Jharkhand High Court
Bhasker Manuvansh vs Vinoba Bhave University on 21 February, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 450 of 2004
Bhasker Manuvansh, son of Late Ganesh Lal Yadav, resident of
Quarter No.EO-121, Block No.11, Janta Nagar, P.O. P.T.P.S., Patratu
Thermal, District- Hazaribagh ... Petitioner
-Versus-
1. Vinoba Bhave University, Hazaribagh through its Vice-Chancellor
2. Registrar, Vinoba Bhave University, Hazaribagh
3. Bihar College Service Commission, through its Secretary, Vishnu
Bhawan, Boring Cannel Road, Patna, Bihar
4. Governing Body of P.T.P.S. College, through its Secretary, P.O. Patratu,
District- Hazaribagh
5. Shri Vidya Nandan Sharma, Lecturer in Political Science, P.T.P.S.
College, Patratu, P.O. Patratu, District- Hazaribagh
6. Smt. Pushpa Singh, Lecturer in Political Science, P.T.P.S. College,
Patratu, P.O. Patraru, District- Hazaribagh ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Afaque Ahmed, Advocate
Mr. Sharabhil Ahmed, Advocate
For the VBU : Mr. Mithilesh Singh, Advocate
For the State of Bihar : Mr. Binit Chandra, A.C. to G.A. (Bihar)
For Respondent No.4 : Mr. Shivam Singh, Advocate
For Respondent No.6 : Mr. Arvind Kumar Singh, Advocate
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35/21.02.2025 This writ petition is assigned to this Bench by Hon'ble the Chief
Justice and that is how, this matter is listed before this Bench.
2. Heard Mr. Afaque Ahmed, learned counsel for the petitioner, Mr. Mithilesh Singh, learned counsel for the Vinoba Bhave University, Mr. Binit Chandra, learned counsel for the State of Bihar, Mr. Shivam Singh, learned counsel for respondent no.4, which is the Governing Body of the P.T.P.S. College Patratu and Mr. Arvind Kumar Singh, learned counsel for respondent no.6.
3. The prayer in the writ petition is made for direction upon respondent no.4 to treat the petitioner as working on regular basis against the first sanctioned post of a Lecturer in Political Science as duly recommended by -1- W.P.(S) No. 450 of 2004 the Commission. The further prayer is made for cancellation of appointment of respondent nos. 5 and 6 on the ground that they are illegally continuing as Lecturers in the Department of Political Science in P.T.P.S. College, Patratu. The prayer is also made for quashing any recommendation of the Bihar College Service Commission in favour of respondent nos. 5 and 6. The further prayer is made to pay increments to the petitioner.
4. Mr. Afaque Ahmed, learned counsel for the petitioner submits that the Bihar College Service Commission published advertisement vide Advertisement No.1-1197/89 dated 10.01.1990, whereby, applications were invited for various posts of Lecturers and Principals as required in different Colleges in the State of Bihar. The petitioner had applied in light of the said advertisement in respect of two permanent posts of Lecturer in Political Science in P.T.P.S. College, Patratu, District- Hazaribagh. He submits that the last date for applying for the vacancies was extended upto 16.11.1993 which would be clear from the advertisement in last page of Times of India, contained in Annexure-1. He further submits that the petitioner was called for interview by the Commission and, thereafter, the Commission sent its recommendation through letter no.702 dated 07.06.1996, whereby, it recommended the names of the candidates for the two sanctioned posts of Lecturers in Political Science and the petitioner's name was recommended at Serial No.1 against first sanctioned post and he was also informed about his name being recommended through a letter No.703, dated 07.06.1996, contained in Annexure-2 and 2/A to the petition. According to him, the petitioner thereafter applied and prayed for his joining in PTPS College, which is an affiliated College of respondent no.1-Vinoba Bhave University, -2- W.P.(S) No. 450 of 2004 but nothing has come forward and the matter was kept pending and, thereafter the said Commission has further reminded the P.T.P.S. College vide letter No.387 dated 17.12.1996, but it was informed that the process was final and unchangeable and the appointment should be made as per the recommendation. He refers to Annexure-3 to buttress this argument. He then submits that since the petitioner was not allowed to join, he made representation to the University informing about the situation. The Registrar of the University directed the Secretary, P.T.P.S. College vide Memo No. VBL/7264-7265/97, dated 14.05.1997 to convene a meeting of the Governing Body of the College immediately for considering the Commission's recommendation for Lecturer in Political Science and to make appointment of the first nominee before 7th June, 