AI Structured Summary
Not yet generated for this judgment
Judgment
S.N. Hussain, J.—This second appeal has been filed by defendant No. 3-appellant No. 3-sole appellant against the judgments and decree of both the learned courts below. The matter arises out of Title Suit No. 142 of 1972 (9/1987) filed by plaintiff-respondent-respondent No. 1 for declaration that letter dated 20.9.1972 sent by defendant No. 2 the Principal of M.V. College, Buxar on the basis of approval accorded by defendant No. 4 the Vice-Chancellor of Magadh University in favour of defendant No. 3 Sri Udai Narain Rai (appellant) was illegal, void and without jurisdiction and that the plaintiff being senior to defendant No. 3 had a right of automatic nomination to the Governing Body in preference to defendant No. 3 and also that approval accorded by the University to defendant No. 3 was illegal, void and without jurisdiction and for directing defendant No. 4 to accord approval to the services of plaintiff and for restraining defendant Nos. 1 and 2 (Convener and Principal of the College) from convening any meeting of Governing Body of the College without the plaintiff as a teacher representative.
The defendants contested the claim of the plaintiff by filing their respective written statements whereafter on the basis of pleadings of the parties, the learned trial court framed the following issues:-
(i) Has the plaintiff got valid cause of action for the suit?
(ii) Is the suit as framed maintainable?
(iii) Is the suit barred by time?
(iv) Is the suit barred by principle of res-judicata, waiver and acquiescence?
(v) Is the plaintiff a permanent lecturer appointed by the Governing Body of the College?
(vi) Is the appointment of defendant No. 3 legal and valid?
(vii) Is the plaintiff entitled to a decree as claimed for the approval of his service by defendant No. 4 from due date in place of defendant No. 3?
(viii) To what other relief or reliefs, if any, the plaintiff is entitled?
On the basis of aforesaid issues, evidence were led and arguments were made by the parties whereafter the learned 1st Additional Munsif, Buxar vide judgment and decree dated 16.8.1990 decreed the suit on contest with cost after arriving at the following findings:-
(a) The plaintiff Bharat Naraian Mishra is a permanent lecturer appointed by the Governing Body of the College and accordingly, his appointment should be approved by defendant No. 4 in place of defendant No. 3 from 13.6.1968 i.e. from the date of his permanent appointment in the Hindi Department of the College.
(b) The appointment of defendant No. 3 Udai Narain Rai in place of plaintiff by the illegally constituted Ad-hoc Committee was quite illegal and invalid.
(c) The plaintiff is entitled to a decree for approval of his service in place of defendant No. 3 by the Vice-Chancellor from 13.6.1968 which is the date of his permanent appointment
(d) There is no defect in the frame of the suit and the suit is maintainable.
(e) The plaintiff is entitled for his due seniority, promotion and arrears of salary, etc. since 13.6.1968, which is the date of his permanent appointment, as he had clearly suffered great loss due to fault of defendants, which cannot be compensated now by any other means.
Against the aforesaid judgment and decree of the learned trial court, defendant Nos. 2, 3 and 4 filed Title Appeal No. 29 of 1990 and the learned court of appeal below after considering the respective claims of the parties formulated only one point for deciding the appeal, which is as follows:-
(i) Whether the impugned judgment and decree passed by the learned court below is fit to be confirmed?
After considering the arguments of the parties on the said issue and after perusing the materials on record, the learned 1st Additional District Judge, Buxar dismissed the title appeal on contest with cost vide judgment and decree dated 27.7.1996 after arriving at the following findings:-
(a) Admittedly there was a vacancy of lecturer in permanent cadre in the Department of Hindi in M.V. College, Buxar for which the name of plaintiff and defendant No. 3 were recommended by the University Service Commission.
(b) The plaintiff was the only suitable candidate in view of the advertisement-Ext. 3
(c) Admittedly no show-cause or even prior information was given to the President or Secretary or Members of the Governing Body before its resolution, which was in clear violation of the rules prescribed in the Statutes of the University.
(d) It was the Governing Body who had a legal right to appoint a lecturer on the recommendation of the University Service Commission and not the Ad-hoc Committee, therefore, the appointment of defendant No. 3 by the Ad-hoc Committee was illegal.
(e) Admittedly the plaintiff was appointed by letter dated 13.6.1968 issued by the President of the Governing Body, which was later approved by the Governing Body and hence, the defect was removed.
(f) The plaintiff continued to work as lecturer in the Hindi Department of the College after his appointment on 13.6.1968 on the recommendation of University Service Commission and his termination order passed by Ad-hoc Committee on 28.7.1968 (Ext. 5) was never given effect to, which also shows that the Ad-hoc Committee was not effective.
