0o0e0 & 1 dqy & 15 ;ksx 47 22 25 in dh izd`fr & lHkh in LFkk;h gSaA Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 6/25 osrueku & Ø0la0 in osrueku 1- izkpk;kZ ¼Professor½ 16400-450-20900-500-22500 2- mikpk;Z ¼Reader½ 12000-420-18300 3- O;k[;krk ¼Lecturer½ 8000-275-13500 4- iz/kkukpk;Z ¼Principal½ 12000-420-18300 iz/kkukpk;Z ¼Principal½
(i) An Aacharya/Master Degree in Traditional Subject with a least 55 % of the marks or its equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E, and F.
(ii) Ph. D. or Equivalent qualification.
(iii) Total experience of 10 years of Teaching/Research in Universities/colleges and other institutions of Higher Education/ Note % For all posts Acharya Degree holders will get priority.
Seven Point Scale Grade Grade Point Percentage Equivalent 'O'= Outstanding 5.50-6.00 75-100 'A'= Very Good 4.50-5.49 65-74 'B' = Good 3-50-4.49 55-64 'C' = Average 2.50-3.49 45-54 'D'= Below Averge 1-50-2.49 35-44 'E' = Poor 0.50-1.49 25-3 'F' = Fail 0.0-0.49 0-25 Relaxation
1. A relaxation of 5% shall be provided from 55 % to 50 % of the marks at the Master's level for the SC/ST category/
2. A relaxation of 5% shall be provided from 55% to 50% of the marks to the Ph.D. degree holders who have passed their Master degree prior to 19th September, 1991.
3. A relaxation of 5 % may be provided from 55% to 50% of the marks at the Master's level for the physically and visually handicapped persons."
Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 7/25
8. Mr. Srivastava, learned counsel for the petitioners, with reference to the provisions of Section 57(1) of the Bihar State Universities Act and the amended provisions of the Bihar State Universities Act (enumerated under Sections 57(1) and 57B) has highlighted that statute of the University prescribed the minimum qualification and eligibility for appointment. The Act also provide for constitution of the selection committee and the mode of the constitution of the selection committee.
9. Mr. Srivastava highlighted that in terms of the mandate of Section 57(1) of the Act and the Statute of the University, there is requirement of approval of the experts named by the Academic Council. After the approval of the name of the expert by the Academic Council, the selection committee is required to be constituted to screen the case of the eligible candidate and select candidate for appointment. He also highlighted that the Academic Council has never recommended the name of experts and experts have been nominated by the Vice- chancellor, as the member of the selection committee from his own and not from the approved panel of experts, and since the experts were not approved by the Academic Council, the entire selection process is vitiated. He next contended that in the process of evaluation, the selection committee in most arbitrary manner Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 8/25 awarded marks. He submits that there is no objectivity in the decision making process of the University. In case of petitioners, different yardstick was practiced by the respondent University whereas the private respondents have been considered eligible notwithstanding the fact that they were lacking eligibility in terms of the advertisement and the condition prescribed in the Statute for appointment and to crown it all their subsequent achievements were considered for eligibility and award of marks.
10. He referred to the case of certain private respondents that they were not even holding basic qualification and eligibility criteria, yet they have been considered for appointment. There was no material to admit the teaching experience, yet the University extended favour to them and notwithstanding non-fulfilling the condition as to the eligibility, the respondents have accommodated them in the selection and appointment. The marks awarded in interview manifests the highhandedness in the matter of appointment and selection.