1997. He also submits that the petitioner has sent a legal notice to the Secretary of the said College. By way of referring Annexure-5 to the petition, he submits that by the letter dated 03.06.1999 the petitioner was finally appointed. He joined on 21.06.1999 and working continuously as a Lecturer in Political Science in the said P.T.P.S. College, Patratu. He submits that the temporary appointment of the petitioner was approved by the Governing Body in its meeting dated 21.11.1999 and notification was also issued in this regard on 07.12.1999, contained in Annexure-7. He then submits that respondent no.5, namely, Vidya Nandan Sharma was working on purely temporary basis as Lecturer in P.T.P.S. College, Patratu and his case was rejected by the Commission and his name was not recommended by the Commission for want of requisite qualification, however, respondent nos. 5 and 6 have been illegally appointed without any recommendation or valid recommendation of -3- W.P.(S) No. 450 of 2004 the Commission. He submits that the petitioner made efforts to get himself confirmed on the first sanctioned post on the basis of his recommendation by the Commission and he had written a letter to the Vice-Chancellor of the University on 25.07.2002 claiming permanent appointment on the first sanctioned post as per the recommendation of the Commission and again reminder was given by the petitioner on 07.06.2003. By way of referring paragraph 16 of the petition, he submits that the Vice-Chancellor of the University has constituted a committee to examine the case of the petitioner through a notification dated 01.09.2003. He then submits that the matter is still pending at the end of the University and the matter has to be examined by the Committee and on that basis, the University has to take the decision. He submits that till date, no decision has been taken by the University as per the knowledge of the petitioner and that has been disclosed in paragraph 17 of the petition. He also submits that since the petitioner has raised the question of illegal appointment of respondent nos. 5 and 6, a show-cause notice has been issued to the petitioner on 11.12.2003, contained in Annexure-9 of the petition and that is made only to harass the petitioner and to help respondent nos. 5 and 6. He submits that the petitioner's service has been absorbed w.e.f. 01.08.2020 and now he superannuated from the service on 31.07.2021. He submits that the grievance of the petitioner is that he has been allowed to retire and the past service has not been taken into consideration and the regularization was made w.e.f. 01.08.2020. He further elaborates his argument by submitting that once valid recommendation of the Commission is there, the action on the part of the Governing Body of P.T.P.S. College/ University is arbitrary. He -4- W.P.(S) No. 450 of 2004 relied upon the judgment passed in the case of Biresh Kumar v. Vinoba Bhave University, Hazaribagh and others, reported in 2009 SCC OnLine Jhar 1941.
5. Mr. Afaque Ahmed, learned counsel for the petitioner further relied upon the judgment passed in the case of Uday Narain Choudhary v. State of Jharkhand & others, reported in 2009 SCC OnLine Jhar 1837. He refers paragraph 8 of the judgment, which reads as under:
"8. In the case of Jatinder Kumar v. State of Punjab (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."
Relying on the above judgments, he submits that the case of the petitioner is fully covered and in view of that, proper direction may kindly be issued.
6. Mr. Afaque Ahmed, learned counsel for the petitioner also relied upon the judgment passed in the case of Triloki Nath Upadhya v. The Chairman, Bihar College Service Commission and others, reported in 2000 SCC OnLine Pat 390. He refers paragraphs 20, 21, 25, 26 and 27 of the said judgment, which read as under:
"20. It will be evident from sub-sections (9) and (10) of section 2 of Bihar College Service Commission Act, 1976 that two names for one post the Commission is liable to send, in order of merit, giving preference to the meritorious one. It is not in dispute that the name of petitioner was preferred over Respondents 5 and 6 and reflected in the panel prepared by the Commission.
21. In the aforesaid circumstances, the Governing Body had no option, but to appoint the candidate on the basis of preference, as recommended by the Commission and had no right to choose the second candidate preferring over the -5- W.P.(S) No. 450 of 2004 first.
25. The relevant provisions of Bihar State Universities Act fell for consideration before Division Bench of this Court in Sri Chandra Bhushan Prasad Singh v. Chancellor, Bihar University, reported in (1979) B.B.C.J. 384.