(g) The documents produced by the defendants were created during the pendency of the suit and, therefore, they are of no avail for the adjudication of the dispute in the suit.
(h) The documents produced by the defendants themselves such Exts. S, T and U go to show that the plaintiff tried his best for approval of his appointment and service by the University but failed, hence, he had a good cause of action for the suit.
(i) At the time of appointment of plaintiff, the Governing Body was legally functioning and the Ad-hoc Committee constituted by the Syndicate was not functioning.
(j) The plaintiff having preferential qualification as per the advertisements, was the only suitable candidate for the appointment, whereas defendant No. 3 had no such preferential qualification.
(k) Order of termination of the plaintiff passed by the Ad-hoc Committee was never acted upon and he throughout worked in the College.
(I) Appointment of plaintiff by the Governing Body was legal and proper and the appointment of defendant No. 3 by illegally constituted Ad-hoc Committee was illegal.
Against the aforesaid judgments and decree of both the learned courts below only defendant No. 3, who was appellant No. 3 in the title appeal, filed the instant second appeal on 23.9.1996 and it was admitted on 27.3.1997 formulating the following substantial question of law:-
(i) Whether the judgment and decree of the learned lower appellate court is sustainable in law in view of Section 57A of the Bihar State Universities Act and also in view of the decision of Full Bench of this court reported in 1988 B.L.J.R. 1 (Rita Mishra and Others vs. Director, Primary Education Bihar)?
The aforesaid sole substantial question of law formulated in the instant second appeal is with respect to Section 57A of the Bihar State Universities Act, 1976, sub-section 1 of which reads as follows:-
"Appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teachers of such Colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the Statutes:
Provided that the Governing Bodies of the affiliated minority Colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teacher or take disciplinary action against them with the approval of the College Service Commission:
Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed.
The said substantial question of law also requires consideration of a decision of a Full Bench of this court in case of Rita Mishra and Others vs. Director, Primary Education Bihar, reported in 1988 B.L.J.R. 1 in which it has been held in paragraph 24 thereof that where the very letter of appointment is flagrantly violative of the statutory procedures prescribed for selection and appointment, the same would be illegal and there being no valid appointment in the eye of law, no consequential right to salary stricto sensu would arise. It was also held that a person holding a post de facto on the basis of any illegal letter of appointment, will not be entitled to any salary.
The claim of the appellant (defendant No. 3) is that in the year 1968 the college concerned sent requisition to the University Service Commission for recommending the names for appointment of lecturer in Hindi and in the meantime vide order dated 31.5.1968 the University suspended the Governing Body of the College and appointed Ad-hoc Committee, which started functioning from 1.6.1968. It is also claimed that on the requisition of the College, the University Service Commission on 11.6.1968 recommended two names as against one post of lecturer in Hindi in the College, in which defendant No. 3 was placed at Serial No. 1, whereas the plaintiff was placed at Serial No. 2 and in view of the said recommendation the Ad-hoc Committee duly appointed defendant No. 3 on 28.7.1968 on the sole vacant post of lecturer on permanent basis as he was the first choice of the Commission and also terminated the temporary service of plaintiff who was working since 1966 on purely temporary basis. It was also claimed on behalf of the appellant that in August, 1968 the appointment of appellant by the College was sent for approval to the University by the Managing Committee and in the meantime the plaintiff challenged the order of the Ad-hoc Committee dated 28.7.1968 regarding appointment of defendant No. 3 and termination of the plaintiff vide C.W.J.C. No. 614 of 1968, which was subsequently dismissed by this court as withdrawn on 13.8.1968. He further averred that thereafter the Ad-hoc Committee of the College was reconstituted by the University in June 1969 whereafter on 20.9.1972 defendant No. 3, who was continuously working in the College, was nominated by the Principal as teacher representative member of the Committee of the College.
Learned counsel for the appellant further stated that the appointment of defendant No. 3 was subject matter of C.W.J.C. No. 614 of 1968, which was dismissed as withdrawn without any liberty to file a suit and hence, in the instant suit the plaintiff had not challenged the appointment of defendant No. 3 (appellant) or the dismissal of the plaintiff (respondent No. 1), thus the reliefs granted by the learned courts below in that regard were beyond the reliefs sought by the plaintiff. It was also stated that the facts with regard to the writ case was suppressed by the plaintiff in his plaint, although he should have mentioned it. He also averred that the recommendation of the Commission was acted upon by the Ad-hoc Committee, which appointed first named person, namely, defendant No. 3, and hence there is no question of appointment of the plaintiff on the same post specially when the appointment of the Ad-hoc Committee in question was never challenged in any suit, either earlier or even in the instant suit, which was filed in the year 1972, i.e. about 5 years after the said appointment. In this regard he relied upon a decision of this court in the case of Dr. Sunil Kumar Jha Vs. The State of Bihar and Others in which it was held that first nominee of the Commission has to be appointed and even Vice-Chancellor has no jurisdiction to interfere with the recommendation of the Commission.