11. Mr. Srivastava in order to buttress this point has drawn attention of this Court to the Chart enclosed in the supplementary counter affidavit filed on behalf of respondent nos. 7, 10, 23 and 24. The Chart is self explanatory. The marks awarded to the candidate on the face of it, indicate that the candidates were Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 9/25 awarded marks even 20 out of 20 in interview side and petitioner no.1 has been eliminated by declaring him ineligible. The candidature of the petitioner no.1 was rejected on the ground that he lacks experience. The marks awarded in the interview is also indicative of the fact that in order to extend undue favour to the blue eyed marks 20 out of 20, 18 out of 20 and 19 out of 20 was awarded to those candidates, who were blue eyed and they have been selected on such award of marks. In the general category, the last candidate selected was selected with 69 marks, whereas in the Backward Class Category, the cut off marks was 69 marks and in Extremely Backward Class Category 63 was the cut off marks. The manner in which the marks for experience and interview was awarded leaves no room for any kind of doubt that the entire selection process was illegal, arbitrary and there is hankey pankey in the entire selection process. Annexure-2 Series as well as the Annexures enclosed by the intervener is self explanatory that all norms of selection was totally ignored and selection was made notwithstanding respondents were not even possessing the minimum eligibility criterian. At one point of time, this Court directed constitution of expert committee to ascertain whether the University objectively considered the eligibility of the candidate in the process of selection and whether the marks was awarded for Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 10/25 experience and interview in the process of selection or not. In fact High Level Committee of experts was constituted and the report supports the alelgation of petitioner. On the previous occasion, the Court noticed that there are large number of infirmity, which vitiates the entire selection process, but at the request of the University and the private respondents that there exist vacancy where the petitioner no.1 and intervenor may be accommodated, the Court granted indulgence to the University to adopt corrective measures and to consider the case of the petitioners and the intervener to rectify the mistake in the matter of selection.
12. It may be relevant to mention here that the Court has noted in the previous order dated 04.09.2018 that petitioner no.1 and intervener were rendered ineligible on account of non- completion of 10 years of teaching experience on cut off date, but from the record it transpired that the University has considered the achievement of many candidates after cut off date ignoring the fact that the other candidates, whose achievements was taken into consideration was up to January, 2009. Post cut off date experience was taken into consideration for their eligibility and even marks was awarded for Ph.D. by the respondents for achievements after cut off date.
Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 11/25
13. It is reiterated here that during the pendency of the case, the matter as to eligibility in the selection was examined by the University and three men committee was constituted comprising of experts in the subject and the report of the experts committee of High Level Committee Comprising of Professor Ark Nath Chaudhary (Chairman), Former Vice-chancellor, Shri Somnth Sanskrit University, Werawal, Gujarat, Professor Debi Prasad Tripathi (Member), Professor and Head of the Department, Bastu Shastra Department, Shri Lal Bahadur Shashtri National Sanskrit Vidyalaya, New Delhi and Professor Bajesh Kumar Shukla (Member), Professor and Former Chairman, Sanskrit and Prakrit Bhasa Department, Lucknow University, Lucknow. The High Level Committee noted manifold infirmities in the selection. The High Level Committee has examined the entire records of 22 Principals, who were appointed. The report of high level committee dated 24.11.2018 is quoted herein below for ready reference;
dkes"oj flag njHkaxk laLd`r fo"ofo|ky; }kjk iz/kkukpk;ksaZ dh fu;qfä ls lEcfU/kr mPpLrjh; lfefr ¼High Level Commiittee½ dk izfrosnu ekuuh; mPp U;k;ky; iVuk ds }kjk dsl u-&7039@2011 ds lEcU/k ea fnukad 03@10@2018 dks ikfjr vkns"k dh vuqikyuk esa dkes"oj flag njHkaxk laLd`r fo"ofo|ky; ds iz/kkukpk;ksaZ dh fu;qfä;ksa esa gqbZ vfu;ferrkvksa dk iqujh{k.k dj izfrosnu izLrqr djus gsrq ,d mPpLrjh; lfefr ¼HEC½ dk xBu ekuuh; dqyifr }kjk fnukad 09@10@2018 dks fd;k x;kA ftlds v/kksfyf[kr lnL; ukfer fd;s x;s%& 1- izks- vdZukFk pkS/kjh & v/;{k Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 12/25 iwoZ dqyifr Jh lkseukFk laLd`r ;qfuoflZVh osjkoy] xqtjkr ,oa izkPkk;Z & jk'Vªh; laLd`r laLFkku ¼ekfur fo"ofo|ky;½] t;iqj] ifjlj t;iqj] jktLFkkuA 2- izks- nsohizlkn f=ikBh & lnL;
izksQslj ,oa v/;{k okLrq"kkó foHkkx Jh yky cgknqj "kkóh jk'Vªh; laLd`r fo|kihB ¼ekfur fo"ofo|ky;½] ubZ fnYyhA 3- izks- c`ts"k dqekj "kqDy & lnL;
izksQslj ,oa iwoZ v/;{k laLd`r rFkk izkd`r Hkk'kk foHkkx] y[kuÅ fo"ofo|ky;] y[kuÅ ¼mÙkj izns"k½A mi;Zqä lfefr ds lHkh inkf/kdkjh;ksa us fnukad 10@11@2018 dks izFke cSBd dj fo"ofo|ky; ds foKkiu la-&01@2008 fnukad 03@12@2008 ds vkyksd esa vkosfnr ,oa p;fur ;ksX;rk lwph dk lexzrk ds lkFk voyksdu fd;k A layXud &01 iqu% fnukad 21@11@2018 dks lHkh inkf/kdkfj;ksa us fcgkj fo/kku ifj'kn~ ds izfrosnu rFkk dkes"oj flag njHkaxk laLd`r fo"ofo|ky; ds iwoZ dqyifr izksQslj jktpUnz >k }kjk i=kad & VCO- 71/13 fnukad & 12@11@2013 ,oa VCO-72/13 fnukad 12@11@2013 dks la;qä lfpo jkTkHkou iVuk fcgkj dks fy[ks i=ksa ij xEHkhjrk iwoZd foospu fd;kA fnukad 22@11@2018 dks 2009 bZ- esa fu;qä rFkk muesa orZeku esa dk;Zjr ,oa lsokfuo`r 22 izkpk;ksZa dks cqykdj mudh ;ksX;rk] vuqHko] osrueku] QkWe u- 16] ITR ,oa "kks/kys[k vkfn ds lEcu/k esa lk{kkRdkj }kjk lexz lEcfU/kr tkudkjh izkIr dh ,oa "kks/ki= vkfn vfHkys[kksa dh tk¡p dhA 22 iz/kkukpk;ksZa esa ls 21 mifLFkr gq,A MkW- vfuy dqekj bZ"oj vuqifLFkr jgsA lexz tk¡p ds ckn lfefr us ik;k fd & dbZ fu;qä iz/kkukpk;Z fu;qfä ls iwoZ esa foÙkjfgr egkfo|ky;ksa esa dk;Zjr Fks ftUgsa 1000 ;k 1500 dh ekfld nj ls o'kZ esa 1 ;k 2 ckj dqN jkf"k izkIr gksrh Fkh] tks Lo;a fu;qä iz/kkukpk;ksaZ ds }kjk lfefr ds le{k ekSf[kd :i ls crk;k x;kA MkW- vkHkk dqekjh us crk;k fd mUgsa dHkh Hkh dqN Hkh jkf"k izkIr ugha gqbZA bUgksaus dksbZ Hkh izek.k i= lfefr ds le{k izLrqr ugha fd;kA la- 5 osrueku 12000&18300 ¼la"kksf/kr osrueku 01@01@2006 37400 & 67000 AGP 10000½ esa ,sls foÙk jfgr iwoZ izk/;kidksa dh iz/kkukpk;Z in ij fu;qfä vfu;ferrk dks lwfpr djrh gSa ;g Hkh lEHko gS fd os ukeek= ds fy, mu laLFkkvksa ls tqM+s gksa vkSj mUgksaus v/;kiu dk;Z fd;k gh u gksA ;g fd lfefr us fcgkj fo/kku ifj'kn~ ds izfrosnu ,oa iwoZ dqyifr izksQslj jktpUnz >k ds izfrosnu dks Hkh vf/kdka"kr% rF;ksa ds vk/kkj ij lgh ik;kA lfefr us ;g ik;k fd MkW- vfuy dqekj bZ"oj ekbuksfjVh dkWyst Hkkxyiqj ds QthZ v/;kiu vuqHko izke.k i= ds vk/kkj ij fu;qä fd;s x;sA mlh le; ;s Jh iafMr lj;w gtkjh vH;qn; laLd`rksPp fo|kky; vH;qn; uxj] ck¡dk esa loZrfud dk;Z dj jgs FksA budk vuqHko 10 $2 fo|ky; esa v/;kiu dk vuqHko gSA ;s foKku fo'k; ds f"k{kd FksA budh LukrdksÙkj ,oa ih&,p0Mh dh fMxzh Hkh foKku ¼xf.kr½ fo'k; esa gh gSaA tcfd ijEijkxr laLd`r fo'k; esa vkpk;Z@,e-,e ;ksX;rk foKkiu esa ek¡xh xbZ FkhA layXud &02 Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 13/25 MkW- jktsUnz izlkn pkS/kqj us fgUnh vkSj laLd`r esa ,d gh o'kZ 1988 esa ckck lkgsc vEcsMdj fcgkj fo"ofo|ky;] eqt¶Qjiqj] fcgkj ls LukdksÙkj ijh{kk mÙkh.kZ dh gS tks lafnX/k izrhr gksrh gSA MkW- jktsUnz izlkn pkS/kqj us viuk v/;kiu fo'k; laLd`r crk;k gS fdUrq budh ih&,p-Mh- dh fMxzh fgUnh fo'k; esa gSA fo"ofo|ky; vuqnku vk;ksx ¼UGC½ v/;kiu ls lEc) fo'k; esa gh ih&,p-Mh- fMxzh dks ekU; djrk gSA ;s foÙk jfgr egkfo|ky; esa dk;Zjr FksaA bUgsa dqN Hkh osru izkIr ugha gksrk FkkA ;s viuk QkWeZ u- 16 ,oa ITR Hkh izLrqr ugha dj ldsA layXud &03 MkW- v"kksd dqekj vktkn vaxzsth esa ,e-,- gSa] vaxzsth esa gh ih&,p-Mh- gSa] buds "kks/k ys[k Hkh vaxzsth fo'k; esa gh gSa vkSj budk v/;kiu fo'k; Hkh vaxzsth gh jgk gSa foKkiu esa pkgh xbZ iz/kkukpk;Z dh ;ksX;rk ds foijhr budh fu;qfä dh xbZ gSA layXud&04 MkW- jked`'.k ik.Ms; ijegal esfjV vad 75] MkW- mn; "kadj ik.Ms; esfjV vad 73] Jh jkefd"kksj ik.Ms; esfjV vad 73] MkW- xtkuUn ik.Ms; esfjV vad 73] MkW- ij"kqjke "kekZ esfjV vad 72] rFkk MkW- jek >kk esfjV vad 71 dks p;u lfefr us **iz"kklfud n`f'V ls ;ksX; ugha** fy[kdj lk{kkRdkj ds vad gh ugha fn;s] tcfd foKkiu esa iz"kklfud ;ksX;rk ugah ek¡xh xbZ FkhA ;fn bUgsa lk{kkRdkj ds vad fn;s tkrs rks ;s dfri; p;fud iz/kkukpk;ksZa ls ojh;rk lwph esa Åij gksrs] ;gk¡ ;s rF; vfu;ferrk dks gh lwfpr djrs gSaA layXud&06 MkW- fgjukjk;.k Bkdqj ,oa MkW- mes"k izlkn flag lsokfuo`fr gks pqdsa gSa budh fu;qfä lgh ik;h xbZA ;kfpdkdrkZ ,oa iz/kkukpk;Z in ij fu;qfä ls oafpr MkW- jes"k >k] vU; fu;qä izkpk;ksZa dh rjg dh lk{kkRdkj dh frfFk esa 10 o'kksZa ls vf/kd dk vuqHko j[krs gSa rFkk budk esfjV vad 75 gS] fdUrq vKkr dkj.ko"k **"kS{kf.kd vuqHko viw.kZ** fy[kdj p;ulfefr us lk{kkRdkj ds vad gh ugha fn;sA ;fn bUgsa Hkh vad fn;s tkrs rks budh Hkh