26. In the said case, the matter of appointment of Lecturer by Governing Body or Syndicate on the recommendation of Commission, the Court held that the appointment has to be made in order of recommendation. Such appointment has to be also approved by the Chancellor.
27. In the aforesaid circumstances, the Governing Body of the College had no jurisdiction to over-look the recommendation made by the Commission by superseding more meritorious candidate i.e. the petitioner, giving preference to the lesser one i.e. the 5th and 6th Respondents."
Relying on the above judgment, he submits that overlooking the recommendation of the Commission and superseding the petitioner amounts to arbitrariness and, therefore, in light of the said judgment, the prayer made in this petition may kindly be allowed.
7. On these grounds, Mr. Afaque Ahmed, learned counsel for the petitioner submits that this petition may kindly be allowed and appropriate direction may kindly be issued and the appointments of respondent nos. 5 and 6 may kindly be quashed.
8. Mr. Shivam Singh, learned counsel for respondent no.4 submits that during the pendency of the writ petition, the petitioner along with respondent nos. 5 and 6 retired from the College. The petitioner retired on 31.07.2021, respondent no.5, namely Vidya Nandan Sharma retired on 01.12.2009 and respondent no.6, namely, Pushpa Singh retired on 30.09.2019. He submits that the main grievance of the petitioner is that the service of the petitioner has not been regularized by the Governing Body of P.T.P.S. College. He submits that the said college is a private college which holds its permanent affiliation from Vinoba Bhave University, Hazaribagh. He -6- W.P.(S) No. 450 of 2004 submits that on the representation of the petitioner, the Vinoba Bhave University constitutes 2 Men High Power Committee vide letter dated 01.09.2003. He further submits that the said Committee has given its report on 06.05.2004, which was accepted by the Vice-Chancellor of the Vinoba Bhave University on 26.06.2004. He also submits that the said Committee has also examined the case of the petitioner and others and, thereafter, the said report has been submitted. He refers to the said report, contained in the supplementary counter affidavit filed by respondent no.4 and submits that the petitioner is an influential man and on influence only, he got the name recommended and in view of that, the Committee has given the reasons for rejecting the claim of the petitioner. He submits that the Committee has further found that other two persons i.e. respondent nos. 5 and 6 were more meritorious than the petitioner. He further submits that in view of acceptance of the said report by the Vice-Chancellor of the University, the case of the petitioner is not fit to be considered by this Court. He also submits that even the said report is not under challenge in this petition. The writ petition was filed in the year 2004 and the said report was also submitted in the year 2004, however till date, the petitioner has not disclosed this fact before this Court and that fact has been brought before this Court by respondent no.4 by way of filing supplementary counter affidavit. He submits that the writ petition is filed under Article 226 of the Constitution of India and if such suppression is made by the petitioner, the writ petition at the threshold is fit to be dismissed. He relied upon the judgment passed in the case of Prestige Lights Ltd. v. State Bank of India, reported in (2007) 8 SCC 449. He refers paragraphs 33, 34 and 35 -7- W.P.(S) No. 450 of 2004 of the said judgment, which read as under:
"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R. v. Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] , in the following words:
"[I]t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts--facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the imperfect statement."
(emphasis supplied)
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
Relying on the above judgment, learned counsel for respondent no.4 submits that the case of the petitioner is coming within the purview of the -8- W.P.(S) No. 450 of 2004 direction made by the Hon'ble Supreme Court in the aforesaid judgment and, as such, this petition may kindly be dismissed.
9. Mr. Mithilesh Singh, learned counsel appearing for the Vinoba Bhave University-respondent nos. 1 and 2 submits that P.T.P.S. College, Patratu is an affiliated college of the Vinoba Bhave University, Hazaribagh without any financial aid from the University. He submits that the involvement/role of the University is limited and is guided by Sections 59 and 60 of the Bihar State University Act, 1976 (now Jharkhand State University Act, 2000) and the said Act has been adopted by the State of Jharkhand. He further submits that the appointment of the Lecturer in an affiliated college against a sanctioned post is to be made on the recommendation of the concerned Service Commission, earlier the Bihar College Service Commission, Patna before the formation of the State of Jharkhand in terms of the provisions contained in Section 57(A) of the said University Act, was working and Section 2 of the Bihar College Service Commission Act also guides temporary appointments. He also submits that in light of paragraph 3 of the petition, the cause of action arose and such panel has already expired. He submits that the recommendation for appointment on the post of Lecturer in Political Science in the College expired after one year and the panel was existing till 07.06.1997 as the panel was created on 07.06.1996. He further submits that pursuant to representation of the petitioner, the University constituted 2 Men High Power Committee and the Committee after visiting the college, interviewed all the four working persons in the Political Science department and going through the documents presented by the concerned parties and the college office submitted its report to the University on -9- W.P.(S) No. 450 of 2004 06.05.2004, which has been accepted by the Vice-Chancellor of the University on 26.06.2004. The Committee has rejected the claim of the petitioner that the appointments of respondent nos. 5 and 6 are illegal and without any valid recommendation of the Commission. He submits that the charges were found to be baseless and incorrect. In contrast, the Committee found that the petitioner was able to get temporary appointment because of under pressure of a high-up authority. On these grounds, he submits that this petition is fit to be dismissed.