Learned counsel for the appellant also submitted that so far the nomination of teacher representative on 20.9.1972 is concerned, the instant suit filed in the year 1972 itself was not barred by limitation but the College having admittedly become a constituent unit of the University in 1976 the said relief became infructuous during the pendency of the suit. However, with respect to the other reliefs granted by the learned courts below it was claimed that they were with respect to appointment of defendant No. 3 and termination of plaintiff on 28.7.1968, although not claimed by the plaintiff, and are clearly barred by Article 58 of the Limitation Act. It was also claimed by the appellant that after accepting fresh appointment in the same College on 30.1.1977 and receiving salaries on that basis, the plaintiff waived all his earlier claims by giving undertaking vide Ext. A and Ext. B before the authorities concerned. It was also averred that no relief was sought by the plaintiff for payment of salary but that was also granted to the plaintiff with effect from 1968 till his retirement in 2001, by the learned courts below.
In the said circumstances, learned counsel for the appellant averred that the impugned judgments and decree of the learned courts below are in complete violation of Section 57A of the Bihar Universities Act according to which appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. In the instant circumstances, the appellant fulfilled all the required criterion for the post and was the first choice of the Commission but the President of the Governing Body of the College, who was none else than the father of plaintiff-respondent No. 1, issued letter of appointment of plaintiff violating and ignoring the recommendation of the Commission. He further submits that the aforesaid letter of appointment issued to respondent No. 1 being flagrantly violative of the ''statutory procedures prescribed for selection and appointment, the same is clearly illegal and is not valid appointment in the eye of law and hence respondent No. 1 is not entitled even to any consequential relief in view of the abovementioned decision of a Full Bench of this Court in case of Rita Mishra and Others (supra).
The claim of respondent No. 3, namely the Principal of M.V. College, Buxar is that the earlier Governing Body ceased to function after 31.5.1968 when Ad-hoc Committee was constituted and it continued functioning till 31.5.1969 and hence the appointment of defendant No. 3 (appellant) made by the Ad-hoc Committee on 28.7.1968 was absolutely legal and proper as it was on the basis of recommendation of the University Service Commission, which placed his name at the top of the list. He further submitted that the said Ad-hoc Committee having been constituted on 31.5.1968 and having continued till 31.5.1969 was never challenged by anyone nor it was ever found to be illegal and its validity remained intact. Much after 1.6.1969 the President of the previous Governing Body filed Title Suit No. 70 of 1969 challenging the subsequent Ad-hoc Committee, which was appointed by the University on 1.6.1969 and in that suit his injunction petition was dismissed whereafter orders were passed in miscellaneous appeal and civil revision, which were clearly not with respect to the Ad-hoc Committee, which functioned from 1.6.1968 to 31.5.1969 and in the meantime it had appointed the appellant on 28.7.1968 on the basis of which he continuously worked and even after the judgment and decree of the learned trial court he worked on the basis of order of stay passed by the learned court of appeal below. He also stated that respondent No. 1 (plaintiff) never worked in the college and his entire claim is on the basis of letter of appointment dated 13.6.1968 issued by his father, who was earlier the President of the Governing Body, which had ceased to function after 31.5.1968. It is averred that in any view of the matter the appointment has to be made by the Governing Body, which was admittedly not done and the appointment made by the father of the plaintiff cannot be held to be legal and valid in view of the decision of the Hon''ble Apex Court in case of District Basic Education Officer and Another Vs. Dhananjai Kumar Shukla and Another, In the said circumstances, respondent No. 3 fully supported the claim of the appellant, who was defendant No. 3 in the suit.
Learned counsel for respondent No. 2, namely Vice-Chancellor of Magadh University has made no submission as according to him the said University has got no concern left with the College, which has now become a constituent unit of Veer Kuwar Singh University (respondent No. 4). The claim of respondent Nos. 4 and 5, namely Veer Kuwar Singh University, Ara and its Vice-Chancellor is that the said College, namely M.V. College, Buxar (respondent No. 3) became its constituent unit from November, 1992 when the said University started functioning. It was also stated by learned counsel for respondent Nos. 4 and 5 that the Ad-hoc Committee constituted on 31.5.1968 started functioning on 1.6.1968 and made appointment of appellant on 28.7.1968 on the basis of concurrence by the University Service Commission dated 11.6.1968, which was also approved by the Vice-Chancellor of Magadh University (respondent No. 2) on 20.8.1971 (Ext. E) and since then the appellant (defendant No. 3) worked continuously and received salary in view of order of stay of the High Court dated 27.3.1997 till his retirement on 30.4.2008, whereas respondent No. 1 (plaintiff) neither worked for any period nor had received salary for the post concerned. In the said circumstances, respondent Nos. 4 and 5 also supported the contentions of the appellant.