fu;qfä lqfuf"pr gksrhA Intervenor ¼eqdnesa esa e/;&oknh½ MkW n;kukFk Bkdqj tks lk{kkRdkj ds le; fu;fer osrueku esa fu;qä izk/;kid Fks] mUgsa euethZ ls lk{kkRdkj esa U;wure vad 4 fn;s x;sA tcfd osru jfgr dk;Z djus okys ¼lafnX/k v/;kiu vuqHko okys½ dks mPpre 18] 19] 20 rd lk{kkRdkj esa vad fn;s x;sa ;gk¡ fn;s x;sA ;gk¡ Hkh ;g rF; vfu;ferrk dk ladsr djrk gSA fnukad 23%11%2018 dks MkW jes"k >k lfefr ds le{k izLrqr gq, vkSj fyf[kr esa bUgksaus lizek.k viuh fu;qfä dk vkSfpR; crk;kA fnukad 23%11%2018 dks gh n;kukFk Bkdqj us mifLFkr gq, fcuk viuk i{k fyf[kr :i esa izLrqr fd;kA ekuuh; mPp U;k;ky; ds fu.kZ; ds vkyksd esa lfefr dk fu'd'kZ
1. MkW- vfuy dqekj bZ"oj ds QthZ vuqHko ,oa ijEijkxr fo'k; esa LukrdksÙkj ,oa ih&,p-Mh- dh fMxzh u gksus ds dkj.k foKkiu dh vfuok;Z ;ksX;rk ds vHkko esa lfefr fu;qfä ds fy, ;ksX; ughs ekurh gSA vr% bl lEcU/k esa ekuuh; mPp U;k;ky; ds fn"kk funsZ"kkuqlkj fo"ofo|ky; iz"kklu dk;Zokgh djsA
2. MkW- jktsUnz izlkn pkS/kqj dh ih&,p-Mh- fMxzh v/;kiu fo'k; laLd`r esa ugha gksus ds dkj.k ¼ fgUnh fo'k; es gksus ds dkj.k½ rFkk 1988 esa fgUnh ,oa laLd`r fo'k; esa ,e-,- ijh{kk mÙkh.kZrk dh lafnX/krk dks ns[krs gq, rFkk foKkiu ds vuqlkj vfuok;Z ;ksX;rk u gksus ds dkj.k lfefr fu;qfä ds ;ksX; ugha ekurh gSa vr% bl lEcu/k esa ekuuh; mPp U;k;ky; ds fn"kk funsZ"kkuqlkj fo"ofo|ky; iz"kklu dk;Zokgh djsA
3. MkW- v"kksd dqekj vktkn dks foKkiu esa mfYyf[kr vfuok;Z ;ksX;rk LukrdksÙkj laLd`r fo'k; ,oa laLd`r esa ih&,p-Mh- u gksus ds dkj.k iz/kkukpk;Z in ij lh/kh HkrhZ ds fy, lfefr loZFkk v;ksX; ekurh gSA vr% bl lEcU/k esa ekuuh; mPp U;k;ky; ds fn"kk funZs"kkuqlkj fo"ofo|ky; iz"kklu dk;Zokgh djsA
4. vU; fu;qä iz/kkukpk;Z foKkiu esa mfYyf[kr vfuok;Z ;ksX;rk dks iw.kZ djrs gSa A br% budh 9 o'kksZa dh fujUrj lsok] xzg.kkf/kdkj ¼LIEN½ dh lekfIr ,oa Hkfo'; dh dfBukb;ksa dks ns[krs gq, muds in ij cus jgus ij lfefr dks dksbZ vkifÙk izrhr ugha gksrh gSA Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 14/25
5. ;kfpkddkdrkZ MkW- jes"k >k ds lkFk gq, vU;k; dk fuokj.k djus ds fy, lsokfuo`Ùk iz/kkukpk;ksZa ds fjä in ij MkW- jes"k >k dks fu;qä djus esa dksbZ vkifÙk ugha fn[krh gSa vr% ekuuh; mPp U;k;ky; ds fn"kk funsZ"kkuqlkj fo"ofo|ky; iz"kklu visf{kr dk;Zokgh djsA
6. Intervenor ¼eqdnesa esa e/;&oknh½ MkW n;kukFk Bkdqj dks Hkh lsokfuo`r iz/kkukpk;Z ds fjä ij fu;qfä ekuuh; mPp U;k;ky; ds fn"kk funsZ"kkuqlkj fo"ofo|ky; iz"kklu djsA
7. pqafd lg leLr izdj.k ekuuh; mPp U;k;ky; ds le{k fopkjk/khu gSA vr% ;g izfrosnu ekuuh; mPp U;k;ky; ds lg;ksx ds fy, fd;k x;k gSA g0@& g0@& g0@& izks- vdZukFk pkS/kjh izks- nsohizlkn f=ikBh izks- c`ts"k dqekj "kqDy v/;{k lnL; lnL;
24@11@18 24@11@18 24@11@18
14. Learned counsel appearing on behalf of the intervenor has highlighted the infirmity in the selection with reference to the report of Committee of the Legislative Council, but the report of the Legislative Council was for the benefit of Legislative Council and it cannot be relied as conclusive material so far as the present case is concerned, as the Court cannot rely upon such report, which was for the benefit of the Bihar Legislative Council.