10. Mr. Binit Chandra, learned counsel appearing on behalf of the respondent-State of Bihar submits that in light of the Bihar State Universities Act, particularly, Section 57(A), the appointment of the Teacher of an affiliated college not maintained by the State Government and that is being maintained by the Governing Body on the recommendation of the Bihar College Service Commission. He further submits that the recommendations made for appointment of the Teachers in an affiliated college by the Commission are not available to the Higher Education Directorate of Education Department, Government of Bihar. He also submits that the Bihar College Service Commission was established for the purpose of selection and recommendation of suitable candidates for appointment to the post of Teacher in affiliated college in the State of Bihar. He submits that the advertisement was made by the said Commission. He submits that from the record, it transpires that the Commission has recommended the names of the persons for appointment on the first and second post of Lecturer in the College in question. On the first post, the names of two persons were recommended in which the name of the petitioner is at Serial no.1 and, -10- W.P.(S) No. 450 of 2004 thereafter, the appointment was made by the Governing Body giving preference to the first candidate of the recommended panel. He submits that it is now for the Governing Body and the University to take a call upon the request of the petitioner and the State of Bihar, at this stage, has got no role.
11. Mr. Arvind Kumar Singh, the learned counsel appearing on behalf of the respondent no.6 submits that the appointment of respondent no.6 was made in the year 1996, whereas, the writ petition was filed in the year 2004 and on the ground of delay and laches the writ petition itself is fit to be dismissed. He submits that the appointments of the respondent nos.5 and 6 have been questioned, however, the appointment letters of the respondent nos.5 and 6 have not been annexed with the writ petition. He submits that pursuant to the advertisement contained in Annexure -1 to the writ petition, the last date for submission of the application in the prescribed form was 30.01.1990 and extension of the date was only in respect of those candidates who were duly qualified and eligible to apply for the post on that date and for some reason could not apply and only in respect of those candidates, the date of submission of application was extended to 16.11.1993. He submits that the respondent no.6 has procured the photocopy of the mark-sheet of the petitioner of his Master of Arts, examination held in the month of August 1990 and the result was published on 11.10.1991 which evidently shows that the petitioner was not even eligible on 30.01.1990 to apply for the post of Lecturer in affiliated degree college in respect of the said advertisement. He submits that the said mark- sheet is annexed as Annexure-R-6/1 to the counter affidavit filed by the -11- W.P.(S) No. 450 of 2004 respondent no.6. He submits that the petitioner has not annexed any letter with the writ petition to suggest that the petitioner was ever called by the said Commission for the interview. He submits that the petitioner has not been able to join within time after 07.06.1996 and if he was recommended that is also superseded and the petitioner has only joined on 21.06.1999 and he has not been able to join the service due to certain lacuna. By way of referring Annexure-R-6/2, dated 19.05.1997 issued under the signature of the Secretary, P.T.P.S. College, Ranchi to the Registrar, Vinoba Bhave University, he submits that the Secretary has pointed out that the application of the petitioner was having shortcomings and the application was not fully completed. The date of birth was lacking to determine the age on application, the nationality is blank, sub-caste is not mentioned, percentage of marks is not given, Special Paper in Post-Graduate is not mentioned, percentage of marks in Honours Paper is not mentioned and subject of Honours is not mentioned. He submits that incomplete application was filed by the petitioner. The petitioner has applied in the year 1993 against the advertisement of 1990 and in spite of the above shortcomings, he has been selected first in order of preference. The Governing Body returned the said panel to the Commission to review the same and sent back the documents related to the marks and caste certificates as mark sheets and such certificates of Hazaribagh College were not sent prior. Till the issuing of the said letter, it has been pointed out in the said Annexure that the petitioner has not contacted the Secretary and he has further pointed out that the petitioner has not taken any steps and he has been making Pairvi and he is having a high approach for pressing -12- W.P.(S) No. 450 of 2004 the Governing Body for making appointment shortly without knowing all facts of the candidate. He submits that in this background, what has emerged from the letter of the Secretary, the appointment of the respondent nos.5 and 6 cannot be said to be illegal. He further submits that in the supplementary counter affidavit filed by the respondent no.6, a report of the High-Power Committee has been annexed and he further repeated his argument with regard to the report which has been argued by the learned counsel for the Governing Body of P.T.P.S. College-respondent no.4. He relied upon the judgment passed in the case of Anjali Saran v. State of Bihar and others, reported in 2004 (1) JCR 465 (Jhr) and submits that in view of the said judgment also, this petition is fit to be dismissed. On these grounds, he submits that the writ petition may kindly be dismissed.