On the other hand, the claim of respondent No. 1 (plaintiff) is that on 1.10.1966 he was appointed on temporary basis as a lecturer in Hindi on the sanctioned post by the duly constituted Governing Body of the College in question and was re-appointed on temporary basis on 23.11.1966 and 19.8.1967 and subsequently concurrence for such temporary appointment was given by the University Service Commission whereafter he continued functioning. It was also claimed that on 11.6.1968 the University Service Commission sent its recommendation (Ext. 4) for the permanent post of Lecturer in Hindi and in the said recommendation defendant No. 3 (appellant) was at Serial No. 1 whereas the plaintiff (respondent No. 1) was at Serial No. 2. Learned counsel for respondent No. 1 also claimed that he had preferential qualification due to his experience in teaching Hindi Honours Classes in the College since 1966 as required by the advertisement (Ext. 3), whereas admittedly defendant No. 3 had no such preferential qualification as he had got his master decree only in the year 1967 and had no teaching experience. It is stated that in the said circumstances the President of the Governing Body appointed the plaintiff on the permanent post vide letter dated 13.6.1968, which was approved by the Governing Body of the College on 11.1.1970 (Ext. 7/C) and due information was sent to the University and the Commission and the plaintiff continued functioning on the said permanent post till his retirement on 31.12.2001.
It was also claimed by learned counsel for respondent No. 1 that the University illegally suspended the Governing Body of the College vide order dated 31.5.1968 and appointed the. Ad-hoc Committee, which terminated the plaintiff and appointed defendant No. 3 vide order dated 28.7.1968, but since the appointment of Ad-hoc Committee was absolutely illegal, the President of the previous Governing Body challenged the order of the University dated 31.5.1968 in Title Suit No. 70 of 1969 and when the prayer for injunction was rejected in that suit, the President of the Managing Committee filed M.A. No. 92 of 1969, which was allowed by the learned Additional District Judge, Bhojpur vide order dated 20.12.1969 (Ext. 23) and passed an order of injunction against the defendants of that suit holding prima facie that the Governing Body never ceased to function and was continuously functioning whereas the constitution of Ad-hoc Committee was illegal. It was averred on behalf of respondent No. 1 that against the said order passed in miscellaneous appeal the University filed Civil Revision No. 62 of 1970, which was disposed of vide consent order dated 16.2.1970 (Ext. 23/A) directing the University to fill up existing vacancies in the Governing Body by 31.3.1970 and restrained the Ad-hoc Committee from making any permanent appointment. Hence, he submits that the. order passed in the miscellaneous appeal continued to operate with certain modification as per the High Court''s order. It is also submitted that during the pendency of the suit, the College became a constituent unit of the University in the year 1976 due to which the said Title Suit No. 70 of 1969 became infructuous and was dismissed on that score in the year 1977 without any consideration on merits.
Learned counsel for respondent No. 1 averred that although he had filed C.W.J.C. No. 614 of 1968 against the order of his termination dated 28.7.1968 but the said writ petition was not decided on merit and it was simply withdrawn by the plaintiff on 13.8.1968, hence there being no consideration on merits, the question of res judicata will not be attracted and that such type of dismissal of a writ petition cannot be compared with a suit having been withdrawn without any permission to file a fresh suit because the right to file a suit is a statutory right on the basis of specific provisions of the Code of Civil Procedure, and hence the order passed in the writ case did not create any bar in the filing of the suit. In this regard, he relies on the aforementioned decision of the Full Bench of this court in case of Rita Mishra and Others (supra), in paragraph-31 of which it has been held that where the basic and material facts are categorically controverted and traversed, the exercise of the writ jurisdiction would be inapt and doubly so no mandamus can possibly issue on such a slippery base and the petitioners must be relegated to their ordinary remedies by way of civil suits. He thus stated that the said decision of the Full Bench is not in favour of the appellant (defendant No. 3), rather it is in favour of respondent No. 1 (plaintiff). He also relies upon a decision of the Hon''ble Apex Court in case of Pujari Bai Vs. Madan Gopal, in paragraph 24 of which it was held that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy.