15. After the report of the High Level Committee quoted herein above, the matter was deliberated upon in the meeting of the Syndicate of the University. On 16.02.2019, the Syndicate of the University took the decision to obtain the legal opinion in the matter. After obtaining legal opinion, the Syndicate in its meeting dated 19.03.2019 decided to appoint petitioner no.1, Dr. Ramesh Jha and intervener, namely, Dayanath Thakur.
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16. The Syndicate also decided that Dr. R.P. Choudhur, Dr. Anil Ishwar and Dr. Ashok Kumar Azad should be noticed as to why not their services be terminated. The decision of the Syndicate after the report of the High Level Committee is indicative of the fact that the Syndicate of the University on the basis of scrutiny of material by the High Level Committee and its report came to the conclusion that exclusion of the petitioner and the intervener was arbitrary and illegal and at the same time the Syndicate came to a conclusion that the selection/recommendation of appointment of Dr. R.P. Choudhur, Dr. Anil Ishwar and Dr. Ashok Kumar Azad suffered from infirmity, which goes to the root of entire selection.
17. In the counter affidavit stand was taken that on account of ensuing general election the present case should be adjourned so that the Syndicate may take appropriate decision after general election is over.
18. A counter affidavit was also filed on behalf of the respondent University on 21.06.2019 where the stand was taken by the University that on 19.03.2019 resolution was taken by the Syndicate to offer letter of appointment to the writ petitioner Ramesh Jha and Dr. Dayanand Thakur for taking their consent within 15 days.
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19. Under the aforesaid circumstances, the Court granted further indulgence to the University in order to give quietus to the litigation. The affidavit filed on behalf of the University reiterated that the petitioner no.1 and the intervenor would be adjusted against the vacancy available and without disturbing the other selected candidates, the dispute can be amicably settled. On different dates impression was created that the matter was referred to the Hon'ble Chancellor for appropriate guideline and the decision and on that pretext adjournment was sought by the respondents. It is to be noted here that counsel for the private respondents have now raised the ground that they are continuing on the post for the last 10 years and there is equity in favour of the respondents who are continuing for the last 10 years. In some of the cases, they highlighted that earlier they were on lien and their lien expired, therefore, they will be rendered jobless. Attempt was also made to persuade the Court that respondent nos. 20 and 25 have since retired and their cases deserve sympathetic consideration.
20. Even today, Mr. Durganand Jha, learned counsel appearing on behalf of the respondents has submitted that considering the hardship of the private respondents this Court should not grant any indulgence to the petitioner, which shall have Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 17/25 the effect of disturbing the respondents, who are continuing for the last 10 years and have been confirmed on the said post.
21. The question of equity does not arise in the present case for the obvious reason that the petitioners have been ousted from the zone of consideration on illegal and on oblique consideration whereas these respondents have been favoured in the matter of selection and appointment. They are beneficiaries of the illegal act in the nature of scrutiny, selection and recommendation and as such they cannot claim any equity on account of either lapse of lien/retirement of respondent nos. 20 and 25 or on account of confirmation and continuity in service for the last ten years.
22. What is illegal remains illegal and illegality cannot be cured by efflux of time, particularly, when the writ petition challenging their appointment was pending since 2011, the subsequent events of expiry of lien will not infuse legality in their selection and appointment.