12. In reply to the above, Mr. Afaque Ahmed, the learned counsel for the petitioner submits that the petitioner has not suppressed anything and the petitioner has disclosed the fact in paragraph nos.16 and 17 about the appointment of the Committee. He submits that the recommendation is already there and the arguments advanced by the learned counsel for the respondents are not tenable in view of the annexures annexed with the writ petition. He submits that there is no delay in filing the writ petition. He further submits that the petitioner was appointed on permanent post on the basis of recommendation of the Bihar College Service Commission, which has come in the notification dated 01.08.2005.
13. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the averments made in the writ petition, annexures annexed therewith as well as the counter -13- W.P.(S) No. 450 of 2004 affidavits filed by the learned counsels for the respective parties. It is an admitted position that the Advertisement No. 1-1197/89 was published contained in Annexure-1 which was extended till 16.11.1993 for the persons who have not been able to submit the form. Annexure-2 is the document on which reliance has been placed by the learned counsel appearing for the petitioner dated 07.06.1996, which is the recommendation made by the Commission and name of the petitioner is also disclosed. Annexure-2/A is the document to suggest that the Commission has requested that on the recommendation made only the appointment can be made. Annexure-3 dated 12.12.1996 suggests that the Commission has reiterated that the recommendation has been made for Political Science Department of the said College and the request was made to take steps for appointment and that is final and unchangeable. By the letter dated 03.06.1999, the petitioner was temporarily appointed and the petitioner has joined on 21.06.1999 by way of Annexure-6 and the recommendation was made on 07.12.1999 for appointment and approval by the P.T.P.S. College, Patratu. Annexure-8 is the representation of the petitioner dated 25.07.2002 by which he has requested the Vice Chancellor, Vinoba Bhave University to make direction with regard to the appointment made in the Political Science Department of the said College. Again the representation was made on 07.06.2003.
14. Based on the petitioner's representation, the Vice Chancellor, Vinoba Bhave University has constituted a High Power Committee. The High Power Committee's report has been brought on record by way of counter affidavit filed by the respondent nos.1 and 2 as well as by respondent no.4 and respondent no.6. The Court has minutely gone through the said report. The -14- W.P.(S) No. 450 of 2004 case of the petitioner was considered by the said Committee as fourth appointment, wherein, it has been disclosed that on temporary basis he was appointed on 03.06.1999 and he joined on 21.06.1999.
