Jharkhand High Court
Uday Narain Choudhary vs State Of Jharkhand & Ors. on 26 November, 2009
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4892 of 2003
With
W.P. (C ) No. 4663 of 2002
Uday Narain Choudhary... ... Petitioner in 4892/03
Nawleshwari Jha... ... ... ... ... Petitioner in 4663/02
Versus
1. State of Jharkhand
2. Chancellor of Universities, Ranchi
3. Vice-Chancellor, Sidhu Kanhu University
4. Registrar, Sidhu Kanhu University'
5. Secretary, Human Resources Development,
6. Secretary, Bihar College Service Commission, Patna
7. Secretary, S.V.S.S.P.S., Janjatiya Mahavidyalaya, Pathargaon
8. Principal, S.V.S.S.P.S, Janjatiya Mahavidalaya, Patharganwan
9. Navleshwar Jha ... ... ... ...Respondent in 4892/03
1.The State of Jharkhand
2. The Bihar College Service Commissiion
3. The President, S.V.S.S.P.S College Pathargama (Godda)
4. The Principal, S.V.S.S.P.S College Pathargama (Godda)
5. Sri Udai Narayan Choudhary
6. Registrar, Sidhu Kanhu University... .....Respondent in 4663/02
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For the Petitioner in 4892/03: Mr. Ramavtar Sharma
in 4663/02: Mr. Ajit Kumar, D.K. Pathak
For the Res. N0 9 in 4892/03: Mr. Ajit Kumar
For the University : Mr. Sanjay Piprawall
---- ---- ----
PRESENT: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
------
Amareshwar Sahay, J In view of the fact that both the writ applications are inter-
connected and, therefore, both the applications are taken up
together and are disposed of by this common judgment.
Facts of W.P. (S ) No. 4892 of 2003:
2. The petitioner, Uday Narain Choudhary, has challenged the
order as contained in Annexure-7 to this writ petition i. e. the order
passed by the Chancellor, Universities of Jharkhand by which the
representation filed by Nawleshwari Jha, questioning the legality of
the appointment of the writ petitioner, Uday Narain Choudhary, as
lecturer in the department of Philosophy in S.V.S.S.P.S. Janjatiya
Mahavidyalaya, Pathargama, Godda, was allowed and appointment
of writ petitioner, Uday Narain Choudhary was declared to be illegal
with a direction to the Governing Body of S.V.S.S.P.S college to
appoint Mr. Nawleshwari Jha as lecturer in the department of
Philosophy in the said college.
3. The case of the writ petitioner, Uday Narain Choudhary, is
that on 1.8.1988 he was appointed by the Governing Body of the
college as lecturer on temporary basis in the department of
Philosophy and accordingly he joined on 5.8.2008. The aforesaid
college is affiliated with Sidhu Kanhu University, Dumka.
Subsequently in the year 1998, an advertisement was published by
Bihar College Service Commission inviting applications for the post
of lecturer in the department of Philosophy in S.V.S.S.P.S Janjatiya
Mahavidyalaya, Pathargama, Godda. The petitioner applied for
being appointed as lecturer in the department of Philosophy in the
said college having requisite qualifications. The college in question
also recommended his name for such appointment. Ultimately, the
Bihar College Service Commission by issuing Annexure 3
recommended the names of two persons against 3rd post in the
department of Philosophy. The name of Nawaleshwar Jha-
respondent no. 9 was placed at Serial no. 1 whereas the name of
Uday Narain Choudhary was placed at serial no. 2 in the order of
preference. The Governing Body of the college appointed the
petitioner, Uday Narain Choudhary against the 3rd post as lecturer
in the department of Philosophy. The respondent no. 9,
Nawleshwar Jha being aggrieved by the appointment of the
petitioner made a representation before the Chancellor, Universities
of Jharkhand making grievance that though his name appeared at
serial no. 1 in the recommendation made by the Bihar College
Service Commission but ignoring his name, the Governing Body of
the college has appointed Uday Narain Choudhary as lecturer in
the department of philosophy though he was at serial no. 2 in the
recommendation of the Bihar College Service Commission.
4. From perusal of the order of the Chancellor, Universities of
Jharkhand, it appears that he after considering the judgment of
Patna High Court in the case Bahadur Prasad Vs. Bihar College
Service Commission passed in C.W.J.C. No. 1911 of 2000
disposed of on 28.6.2001 held that when the name of a person is
placed at serial no. 1 in the select list by the selecting authority,
denial of appointment to him and giving the appointment to a
person placed lower is a clear violation of Article 14 and 16 of the
Constitution of India. Accordingly, after considering the facts and
circumstances of the case, he came to the conclusion that the
appointment of petitioner, Uday Narain Choudhary against the 3rd
post as lecturer in the department of philosophy in S.V.S.S.P.S.
