Rajendra Prasad vs The Chancellor, Magadh University, and Others

Lalit Mohan Sharma and Anand Pd. Sinha, JJ.—The petitioner and the respondent No. 4 were rival candidates for being appointed as the Principal of Sardar Patel Memorial College, Biharsharif (hereinafter referred to as "the College"), and the respondent No. 4 was appointed by the order contained in Annexure 13, which is challenged in the present writ application as illegal. It is said that the appointment was made in pursuance of a general direction given by the Chancellor in his letter Annexure 19. There is also a prayer for quashing the said direction. According to the case in the writ application, the petitioner was appointed as the Principal of the College in 1974 by the Governing Body and the College Service Commission accorded concurrence in 1977 as per Annexure 4 to the petitioner''s appointment for a period of three months. Steps were taken for permanent appointment to the post and an advertisement was issued by the College Service Commission. Both the petitioner and respondent No. 4 were applicants and their cases were considered by the College Service Commission (respondent No. 3). The Commission did not recommend the name of the petitioner. The respondent No. 4 was recommended as the first nominee and another candidate as the second choice, but the Governing Body by a resolution dated 16.3.1980 (Annexure-8) held that they did not fulfil all the conditions of the advertisement and so could not be appointed. The Commission was requested to reconsider the matter. The Commission wrote back that the post would be re-advertised. In the meantime the Governing Body resolved that the petitioner who was working as the principal since 1974 should be appointed on permanent basis and a request was accordingly made to the Commission. While the suggestion was under the active consideration of the Commission (as stated by it in Annexure-12), the college became a constituent college of the Magadh University. On the 19th of February, 1981, the Chancellor issued a general order as contained in Annexure-19 directing the authorities concerned to act upon the recommendation of the Commission recorded up to the 30th November, 1980, and to make appointments. The respondent No. 4 also had in the meantime moved the Chancellor by filing a representation which was pending. In March, 1981, the Chancellor called for a report in the matter of the respondent''s representation. On the 20th of April, 1981, the impugned appointment of respondent No. 4 was made by Annexure-13. The petitioner then filed a representation before the Chancellor unsuccessfully.

In support of the petitioner''s case, Mr. Mukhopadhya contended that in view of sub-section 3(a) of Section 57A of the Bihar State Universities Act, 1976, the recommendation of the Commission was valid only till the date on which the college was made a constituent college. The recommendation, therefore, was not in existence in the eye of law for the University to act on it. His second point is that in view of the provisions of section 57A(2)(c) of the Bihar State Universities Act, 1976, the recommendation of the Commission was valid only for a period of one year from the date on which it was made and since the University has appointed the respondent No. 4 after this period, the appointment is illegal. Reliance has also been placed on section 2(9) of the Bihar State University Service Commission Act, 1976.

It is the admitted position that no appointment of a college teacher can be made unless a recommendation by the Commission is available for consideration. The question which arises, therefore, is whether the Commission''s recommendation was valid in the eye of law, on the basis of which the impugned appointment could have been made.

Section 57A was inserted in the Bihar State Universities Act, 1976, by an amendment in 1980. The original amending statute was in Hindi language. The English version of section 57A(3)(a) is in the following terms:

College Service Commission shall give its consent/recommendation for the appointment, dismissal or termination etc. of teachers of affiliated colleges till the date of their being made constituent colleges. Its consent/recommendation shall be deemed valid only till that date.

The language of the sub section, quoted above, is apparently in favour of the petitioner. Mr. Additional Advocate General appearing for the University placed before us the original Hindi text quoted below and submitted that the English translation is not accurate.

He appears to be right. Properly translated, the provision states that the recommendation received till before the College becomes a constituent college shall be deemed to be valid. The intention of the legislature must be gathered from the language which has been used by it. Since the Amending Act was admittedly in Hindi, the English translation though official, cannot override the Hindi text. The English version is the interpretation of the person entrusted with the risk of translation. It cannot be equated with the original text. In that view we hold that the English translation, quoted above, and relied on by the petitioner cannot be accepted as giving the correct meaning of the sub-section. In accordance with the original Hindi text, it must be held that the recommendation which was received by the college before it became a constituent college remained valid. This interpretation appears to be consistent with the provisions of subsection (3)(b) which (according to the English translation which is not challenged by any party) is in the following terms:

If an affiliated college becomes a constituent college of a University by the time the recommendation of the College Service Commission is received, the Syndicate, shall take action in accordance with sub-section (4) of section 57 of the said Act, as if the recommendation has been made by the Selection Committee.