15. It has also come in the report that the petitioner has passed M.A in Political Science Examination of 1987 from L.N.M.U, Darbhanga held in August 1990 and obtained 57% marks. Two posts of Lecturers in Political Science on permanent basis were advertised on 10.01.1990 by Bihar College Service Commission along with many other posts in various Universities and Colleges with closing date as 30.01.1990. The closing date was, however, extended in 1993 upto 16.11.1993. The Commission vide letter No.702 dated 07.06.1996 addressed to the Secretary P.T.P.S College, Patratu recommended the name of the petitioner along with Smt. Sanju Kumari, for the first post and for the second post, the names of Smt. Sanju Kumari and Ms. Nilam Kerketta were recommended. The Committee has further found that in the letter of the Commission, the space where the Commission refers to the requisition received from College for the Advertisement and recommendation of names for appointment, was blank and in view of that, the Committee could not know the date when the requisition was sent to the Commission. It has been further disclosed in the report that the General Body of the College, in light of the provisions made in the Bihar College Service Commission Act, should select the names to be appointed preferably within three months counted from the date of recommendation and a prior to the panel would lapse after one year. Three months were to be completed on 07.09.1996. However, in place of making appointment from the panel, the Secretary by letter dated 07.09.1996 -15- W.P.(S) No. 450 of 2004 addressed to the Secretary of the said Commission raised objections over the panel on the ground that the Commission had totally ignored the claims of all the three Teachers of Political Science working in the College for 8 to 18 years. He has also pointed out that the General Body was facing difficulty and inability in appointing fresh persons, ignoring the long services of the working teachers. In that background, he returned the original copy of the panel to the Commission for reconsideration. The Committee has further found that the College records show that the Commission did not reply to that letter. However, the petitioner presented a copy of the letter from the Commission being No.387 dated 12.12.1996 to the Committee. This was said to be in response to the letter of the Secretary, P.T.P.S. College No. P.T.P.S.-19/100 dated 11.09.1996 wherein it was stated that the merit list by the Commission was final and unchangeable and directed the General Body to take necessary steps for appointment of Lecturers in Political Science from the panel list already sent. The Committee has further stated that the letter of the Secretary of the General Body, P.T.P.S shows the letter as No.19/98 dated 07.09.1996, whereas, the Commission's above letter refers the same as 19/100 dated 11.09.1996 and in view of that the Committee found it suspicious. On 13.05.1997, the petitioner made representation to the Vice Chancellor, Vinoba Bhave University requesting him to direct the General Body of P.T.P.S College to appoint the petitioner as Lecturer of Political Science on the recommendation of the Commission vide letter no.702 dated 07.06.1996 and the University on the basis of the said letter directed the General Body to make appointment of the first nominee before 07.06.1997. -16- W.P.(S) No. 450 of 2004 The University also warned that failure of the College to obey would attract initiation of proceedings for suspension or dissolution of the General Body. However, the Secretary of the College who was also the Deputy Director (Personnel) Thermal Power Station, Patraru in reply to the University letter submitted letter No. PTC/S/07/8 dated 19.05.1997 to the Registrar, Vinoba Bhave University raising the points that the University had not constituted the General Body in spite of repeated reminders and personal approach to the competent authority in spite of the permanent affiliation granted to the College by the Board of Governors on 10.10.1995 and that is why, no meeting of full General Body could be called to take decision for appointment. A meeting was called on 05.09.1996 i.e. after receiving the recommendation from the Commission, but no decision could be taken due to insufficient number of the members; secondly the application of the petitioner was incomplete in many respects but still his application was entertained by the Commission; thirdly the petitioner applied in 1993 against the advertisement published on 11.01.1990, whereas, he passed M.A in 1991; fourthly his academic career was poorer compared to the S.T candidate, namely, Ms. Nilam Kerketta, but he was given first preference in first post, whereas, Ms. Nilam Kerketta was given second preference in second post; fifthly the petitioner had high approach therefore he was applying pressure upon the Governing Body; sixthly the Commission did not follow the roster of reservation in sending the recommendation and seventhly the Commission was only a recommending Body and the appointing authority was the General Body who had to take into consideration the full facts in the interest of the College before making -17- W.P.