Janajhati College, Pathergama, Godda is illegal.
5. Mr. Ramavtar Sharma, learned counsel appearing for the
petitioner, submitted that sub-section 7 and 9 of Section 2 of the
Bihar College Service Commission Act, 1976 speaks about the
appointment of lecturer subject to approval of University. He
submits that the recommendation of the College Service
Commission for appointment to other lecturer is only advisory in
nature and it is not mandatory to appoint the person who is placed
at Serial no. 1 in the recommendation. He further submitted that the
Governing Body of the College was not bound to accept the
preferential recommendation made by the College Service
Commission. The only requirement for the Governing Body was
that person should be appointed from the recommendation made
by the College Service Commission but not in order of preference
as recommended by the College Service Commission.
6. In my view, such submission is liable to be outrightly rejected
in view of the clear cut provision of Sub-Section 7 and 9 of Section
2 of the College Service Commission Act, 1976. For reference Sub-
Section 7 and 9 of Section 2 are quoted herein below:
2 ( 7). Subject to the approval of the
University, appointments, dismissals,
removals, termination of service or
reduction in rank of teachers of
{affiliated colleges and intermediate
colleges shall be made by the
governing body of the college on the
recommendation of the Commission.
2 (9) The commission shall
recommend for appointment to every
post of teacher names of two persons
arranged in order of preference and
considered by the Commission to be
the best qualified therefor. The
commission shall be valid for one year
from the date of the recommendation
by the Commission.
7. Sub-Section 7 of Section 2 of the College Service
Commission Act, 1976 quoted herein above speaks about the
appointment, dismissal, removals, termination of service or
reduction of rank of teachers of affiliated college shall be made
subject to approval of the University on the recommendation of the
Commission. The Use of word 'shall' in the Sub-Section clearly
indicates that it was not advisory or directory rather it was
absolutely mandatory for the Governing Body to act in order of
preference on the recommendation of the commission. Sub-Section
9 of Section 2 clearly speaks that the commission shall recommend
for appointment of every post of teacher names of two persons
arranged in order of preference. If the recommendation of the
College Service Commission made of two persons in order of
preference is ignored by the Governing Body of the College then it
would amount to violation of Provisions of Section 9 of Section of
the Bihar College Service Commission Act, 1976.
8. In the case of Jatinder Kumar and others Vs. State of
Punjab and others (A.I.R. 1984 Supreme Court 1850), the
Supreme Court, while dealing with a case of the recommendation
made by Public Service Commission, has held that the appointment
has to be made strictly adhering to the order of merit as
recommended by the Public Service Commission. It cannot disturb
the order of merit according to its own sweat will except for other
good reasons viz., bad conduct or character.
9. In the present case, I also find that the University did not
approve the appointment of the petitioner.
10. In view of the discussion and finding above, I hold that the
Chancellor, University of Jharkhand has rightly held that the
petitioner was wrongly and illegally appointed as lecturer in the
department of Philosophy in S.V.S.S.P.S College, Pathargama,
Godda ignoring respondent no. 9 who was recommended by the
Bihar College Service Commission and was placed at serial no. 1,
I do not find any illegality or irregularities in the said order.
Therefore, this writ petition having no merit is hereby dismissed.
However, there shall be no order as to costs.
W.P.(S) No. 4663 of 2002
In this writ petition, the petitioner has prayed for direction
upon the respondents to appoint him as lecturer in S.V.S.S.P.S,
College, Pathawgama, Godda on the 3rd post as per the
recommendation of Bihar College Service Commission, Patna. In
view of the fact that the writ petition being W.P. (S) No. 4892 of
2003 filed by Uday Narain Choudhary has already been dismissed
by me and the order of Chancellor contained in Annexure 7 to the
writ petition, has been affirmed, this writ petition is allowed and the
respondent-Governing Body of the S.V.S.S.P.S. College,
Pathargama, Godda is directed to implement the order of
Chancellor, University of Jharkhand as contained in Annexure-9 to
the supplementary affidavit I.e Annexure 7 to the earlier writ petition
being W.P.(S) No. 4892 of 2003, within a period of four weeks from
the date of receipt/production of this order.
Consequently the W.P. (S) No. 4892 of 2003 is hereby
dismissed whereas W.P. (S) No. 4663 of 2002 is hereby allowed.
No costs.
(AMARESHWAR SAHAY, J)
Jharkhand High Court,
Ranchi,Dated, 26th November, 2009
Alankar/- N.A.F.R.