Jharkhand High Court
Biresh Kumar vs Vinoba Bhave University,Hazari on 14 December, 2009
Equivalent citations: 2010 LAB. I. C. (NOC) 769 (JHAR.), 2010 (2) AIR JHAR R 455 (2010) 2 JCR 356 (JHA), (2010) 2 JCR 356 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5321 of 2003
Biresh Kumar ..... ..... ..... ...... ..... Petitioner
--Versus--
1. Vinoba Bhave University, Hazaribagh, through-
its Vice-Chancellor, at & P.O. Hazaribagh, Dist.Hazaribagh
2. Governing Body of Patratu Thermal Power Station
College, Patratu, through- its Secretary
3. Subodh Kumar, Lecturer in Chemistry, P.T.P.S.,
College, Patratu, Dist: Hazaribagh ..... ...... Respondents
....
CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
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For the Petitioner :M/s. M. Sohail Anwar, Altaf Hussain
For the V. B. University :Mrs. Indrani Sen Choudhary
For the Respondent No.3 :Mr. D. K. Dubey
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05/ 14.12.2009Heard the parties.
The facts, which are admitted in this writ petition, are:
that the petitioner as well as Respondent no.3 were appointed as Lecturers in the Department of Chemistry in P.T.P.S. College at Patratu, which is affiliated under the Vinoba Bhave University, Hazaribagh. According to the petitioner, in the P.T.P.S. College, two posts of Lecturers in the Department of Chemistry were to be filled up, for which Bihar College Service Commission recommended the names of two persons contained in Annexure-1, in order of preference. As per the recommendation, against the First Post the name of the petitioner namely Biresh Kumar was at Sl No.1 i.e. by way of First Preference; whereas, the name of the Respondent No.3 namely Subodh Kumar was at Sl. No.2, i.e. by way of Second Preference. Against the second post, the name of the respondent no.3 Subodh Kumar was recommended as First Preference, whereas, the name of one Sukumar Bera was recommended as Second Preference for the second post. The said recommendation was sent to the University on 5.4.1999. The dispute between the petitioner and the respondent No.3 is only with regard to seniority.-2- W.P.(S) No. 5321 of 2003
As it appears that the petitioner as well as the respondent no.3 were appointed by the Governing Body, but according to the Governing Body of P.T.P.S. College as well as according to Respondent no.3, since the respondent no.3 was continuing in service in the College since 28.2.1994, and therefore, was appointed as Lecturer in the Department of Chemistry against the First Post and as such he ranked senior to the petitioner. It is stated that in order to maintain seniority, Subodh Kumar, the respondent No.3, was appointed against the first post, whereas Biresh Kumar was appointed against the second post. On the other hand, the claim of the petitioner is that since his name was recommended by way of First Preference against the First Post, and therefore, his appointment as Lecturer in the Department of Chemistry in the College has to be treated against the First Post and not against second or any other post.
As it appears from the counter affidavit of the University that the University also wrote a letter to the Secretary of the P.T.P.S. College vide Annexure-'A' that the appointment of Subodh Kumar against the first post is contrary to the recommendation made by the Bihar College Service Commission, and as such, the same is violative of the law and the rules of the University. Therefore, the question of approving the name of Subodh Kumar as a Lecturer against the first post does not arise.
It also appears that in reply to the letter of the Managing Committee of the College, the University vide its letter dated 18.10.2006 contained in Annexure-'C' to the counter affidavit, informed the Managing Committee that the decision taken by the Managing Committee of the College was not correct, and accordingly, the College was directed to remove the anomaly and inform the University within a period of fifteen days. -3- W.P.(S) No. 5321 of 2003
Mr. M.S. Anwar, learned counsel appearing for the petitioner submitted that in view of the fact that the name of the petitioner was recommended by the College Service Commission against the First Post being First Preference, and therefore, the Managing Committee of the College was bound to accept the recommendation of the College Service Commission in order of preference mentioned in the recommendation of the College Service Commission, because the recommendation in order of merit was mandatory in nature. The College had no jurisdiction to alter or change the recommendation made by the College Service Commission.
On the other hand, Mr. Dubey, learned counsel appearing for the Respondent No.3, submitted that both the persons i.e. the petitioner and the respondent no.3 were appointed as per the recommendation made by the Bihar College Service Commission. He argued that the recommendation of the Commission in order of preference was only directory and not mandatory.
In my view, the submission made by Mr. Dubey, learned counsel appearing for the respondent no.3 has to be rejected in view of the fact that the name of the petitioner was recommended only against the first post as first preference. His name was not recommended for the second post at all, therefore, the petitioner could not have been appointed against the second post.
In this view of the matter, since the petitioner was recommended only against the First post as First preference, therefore, he has to be treated as appointed only against the First post and not against the second post. So far the respondent no.3 is concerned, since his name was recommended against Second post by way of First preference, and therefore, his appointment has to be treated against the second post. The decision of the Managing committee to treat the appointment of the petitioner against the second post and to treat the appointment of the respondent no.3 -4- W.P.(S) No. 5321 of 2003 against the first post is totally against the recommendation made by the College Service Commission, and therefore, the same cannot be sustained. The notification as contained in Annexure-6 by the Secretary of the P.T.P.S. College treating the respondent no.3 as Lecturer in the Department of Chemistry against the first post, is, hereby, quashed, and the Managing committee of the College, is, hereby, directed to treat the respondent no.3 as a Lecturer appointed against the second post in the Department of Chemistry.
Pursuant to this order, the University is directed to issue consequential order forthwith.
For the reasons stated above, this writ petition stands allowed. No order as to costs.
(AMARESHWAR SAHAY, J.) SI/