Learned counsel for respondent No. I also stated that admittedly the plaintiff had preferential qualification and had been appointed by the Governing Body, which was found by both the learned courts below to be continuously functioning and having never ceased to function and on its order plaintiff was working on the permanent post of lecturer in Hindi continuously from 1967 on the basis of the concurrence of the Commission. He claimed that it was also found that the Governing Body of the college never gave charge to any Ad-hoc Committee, which thus had no authority to terminate the services of respondent No. 1 or to appoint the appellant, who had never worked. He thus averred that in view of the aforesaid concurrent findings of facts no substantial question of law is attracted in the instant second appeal. It was also asserted that the appellant cannot argue beyond the substantial question of law framed at the admission stage and that the appellant had miserably failed to record any reason for formulating any other substantial question of law and hence the instant second appeal has to be decided only on the substantial question of law, which has already been formulated at the admission stage. In this regard he relied upon a decision of the Hon''ble Apex Court in case d Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, and also on another decision of the Hon''ble Apex Court in case of Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor,
Learned counsel for respondent No. 1 further submitted that no doubt the President of the Governing Body at the relevant time was the father of respondent No. 1 (plaintiff) but the plaintiff was appointed not on mat ground, rather on the basis that only he had the preferential qualification of experience in teaching Hindi Honours Classes and had also been recommended by the Commission for being appointed and hence the letter of plaintiff''s appointment dated 13.6.1968 was issued by the said President of the Governing Body merely to fulfill the formalities and the said appointment having subsequently been approved by the Governing Body, there cannot be any assumption of illegality or bias. He also stated that respondent No. 3, namely the Principal of the College had wrongly relied upon the decision of Hon''ble Apex Court in case of District Basic Education Officer (supra), which was on the basis of Rule-VI of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Services of Teachers) Rules, 1978 in which the issuance of letter of appointment by a father was prohibited as would be apparent from the Rule itself detailed in paragraph-2 of the said decision, which is applicable in the State of Uttar Pradesh but here in the instant case no such prohibition is made by any rule. regulation, etc. applicable in the State of Bihar and in any view of the matter the facts of the two cases are completely different and hence no reliance can be placed on the said decision of the Hon''ble Apex Court in the instant case.
From the pleadings of the parties, the materials on record, the judgments and decree of the learned courts below as well as the abovementioned arguments raised by learned counsel for the parties, it is not in dispute that the College in question, namely M.V. College. Buxar (respondent No. 3) was earlier an affiliated College of the Magadh University (respondent No. 2) and became a constituent unit of that University in the year 1976 and subsequently when Veer Kuwar Singh University, Ara (respondent No. 4) was formed the said College became a constituent unit of that University in November, 1992.
It is also not in dispute that in the year 1968 there was a vacancy on the permanent post of lecturer in the Department of Hindi in the said College, for filling up which the then Governing Body of the College sent requisition to the University Service Commission for recommendation of names for the said post and after all due process of law, the University Service Commission vide letter dated 11.5.1968 (Ext. 4) sent its recommendation to the College, in which defendant No. 3 (appellant) was placed at Serial No. 1 and the plaintiff (respondent No. 1) was placed at Serial No. 2. This recommendation of the Commission was never challenged either by the plaintiff or by anyone else.
It is also not in dispute that the University issued letter dated 31.5.1968 (Exts. D&H) suspending the Governing Body of the College and appointing Adhoc Committee for managing the affairs of the College. However, the dispute raised by the plaintiff is that the said order of the University was never acted upon, the Ad-hoc Committee never became functional and the previous Governing Body continued to function and manage the affairs of the College and vide letter dated 13.6.1968 (Ext. 2/C) the President of the Governing Body appointed the plaintiff on the aforesaid permanent post, which was confirmed by the Governing Body on 11.1.1970 (Ext. 7/C) and since then he functioned on the said post till his retirement in December, 2001. This claim of the plaintiff is contested by defendant No. 3, who has claimed that the order of the University dated 31.5.1968 became operative on the same date and the earlier Governing Body stopped functioning, whereas the Ad-hoc Committee appointed by that order started functioning from 1.6.1968 and appointed defendant No. 3 on the aforesaid permanent post vide letter dated 28.7.1968 (Ext. J) as he was the first choice of the University Service Commission and terminated the temporary service of the plaintiff with effect from 11.5.1968 as he was placed at Serial No. 2 in the recommendation of the Commission. He further claimed that after his appointment defendant No. 3 continuously worked on the said permanent post recognized and approved by the Syndicate and the University in 1971 (Ext. F) and 1972 (Ext. U) respectively and he duly received salary from the University till his retirement in April, 2008.