23. As discussed herein above, the appointment on the post of Principal in the constituent college is definitely an appointment on a public post and time and again the Apex Court has clarified the legal position that right to equal opportunity is granted under Article 16 of the Constitution, which is available to Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 18/25 all citizen and that cannot be defeated by adopting dubious means. If the parameters are prescribed for selection under the Act/Statute, then the validity of the selection has to be tested at the touch stone of the objective standard in the matter of scrutiny and selection, the Court cannot ignore the fact that ignoring one parameter to extend favour to one at the cost of disadvantage to other defeats the equal opportunity clause, which is guaranteed under Article 16 of the Constitution of India.
24. Ordinarily, the Court should not interfere in the selection process where experts opinion are the basis of selection, but the Apex Court has occasion to decide the issue whether the person, who participated in the process if not selected can challenge the selection or not.
25. It is highlighted by Mr. Y.V. Giri, learned senior counsel for the respondents that the petitioners have participated in the selection process and therefore, they are estopped from questioning the validity of the selection.
26. The aforesaid issue raised by Mr. Giri and Mr. P.K. Shahi is no more res-integra. The Apex Court has occasion to decide such issue in the case of Dalpat Abasaheb Solunke etc. etc. v. Dr. B.S. Mahajan etc., AIR 1990 SC 434 where the Apex Court has held out that when the selection Committee itself is Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 19/25 constituted in an illegal manner then mere participation in the selection does not dis-entitlement the person to challenge the validity of the selection and appointment.
27. In the instant case, when the members of the expert committee was drawn not from the list approved by the Academic Council, then it goes to the root of the constitution of the selection committee itself and as such the issue of constitution of selection committee is involved in the present case and, therefore, the Court is of the considered view that the petitioners cannot be shut even at the threshold from challenging the legality and validity of the selection of respondent nos. 6 to 27.
28. The submission of the counsel appearing on behalf of the respondents in the matter where the lien expired, the Court should not grant any interference in the matter is also misconceived.
29. Counsel for the respondents placed heavy reliance on the judgment of the Apex Court in the case of Girjesh Shrivastava & Ors vs. State Of M.P. & Ors, reported in (2010) 10 SCC 707 and the subsequent judgment of this Court in the case of Sri Shankar Prasad & Ors. Vs. the State of Bihar & Ors, reported in 2011 (4) PLJR 873.
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30. The principle discussed in those judgments is inapplicable in the peculiar facts of the case; Firstly; The aforesaid judgment of Apex Court is relevant on the point that there shall be no Public Interest Litigation in service matter, which is not the facts situation in the present case.
Secondly; In the present case, the appointments were made in 2009 and the writ petition was filed on 11.04.2011 i.e. before the expiry of the lien and as such the principle discussed in the case of Girijesh Shrivastava & Ors (supra) has no application, as the respondent were aware of the fact that their selection has been challenged in the present case before expiry of the period of lien and they have themselves decided to continue in the present position, notwithstanding the challenge and noticing the fact that infirmities in the selection process are elementary in nature and it goes to the root of the case and vitiate the entire selection process.
Thirdly; In case where the incumbent lack illegibility for appointment, the question of expiry of lien does not help the candidate, who have been favoured in the selection process.
Fourthly; In a situation where the entire selection process is vitiated for non-adherence to the mandatory provisions Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 21/25 for selection contemplated under the Universities Act and Statute. Such plea of equity is not available. The respondents cannot be heard saying that they are beneficiary of appointment, but they have no role in the matter of selection and, therefore, they are entitled to protection of their interest and equity is in their favour, because they have been allowed to work for 10 years and in the meanwhile they have been confirmed. The event during the penedncy of the writ application since, 2011 whether confirmation or allowing the private respondents to continue for 10 years cannot help the private respondents as equity, begets equity and in the absence of equity in their conduct, the Court cannot extend any equitable hands in favour of the private respondents.
Lastly; in a situation, where Articles 14 and 16 of the Constitution stands vitiated, equity cannot apply to protect the appointment made in teeth of Articles 14 and 16 of the Constitution, as in the instant case.