If the recommendation of the Commission received later than the college becoming constituent has to be acted upon by the University for the purpose of appointment under sub-section (4), it is not likely that the legislature intended that the recommendation received earlier would be completely ignored. We, therefore, hold that the first point urged on behalf of the petitioner has no substance.

For appreciating the other question urged by Mr. Mukhopadhya, it has to be remembered that the recommendation of the Commission was made in February, 1980, and appointment of the respondent No. 4 was in April, 1981, that is, after a period of one year. Clause (c) of section 57A(2) reads as follows:

The recommendations of the Commission shall remain valid for a period of one year from the date on which they are made.

Section 2(9) of the Bihar University Service Commission Act, 1976, under which the respondent Commission was established, is also to that effect. It reads as follows:

The Commission shall recommend for appointment to every cost of teacher, names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. The recommendation shall be valid for one year from the date of the recommendation by the Commission.

The language used in the above mentioned provision is imperative in nature and the recommendation must, therefore, be held to lose its legal efficacy on the expiry of the period of one year. In that view, the impugned appointment having been made without a valid recommendation must be held to be illegal.

Mr. Basudeo Prasad, appearing for the respondent No. 4, contended that in view of the sub-section (3)(a) of section 57A mentioned above, it must be held that the recommendation did not lapse on the expiry of one year. The learned counsel argued that the sub-section (3)(a) is by way of an exception to the general rule in regard to the recommendation remaining valid for a period of one year only. Where a college is made a constituent college, the special provision is to be applied. The question which arises is, whether sub-section (3)(a) provides a special rule in this regard so as to prevail over the general rule. An examination of its language shows that its sole purpose is to protect the recommendation from getting expired on account of the college being a constituent college. The recommendation continues to be subject to the other conditions as before. The sub-section does not deal with the period of its validity and there is no inconsistency between this provision and section 57A(2)(c) and section 2(9) of the Bihar University Service Commission Act. It will further be observed that the provisions limiting the life of the recommendation to one year is of universal application. It is of little consequence as to whether a college is affiliated college, the management being in the hands of the Governing Body, or it is a constituent college. We are, therefore, of the view that sub-section (3)(a) can not be treated as an exception to sub-section (2)(c). It follows that after a period of one year from February 1980, the life of the Commission''s recommendation expired and in the eye of law, it was not in existence for the purpose of the impugned appointment.

It was argued by Mr. Basudeo Prasad that since the decision by the Chancellor as contained in Annexure 19 was taken on 19.2.1981, that is, just within one year, the appointment of the respondent No. 4 should be upheld as valid. We are afraid, it is not possible to save the appointment on this basis. From Annexures 5 and 6 and the other materials available on the record, it is established beyond doubt that the representation of respondent No. 4 was pending till at least the 25th of March, 1981. The letter Annexure 19 did not dispose of the representation of respondent No. 4 and did not take any decision in regard to his appointment. It was laying down a general policy. The decision to appoint respondent No. 4 was taken after the expiry of one year by the impugned order in Annexure 13 dated the 20th of April, 1981. In the circumstances, the appointment of respondent No. 4 has to be struck down as illegal.

Mr. Prasad lastly urged that since the Commission did not recommend the petitioner for appointment, he has no locus standi to maintain this application and the appointment of respondent No. 4 should not be quashed at his instance. There is no force in this argument. The petitioner was working as the principal since 1974 and his case was under active consideration of the Commission when the College became a constituent college. He is, therefore, aggrieved by the impugned appointment (Annexure 13) so as to maintain the writ petition. Further, after the expiry of one year from the date of recommendation, the Commission has to reassess the relative merits of all the candidates and the petitioner thus gets another chance. In the result, the order of appointment of the respondent No. 4 as the Principal of the college under Annexure 13 is quashed. The authority concerned may now take fresh steps for appointment in accordance with law. The writ application is accordingly allowed but without costs.