In view of the aforesaid stands of the parties, two questions were to be decided: Firstly as to whether the order of the University dated 31.5.1968 was acted upon and secondly as to which of the two appointments, namely appointment of the plaintiff or the appointment of defendant No. 3 was legal, valid and effective.
So far the first question regarding effectiveness of order of the University dated 31.5.1968 is concerned, it is quite apparent from the records of the case that it was never challenged and the said order remained effective till 31.5.1969 when another Ad-hoc Committee was appointed by the University for the said College. This fact is apparent from Title Suit No. 70 of 1969, which was filed by the President of the earlier Governing Body challenging the second Ad-hoc Committee appointed by the University in June 1969. In the said suit interlocutory application filed by the President of the previous Governing Body was rejected by the trial court, which was challenged in M.A. No. 92 of 1969. The said miscellaneous appeal was allowed by the Additional District Judge, Bhojpur vide order dated 20.12.1969 (Ext. 23) by which an ad-interim order of injunction was passed. The said order was challenged by the University in Civil Revision No. 62 of 1970, which was disposed of by a consent order dated 16.2.1970 (Ext. 23/ A) directing the University to fill up existing vacancies in the Governing Body by 31.3.1970 and restrained the Ad-hoc Committee from making any permanent appointment. However, during the pendency of the suit the College became a constituent unit of the University in the year 1976 whereafter the suit became infructuous and was dismissed on that score without any decision on merit. But from the aforesaid facts and circumstances, specially by the order of this court dated 16.2.1970 passed in Civil Revision No. 62 of 1970, it is quite apparent that the earlier Governing Body was not functioning and it was the Ad-hoc Committee which was functioning and managing the College and was thus restrained from making any permanent appointment. The said order of this court was not on contest, rather it was passed on the consent of all the parties including the President of the previous Governing Body himself, which amounted to his admission that it was the Ad-hoc Committee, which was functioning and not the Governing Body. Furthermore the records of the College also showed that the earlier Ad-hoc Committee started functioning from 1.6.1968 and the second Ad-hoc Committee started functioning from 1.6.1969, which fact is also fully supported by the authorities of the College as well as the authorities of the University, whereas on the other hand, the plaintiff had miserably failed to prove by any valid and reliable material that the said order of the University dated 31.5.1968 was never acted upon.
So far the second question with regard to the legality or otherwise of the appointment of the plaintiff is concerned, it is an admitted fact that the University Service Commission after adopting all the procedures prescribed in law sent its recommendation on 11.5.1968 in which defendant No. 3 (appellant) was placed at Serial No. 1 and plaintiff (respondent No. 1) was placed at Serial No. 2 for filling up the single vacant post of lecturer in Department of Hindi of the College. The plaintiff never challenged the said recommendation of the Commission nor he tried to raise any issue before any authority that the plaintiff should have been placed at Serial No. 1 as he had the preferential qualification of having experience in teaching honours classes and was a better candidate than defendant No. 3 as per the advertisement. In any view of the matter teaching experience was not made a condition precedent for the said appointment as would be apparent from the advertisement (Ext. 3) itself and there can be many other points of consideration for making such a recommendation on the basis of written test, interview, etc. and defendant No. 3 admittedly having the qualifications required for the post, the Commission in its wisdom had chosen defendant No. 3 as its first choice for the post. This recommendation having never been challenged by anyone, the Ad-hoc Committee which started functioning from 1.6.1968 was quite justified in appointing defendant No. 3 on the permanent post of lecturer being the first choice of the Commission.
