Dhaneshwar Prasad vs Sidhu Kanhu Murmu University and Others

Rongon Mukhopadhyay, J—In this writ application, the petitioner has prayed for a direction upon the respondent No. 5 to grant permanent concurrence to the petitioner on the post of Lecturer in Economics in A.N. College, Dumka with effect from 11.02.1989 on the ground that the petitioner has been legally appointed on the said post and temporary concurrence has been granted by the Jharkhand Public Service Commission vide Memo No. 1008 dated 10.09.2010. It has further been prayed that consequent to grant of permanent concurrence to the petitioner on the post of Lecturer in Economics Department in A.N. College, Dumka to grant him all the benefits including revised pay and arrears of pay in revised pay scale as well as for up gradation of his post in accordance with his seniority in the said college.

Pursuant to an advertisement published in daily news Indian Nation on 14.08.1988, wherein applications were invited for appointment to the post of Lecturer in Economics Department in A.N. College, Dumka, the petitioner applied on 27.08.1988. He was selected and pursuant to an interview, the governing body decided to appoint the petitioner on the second post of Lecturer in Economic Department, to which the petitioner submitted his joining on 20.02.1989. Vide letter No. 569 dated 14.03.1991, two posts of Lecturer in Economics were sanctioned for A.N. College, Dumka and subsequently vide letters dated 5.1.2000 and 24.09.2003, two further posts of Lecturer in Economics were sanctioned for A.N. College, Dumka. The petitioner had sent an application on 9.12.2004 before the Jharkhand Public Service Commission, Ranchi for his confirmation on the post of Lecturer in A.N. College, Dumka but the same was not considered since the application was not sent by the petitioner through the Secretary of the governing body of the college. Subsequently, however, a letter was sent by the Governing Body of A.N. College, Dumka to JPSC for granting temporary confirmation and vide Memo No. 1008/Ranchi dated 10.09.2010, the petitioner was granted temporary concurrence in respect of his appointment on the post of Lecturer in Economics in A.N. College, Dumka. Representations were submitted by the petitioner on several occasions to grant him permanent concurrence on the said post but since no further action was taken by the concerned respondents, the petitioner preferred the present writ application.

Heard Mr. Prabhash Kumar, learned counsel for the petitioner, Mr. Anil Kumar, learned counsel for Respondent Nos. 1 and 2, Mr. Mithilesh Singh, learned counsel for respondent Nos. 3 and 4 and Mr. Anil Kumar Sinha, learned senior counsel for respondent No. 5(JPSC).

Mr. Prabhash Kumar, learned counsel for the petitioner, has submitted that prior to appointment of the petitioner by the Governing Body of the college, the necessary procedures were duly followed, as such the initial appointment of the petitioner was legal and valid. It has further been submitted that three posts of Lecturer in Economics in A.N. College, Dumka have been sanctioned by the State Government and there is obviously no reason as to why the permanent concurrence should not be granted to the post being held by the petitioner. It has further been submitted that temporary concurrence was granted vide Memo No. 1008/Ranchi dated 10.09.2010 to the petitioner on the post of Lecturer in Economics Department after considering the entire records, which were made available to the respondent No. 5 and as such the claim of the petitioner for permanent concurrence is all the more justified. It has also been submitted that respondent No. 5-JPSC, which has granted temporary concurrence to the petitioner, on the post, in which he is working, has the power to grant permanent concurrence also as letter No. 1008 dated 10.09.2010 itself is a request to the Registrar, Sidhu Kanhu Murmu University (Respondent No. 2) to send proper request for regular appointment so that action may be taken for appointment of the Lecturer, who possesses requisite qualification. It has, therefore, been submitted that there is no bar on the part of the respondent No. 5 to grant permanent concurrence to the petitioner on the post of Lecturer in Economics Department.

Mr. Anil Kumar Sinha, learned senior counsel for the respondent No. 5(JPSC), has opposed the prayer of the petitioner by submitting that the appointment of the petitioner was made on 11.02.1989 and admittedly there was no sanctioned post of Lecturer in Department of Economics available in A.N. College, Dumka. Whatever posts of Lecturer have been created in the Department of Economics by the State Government have been done after the appointment of the petitioner, as such the petitioner cannot claim any benefit with respect to the same.

It has been submitted that the appointment letter issued to the petitioner would suggest that the appointment was a conditional appointment inasmuch as the petitioner was directed to improve his result within three months from the date of appointment since the result on the basis of which, the petitioner was appointed, was unsatisfactory. It has, therefore, been submitted that the appointment secured by the petitioner was not a substantive appointment but a conditional appointment which in other words can be said to be an appointment in grace.