31. In this case, at one point of time, attempt was made on behalf of the University to persuade the Court that the members of the expert Committee were drawn from the list approved by the Academic Council. The University has enclosed Annexure-A to contend that the Academic Council has approved the list. From perusal of Annexure-A, it is crystal clear that the list Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 22/25 on which the heavy reliance was placed by the University was not a list of expert members for the purpose of appointment of Principal, but it was for the purpose of appointment of Professor and as such the Court is not in a position to accept the contention of the University that the expert committee were from approved panel. This fact can be gathered from the document contained in Annexure-A itself. Annexure-A itself is indicative of the fact that no list was approved by the Academic Council, which was relied upon by the University to contend that the list of expert was drawn from the name of the expert approved by the Academic Council. The submission runs contrary to the record.
32. From the materials available in the record, the Court finds that all the private respondents have relied upon the experience certificating of working in one or the other institution. Even the working experience is taken for the purpose of continuity, which is enough to indicate that scrutiny was farce and without any objective consideration and in order to favour the blue eyed, their eligibility was accepted and the candidates, who were otherwise within the zone of consideration and were sure to be selected on account of their academic achievement including petitioner no.1 was ousted from the zone of consideration saying that he lacks eligibility. His academic achievement is indicative of Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 23/25 the fact that even the minimum marks in the interview would have been enough for his selection, the only way to oust him from the zone of consideration was to render him ineligible. The allocation of marks 20 out of 20 in the interview side is manifestation of the highhandedness, nepotism and favouritism. The report of the High Level Committee, which was in fact accepted by the University and the decision was taken by the Syndicate of the University having competence in the matter of appointment is indicative of the fact that the respondent University has admitted that there was illegality in the matter of selection and decision was taken to issue notice and follow the principles of natural justice before dispensing with the service of three Principals, namely, Dr. R.P. Choudhur, Dr. Anil Ishwar and Dr. Ashok Kumar Azad, the University in its affidavit has indicated that there is no doubt that petitioner no.1 and the intervener respondent deserve to be accommodated.
33. This Court, as evident from the previous order sheet granted enough indulgence to the respondents to settle the issue of petitioner no.1 and intervener.
34. I am reminded of the story of Mahabharat where Pandava requested to Kaurvas that kindly allocate five village and settle the dispute, but there was no response and the failure to part Patna High Court CWJC No.7039 of 2011 dt.24-09-2019 24/25 with five village led to Mahabharta. In the present case, the petitioners in the peculiar facts of the case after noticing the High Level Committee report have agreed that they are not interested in pond of flash like Shylock, they were only interested in settling the dispute by accommodating the petitioner and intervernor. The humility of the petitioner and their patience for years together was taken for a ride and on different dates adjournment was sought on the ground that the matter is pending at the level of Hon'ble Chancellor.
35. The Court under the aforesaid circumstances after waiting for nearly one year of the order dated 03.10.2018 was constrained to take the unpleasant decision of declaring the entire selection process as vitiated. The report of the High Level Committee and the materials which are available on the record including the experience certificate, the eligibility criteria and its scrutiny in arbitrary manner and lastly in awarding marks for interview goes to the root of the selection process and such selection process cannot sustain.
36. Accordingly, the entire selection process is declared to be illegal, arbitrary and unconstitutional and the selection and appointment of respondent nos. 6 to 27 are declared as unconstitutional and accordingly quashed.
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37. In the result, the writ application succeeds. The respondents are directed to undertake fresh process of selection of the candidates, who were the candidates in response to 2008 Advertisement and consider the eligibility of all the candidates in terms of Annexure-1 i.e. the last date, in terms of the advertisement and complete fresh selection process within a period of three months from the date of receipt/production of a copy of this order.
38. In the event, any of the private respondents or the petitioner as well as intervener is selected shall be entitled to the benefit of appointment in terms of the advertisement contained in Annexure-1. However, the private respondents, if selected afresh, shall be entitled to the continuity in service and benefit of post service.
39. The original copy of the report of the High Level Committee is returned to Mr. Awadhesh Prasad Singh, learned counsel appearing for the University.
(Anil Kumar Upadhyay, J) uday/-
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