A bare reading of Section 2(9) and Section 2(10) of the Bihar College Service Commission Act, 1976, shows that names of two persons arranged in order of preference and considered by the Commission has to be recommended. The law is well settled in this regard that in case of names of more than one person having been recommended for one post by the Commission, the person who is the first choice of the Commission has to be appointed. If any appointment is made of any person other than the first choice of the Commission than a long procedure has to be followed for the said purpose after assigning the specific reasons for the same. No such procedure having been adopted by the authorities concerned nor any specific reason having been assigned by them, there was no occasion for appointment of any person other than the person, who was the first choice of the Commission and was having the requisite qualification for that post. Reference in this regard may be made to the decisions of the Hon''ble Apex Court in case of Jatinder Kumar vs. State of Punjab, reported in AIR 1991 SC 1850, in case of State of Bihar Vs. Kaushal Kishore Singh and others, in case of Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255 in case of State of Bihar vs. Kaushal Kishore Singh & Ors., reported in 1999(1) P.L.J.R. (SC)5, in case of Triloki Nath Upadhya Vs. The Chairman, Bihar College Service Commission and Others, in case of Or. Sunil Kumar Jha vs. The State of Bihar & Ors., reported in 2002(4) P.L.J.R. 631 and in case of Manjula Kumari Vs. Dr. Sunil Kumar Jha and Others,
In the said circumstances neither the previous Governing Body of the College had any authority to alter the recommendation of the Commission nor it was functioning when the order of appointment dated 13.6.1968 was passed by the President of the Governing Body, namely Ma-harishi Khakhi Baba appointing his son, namely the plaintiff on the said post. According to the provisions of law the appointment is to be made by the Governing Body, which is functioning but here in the instant case the Governing Body had ceased to function from 1.6.1968 and in any view of the matter appointment of the plaintiff was not even made by the Governing Body, rather it was made only by its President named above, which is apparent from the said letter of appointment dated 13.6.1968 (Ext. 2/C) itself. It will be interesting to note that the plaintiff claimed that the said letter of appointment was approved by the Governing Body more than one and a half years thereafter on 11.1.1970 (Ext. 7/C) but by the consent order dated 16.2.1970 (Ext. 23/A) passed by this court in Civil Revision No. 62 of 1970 it is quite apparent that it was admitted that the new Ad-hoc Committee was functioning and managing the College and not the previous Governing Body. From the materials on record, it is also quite apparent that the plaintiff had miserably failed to prove by any valid or reliable material that his appointment was ever approved by the University or he worked after the said appointment or he regularly received his salaries and emoluments from the University till his retirement.
The aforesaid aspects of the matter have been completely ignored by the learned courts below, although it was vital for the full and proper adjudication of the dispute between the parties. Furthermore, the plaintiff challenged the termination of his service and the appointment of defendant No. 3 by the Ad-hoc Committee vide order dated 28.7.1968 (Ext.J) in C.W.J.C. No. 614 of 1968, but the said writ petition was dismissed as withdrawn by the plaintiff himself on 13.8.1968. Thereafter the plaintiff never challenged either his own termination or the order of appointment of defendant No. 3 before any court of law. Even in the title suit no such relief was sought, rather merely the following reliefs were sought by the plaintiff (respondent No. 1 ):-
(i) That it be declared that letter of defendant No. 2 (Principal, M.V. College, Buxar) dated 20.9.1972 is illegal, void and against the nature of justice and without jurisdiction.
(ii) That plaintiff is at least senior to defendant No. 3 and hence he has a right of automatic nomination to the Governing Body in preference to defendant No. 3.
(iii) That the approval accorded to defendant No. 3 by defendant No. 4 (Vice-Chancellor, Magadh University) is illegal, void and without jurisdiction and hence defendant No. 4 be directed to accord approval to the services of the plaintiff.
(iv) That defendant No. 1 (Convener, M.V. College, Buxar) and defendant No. 2 (Principal, M.V. College. Buxar) be permanently restrained from convening any meeting of the Governing Body without plaintiff as T.R (teachers representative).
(v) The cost of the suit and any other relief deemed fit by the court be awarded to the plaintiff.
The impugned letter dated 20.9.1972 was issued by the Principal of the College merely nominating defendant No. 3 as teacher representative member of the Governing Body of the College and all the reliefs except relief No. (iii) were with respect to the nomination of defendant No. 3 as a teacher representative member of the Governing Body. These reliefs cannot be legally granted to the plaintiff on two grounds. Firstly; because during the pendency of Title Suit No. 142 of 1972 the College became a constituent unit of the University in the year 1976 and hence neither any Governing Body nor any Managing Committee remained in which the nomination of any teachers representative member was required. Secondly; the nomination of defendant No. 3 vide letter of the Principal dated 20.9.1972 cannot be held to be illegal, as the plaintiff''s temporary service was terminated as far back as on 28.7.1968 with effect from 11.5.1968 on the basis of the recommendation of the Commission dated 11.5.1968, which was never challenged by the plaintiff except in C.W.J.C. No. 614 of 1968, which was dismissed as withdrawn and much thereafter on 13.9.1976 (Ext. 20) the plaintiff himself applied for fresh appointment and he was appointed on 13.1.1977 (Ext. G) in the College and he joined afresh on 15.1.1977 (Ext. B) and gave a written undertaking before the Vice-Chancellor on 17.1.1977 (Ext. O) that he will not take any step in the suit. In the said circumstances, it is quite apparent that from 1968 till 1977 the plaintiff had not been working in the college. There is no valid and reliable material to show that the plaintiff was working or was receiving salary during the said period. On the other hand, defendant No. 3 had been able to prove by valid materials that he had been functioning from the date of his appointment in 1968 till his superannuation in 2008 and throughout received his salary, was granted promotion, was granted second promotion and subsequently was superannuated in the year 2008, which facts are also apparent from the record of his service in the University.