(S) No. 450 of 2004 appointment. It has further been pointed out that emergent meeting of the General Body was held on 05.06.1997 and it was considered that the papers submitted by the Commission along with the panel of recommendation for appointment of Lecturers in Political Science did not give any information about the date of birth, percentage of marks in M.A, Sub-caste, Special Paper in M.A and year of passing of the petitioner, the first name against the first post, full details about the above were available in case of the second candidate on the first post namely Mrs. Sanju Kumari, so the General Body resolved to appoint the latter on the first post and regarding the second post, Ms. Nilam Kerketta was preferred as she was an S.T candidate. The appointment letter to them was issued by the Secretary, P.T.P.S College and they were asked to join by 21.06.1997 and these letters were also sent to the Registrar of Vinoba Bhave University. However, those candidates did not join and after one year, the Secretary of the College sent a letter to the Chairman Bihar Public Service Commission, Patna informing that the candidates who were issued appointment letters for appointment in Political Science on the basis of Commission's recommendation, did not join and further he requested the Chairman to send fresh names on the basis of interview held earlier. The Commission on 12.08.1998 sent the fresh panel of names i.e. for the first post, Sri Vidya Nandan Sharma and Smt. Pushpa Singh and for the second post Smt. Pushpa Singh and Ms. Nilam Kerketta. The said resolution was accepted by the General Body on 08.01.1999 and also resolved to regularize the services from the date of sanction of post or from the date of joining. Sri Vidya Nandan Sharma was appointed on 06.09.1980 and Smt. Pushpa Singh was appointed on -18- W.P.(S) No. 450 of 2004 01.09.1983 on temporary basis when no post in Political Science was sanctioned. The first post was sanctioned on 14.07.1986 and the second post on 18.12.1987. It has been further pointed out that till date only two posts of Lecturers in Political Science have been sanctioned. The Commission has further found that the petitioner by letter dated 20/25.07.2002 addressed to the Vice Chancellor, Vinoba Bhave University, Hazaribagh, a copy of which was also sent to the Secretary, P.T.P.S. College as well as to the Chancellor, Jharkhand and Education Minister, Government of Jharkhand claimed that the Bihar College Service Commission had appointed him on the first post as Lecturer in Political Science and the General Body may be accordingly directed. The petitioner again submitted a representation to the Registrar, Vinoba Bhave University and pursuant to his representation a High Power Committee was constituted.
16. In light of the above, the Enquiry Committee has found that under what circumstances the petitioner was appointed as fourth Lecturer in Political Science in June, 1999 and his recommendation by the Commission was earlier turned down by the General Body in 1996-1997 and one surplus Teacher was already working in the Department. The Committee answered the same in light of the note of the principal namely Sri G.R. Diwan on 02.06.1999 addressed to the Secretary General Body in the comment of the letter. It has been stated that the Deputy Chairman of Bihar Intermediate Council, Patna had specially requested for the appointment and thereafter the petitioner was appointed and it was assured then only then the obstacle in the path of inspection of the College or Intermediate affiliation could be removed and in light of that, the petitioner was appointed. In this -19- W.P.(S) No. 450 of 2004 background, the Committee has found that the claim of the petitioner to be absorbed against the first post is not sustainable because the first and second post have already filled up on the basis of recommendation of the Bihar College Service Commission in 1998 and his appointment is on temporary basis against the unsanctioned post.
17. What has emerged from the report, it is crystal clear that the petitioner is appointed on back-door entry and this report is not under challenge. Unless that report goes, the claim of the petitioner will not survive. There is clear cut finding of the Committee that there were only two sanctioned posts, on which, two persons were working and the petitioner was found to be highly influential person and on pressure, he was appointed on temporary basis. Even, one of the letters produced before the Committee by the petitioner was not tallying i.e. the letter number of the Secretary who has sought certain clarification from the Commission which clearly raised an eye-brow on the appointment of the petitioner.
18. What has emerged herein in light of the above discussion, it appears that the petitioner is a back-door entrant and as a fortunate person this petitioner was given appointment on temporary basis.
19. Nowadays, it has emerged that the persons who are holding the high
-ranking administrative post, they are appointing few persons on public post, may be kith and kin thereof or may be known to them. If such fact is brought to the knowledge of the Court, and prima facie, it appears that a back-door entry is made in the Government service, those services are required to be brought to an end. Only because a person is more influential, -20- W.P.(S) No. 450 of 2004 he cannot be allowed to continue on the post even if he is efficient to discharge the duties. It has been held by the Hon'ble Supreme Court in the case of State of Bihar v. Upendra Narayan Singh & others, reported in (2009) 5 SCC 65, wherein at paragraph nos.32, 44, 45, 65 and 67, it has been held as under:
"32. Notwithstanding the basic mandate of Article16 that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together.
44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.
45. Thousands of cases have been filed in the courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoils system in different dimensions and selections have been made for considerations other than merit.
65. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.
67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong -21- W.P.(S) No. 450 of 2004 order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order--Chandigarh Admn. v. Jagjit Singh, Jaipur Development Authority v. Daulat Mal Jain, Union of India v. J.V. Subhaiah, Gursharan Singh v. NDMC, State of Haryana v. Ram Kumar Mann, Faridabad CT. Scan Centre v. D.G. Health Services, Style (Dress Land) v. UT, Chandigarh, State of Bihar v. Kameshwar Prasad Singh, Union of India v. International Trading Co. and Directorate of Film Festivals v. Gaurav Ashwin Jain."