Learned senior counsel further submits that initial appointment of the petitioner was dehors the provisions of the Bihar State Universities Act, 1976 inasmuch as section 35(2) clearly denotes that after commencement of the Act, 1976, no college other than those mentioned in ''a & b'' of sub section (1) shall appoint any person on any post without the prior approval of the State Government. Furthering his argument, Mr. Sinha submits that Section 57A of the Jharkhand State Universities Act, 2000 lays down that appointment of teacher of affiliated Colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the Jharkhand Public Service Commission. It has, thus, been submitted that the process of appointment adopted by A.N. College, Dumka was just the opposite of what has been prescribed in the statute. So far as the contention raised by the learned counsel for the petitioner with respect to non requirement of consultation with the commission in terms of section 2(ii) of the Bihar College Service Commission Act, 1976 is concerned, the same stood deleted by virtue of the Bihar College Service Commission (Amendment) Act, 1996. It has also been submitted by the learned senior counsel for respondent No. 5 that so far as grant of temporary concurrence is concerned, the same was on account of ignorance of law on the part of the Commission and now since the respondent No. 5 is well aware of its powers as laid down by the statute, the question of permanent concurrence to the petitioner does not and cannot arise. As has been submitted by the learned senior counsel for the respondent No. 5 that no legal right of the petitioner has been violated and correspondingly there has been no failure on the part of respondent No. 5 to discharge its legal duties and therefore in such circumstances, the petitioner cannot seek for issuance of a writ of mandamus upon respondent No. 5. It has also been contended that the petitioner had himself forged the signature of the Registrar of University and the petitioner is, therefore, liable to be prosecuted both criminally as well as departmentally by the College.

Mr. Anil Kumar, learned counsel for respondent Nos. 1 and 2 and Mr. Mithlesh Singh, learned counsel for respondent Nos. 3 and 4, have virtually reiterated/adopted what has been submitted by Mr. Anil Kumar Sinha, learned senior counsel for the respondent No. 5.

Mr. Prabhash Kumar, learned counsel for the petitioner, in reply has strenuously argued that most of the submissions advanced by the learned senior counsel for the respondent No. 5 are not based on the records and shall, therefore, be omitted for coming to a just and proper decision in this case. It has also been submitted that the petitioner was not the architect of the letter issued from the office of the Registrar of University. It has also been submitted that since the claim of the petitioner was not being forwarded through proper channel and since the petitioner was not aware of the relevant rules, the petitioner had ventilated his grievances directly before the concerned officials. It has, therefore, been submitted that once the Commission has granted temporary concurrence, which must have been based on various criterias, the Commission as such cannot now go back from its earlier stance by denying permanent concurrence upon the post, on which the petitioner is discharging his duties.

The entire crux of the matter seems to revolve around the fact as to whether the JPSC has been delegated the power by virtue of the various statutes to grant permanent concurrence to the post being held by the petitioner. Before adverting to the said issue and even at the cost of repetition, it must be mentioned herein that three posts of Lecturer in Department of Economics of A.N. College, Dumka were sanctioned and created by the State Government after the initial appointment of the petitioner. It must also be borne in mind that temporary concurrence was given by the Commission to the post of the petitioner in 2010 itself which in the words of the petitioner was stepping stone towards the grant of permanent concurrence. The initial appointment of the petitioner as would appear from the letter addressed to the petitioner by the Secretary, A.N. College, Dumka dated 11.02.1989 reveals that the appointment of the petitioner as a Lecturer in the Department of Economics was purely on a temporary basis. It was also indicated therein that the petitioner must improve his result within three years since the result, on the basis of which, he has been appointed, was unsatisfactory. It has not been averred in any of the affidavits as to what was the marks obtained by the petitioner, which were considered to be unsatisfactory. It is not in dispute that sanction posts were created much after the appointment of the petitioner. The appointment letter dated 11.02.1989 virtually demonstrates that the appointment was indeed a conditional appointment, which was subject to improvement in the result of the petitioner within the next three years.

The Bihar State Universities Act, 1976 at section 35 lays down that notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such College as is established, maintained or governed by the State Government or as is established by a religious or linguistic minority shall create post for appointment without the prior sanction of the State Government. The College in which the petitioner is employed being an affiliated college and does not come within the purview of either (a) or (b) of section 35 it does not have the authority in terms of sub section (2) of Section 35 to appoint any person on any post without the prior approval of the State Government.

The Bihar College Service Commission Act, 1976 was enacted to establish a College Service Commission for the appointment of teachers of Affiliated Colleges and Intermediate Colleges in the State of Bihar and section 2 of sub section (11) reads as follows:--

"11. Notwithstanding anything contained in the preceding sub-sections, it shall not be necessary for the Governing Body to consult the Commission if the appointment to a post of teacher is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the college:

Provided that if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the college, the concurrence of the Commission shall be necessary in the absence of which the appointment shall be deemed to have been terminated at the end of six months".

The 1976 Act, therefore, did not make it mandatory on the part of the Governing Body to take prior approval/sanction of the Commission in appointing a teacher but the concurrence of the Commission shall be necessary if the period for which such teacher is appointed extends beyond six months. Sub section (2) of 1976 Act was subsequently deleted by virtue of the Bihar College Service Commission (Amendment) Act, 1996. The Jharkhand State Universities Act, 2000 at section 57A lays down that the appointment of teachers of affiliated college not maintained by the State Government shall be made by the Governing Body on the recommendation of the Jharkhand Public Service Commission.

Therefore, in none of the statutes, it is seen that recommendation/approval has to be made after the appointments are made by the Governing Body/Managing Committee/Syndicate. The recommendation has to first emanate from the Commission based on various criterias and then only the appointments have to be made by the Committee. In such circumstances, the grant of temporary concurrence is a myth. No doubt, it is true that ignorance of law cannot be an excuse but at the same time it has to be taken note of that realisation of its actual powers within the precincts of law has finally dawned upon the respondent -Commission.

Consequent to what has been discussed above, this writ application fails and the same is accordingly dismissed.