Apart from the aforesaid matter the plaintiff completely failed to prove that during the abovementioned period he had ever worked or had received any salary from the University or had been granted any promotion or there was any letter from the authorities accepting his service and intimating his superannuation in 2001. The papers produced by the plaintiff including Exts. 6, 7 series, 17 and 21 series could not validly prove the same and are also not reliable and trustworthy as neither their creators came to prove them nor they are sustainable in view of the materials discussed in the above paragraphs as well as the specific stand taken by the authorities of the College and the University. The facts and materials discussed above clearly proved that the father of the plaintiff being the President of the previous Governing Body of the College was an influential person and was bent upon getting his son, namely the plaintiff appointed in the College in any manner whatsoever and even by creating illegal and self-serving papers including the letter of appointment dated 13.6.1968 (Ext. 2/C) issued under his own signature as President of the Governing Body of the College which had ceased to function from 1.6.1968 as per the order of the University (Ext. D&H) and in any view of the matter the President of Governing Body had no authority to issue such letter as per Rules 5(b) and 6 of Chapter 13 of the Statutes. Hence the said letter of appointment was rightly never given effect to. In the said circumstances the plaintiff was clearly not entitled to any of the aforesaid reliefs granted by the learned courts below.
However, so far relief No. (iii) is concerned, it is quite apparent from the aforesaid evidence and findings that the University had granted approval to the appointment and service of defendant No. 3 on the basis of recommendation of the Commission, his appointment by the Adhoc Committee formed by the University itself and his regular functioning in the College. Furthermore defendant No. 3 was able to prove by valid materials supported by the authorities of the College and the University that he had been regularly functioning from 1968 till his superannuation in 2008 and it is also apparent from the record of his service in the University that he duly received his salary, was granted promotion and second promotion and was subsequently superannuated in 2008. Even during the pendency of title appeal and second appeal the University continued to pay salary and emoluments to defendant No. 3 (appellant) on the basis of interim orders passed in the said appeals.
The said facts having never been challenged by the plaintiff before any court of law except C.W.J.C. No. 614 of 1968, which was dismissed as withdrawn on 13.8.1968, there was no occasion at all to set aside the approval accorded by the University to the appointment and functioning of defendant No. 3. On the other hand, temporary service of the plaintiff having been terminated by the Ad-hoc Committee formed by the University on 28.7.1968 on the basis of recommendation of the Commission and there being no valid and legal material whatsoever to show that the plaintiff functioned in the College thereafter, there was no occasion for the University to accord approval to the non-existing service of the plaintiff. Furthermore, admittedly the earlier service of the plaintiff being purely temporary, there was no requirement of any notice to him before his aforesaid removal.
In the said circumstances, the plaintiff being clearly not entitled to any relief claimed by him in the plaint, it was incumbent upon the learned courts below to dismiss the suit and claim of the plaintiff. Furthermore, the findings of the trial court and the lower appellate court are not with reference to the reliefs claimed by the plaintiff in his plaint and hence they are clearly absurd and non-sustainable in law. The plaintiff having not sought any relief challenging the appointment of defendant No. 3 or challenging his own termination, there was no occasion for the learned courts below to. go beyond the reliefs sought by the plaintiff and give uncalled for findings with respect to the appointment of defendant No. 3 and the termination of plaintiff, and that too against the materials on record and specific provisions of law.
Thus the impugned judgments and decree of the learned courts below are not sustainable in law in view of the aforesaid findings and evidence and also in view of Section 57A of the Bihar Universities Act and also in view of the decision of a Full Bench of this court in case of Rita Mishra and Others (supra) as neither the plaintiff had claimed any relief against his termination or against the appointment of defendant No. 3 nor he was entitled to get any such relief as granted by the learned courts below with regard to his termination or with regard to the appointment of defendant No. 3, which was done by the authorities concerned strictly in accordance with the provisions of law specifically Section 57A of the Bihar Universities Act, 1976. Furthermore, the very letter of appointment of the plaintiff being flagrantly violative of the statutory procedures prescribed for selection and appointment including Rules 5(b) and 6 of Chapter 13 of the Statutes, the same is clearly illegal and there being no valid appointment in the eye of law, no consequential right to salary etc. in its strict sense would arise. In such a case even a person holding a post de facto on the basis of an illegal letter of appointment is not entitled to any salary as has been held by a Full Bench of this court in case of Rita Mishra and Others (supra). Accordingly, this second appeal is allowed on contest, the judgments and decree of the learned courts below are hereby set aside and the claim and suit of the plaintiff-respondent No. 1 are dismissed. However, in the circumstances mentioned above there would be no order as to cost.