20. In the above judgment, it has been clearly held that if an illegality or irregularity has been committed in favour of any individual or a ground of individuals or a wrong order is passed by a judicial forum, others cannot invoke jurisdiction of the higher or superior Court(s) for repeating or multiplying the same irregularity or illegality for passing a wrong order.
21. In the case of State of Bihar and Others v. Chandreshwar Pathak, reported in (2014) 13 SCC 232 at paragraph nos.10, 11, 12 and 13, it has been held as under:
"10. The order of appointment, in the present case, is as follows:
"In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri Chandeshwar Pathak, s/o Shri Devnarayam Pathak of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1- 1988 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10, 565 EB-10-605 with the basic pay of Rs 425. He has been allotted CT No. 390." It is clear from the above order that the appointment has been given only on the asking of the Inspector General of Police. There is nothing to show that any advertisement was issued giving opportunity to all eligible candidates to compete or any selection process was undertaken before appointment of the respondent.
11. In State of Orissa v. Mamata Mohanty, it was observed as under:
"Appointment/employment without advertisement -22- W.P.(S) No. 450 of 2004
35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto would be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Supt. v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Deptt. of Telecommunications v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State of M.P. v. Mohd. Abrahim.)
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that everysuch appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.
13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in -23- W.P.(S) No. 450 of 2004 dismissing the writ petition while the Division Bench erred in interfering with the same."
22. It has been further held by the Hon'ble Supreme Court in the case of Renu & others v. District and Sessions Judge Tis Hazari Courts, Delhi & another, reported in (2014) 14 SCC 50 at paragraph nos.6, 7, 8, 9, 10, 11, 12 and 13 as under:
"6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.
7. In I.R. Coelho v. State of T.N., the doctrine of basic features has been explained by this Court as under:(SCC p.108, para 141) "141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III."
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P., M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.
9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the possibility of non-sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and even if the names of candidates are requisitioned from employment exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The -24- W.P.(S) No. 450 of 2004 Court further observed:(K.B.N. Visweshwara Rao case, SCC p. 218 para 6) "6. ... In addition, the appropriate department ... should call for the names by publication in the newspapers having wider circulation and also display on their office notice ... and employment news bulletins; and then consider the cases of all candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates (emphasis supplied) (See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)
10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela this Court held:
(SCC p. 490, para 12)
"12. ... The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made ... Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution ."
(emphasis supplied)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24) "(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and -25- W.P.(S) No. 450 of 2004 other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v Umadevi, observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity . "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete."
In view of above, it is crystal clear that Articles 14 and 16 of the Constitution provide for equality of opportunity.
23. Much has been argued by the learned counsel for the petitioner that the petitioner was working on the sanctioned post. This argument is of no help in view of the report of the High Power Committee constituted by the Vice Chancellor. Only two posts were sanctioned as has emerged from the report and on the recommendation, the petitioner was found to be a back-door entrant and that is established by way of the facts.
-26- W.P.(S) No. 450 of 2004
24. The prayer is also made in the writ petition to allow increment and other benefits to the petitioner. That cannot also be allowed considering that it has come in the finding of the Committee that the petitioner was appointed as back-door entrant and that report is not under challenge. It has been pointed out in the report and in the note of the principal, namely, Sri G.R. Diwan how the petitioner was appointed on the temporary post.
25. So far the judgments relied by the learned counsel for the petitioner in the case of Biresh Kumar v. Vinoba Bhave University, Uday Narain Choudhary v. State of Jharkhand and Triloki Nath Upadhya v. The Chairman, Bihar College Service Commission (supra) are concerned, these facts are not there and the dispute with regard to the recommendation and appointment was not proved and in light of that, those orders had been passed by the High Court. What has been discussed hereinabove, the facts of the present case are clearly different and, as such, those judgments are not helping the petitioner.
26. In view of the aforesaid facts, reasons, analysis and judicial pronouncements, no case of interference is made out. As such, this petition is dismissed.
27. Pending I.A., if any, is also dismissed.
(Sanjay Kumar Dwivedi, J.) Ajay/ A.F.R. -27- W.P.(S) No. 450 of 2004