Shiv Narain Yadav vs State Of Bihar - 2001 Supreme(Pat) 199

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Pat) 199

PATNA HIGH COURT
Nagendra Rai and S.K.Katriar JJ.
Dr.Shiv Narain Yadav
Versus
State Of Bihar
Letters Patent Appeal No. 909 of 2000 ;
Decided On : MARCH 02, 2001

Headnote:Bihar State Universities Act, 1976-Section 57 A r/w Section 2(10) of Bihar College Service Commission Act, 1976-Only mode of appointment of the teachers of affiliated colleges is on the basis of the recommendation by the Commission-Statutory provision with regard to mode of appointment cannot be given go bye on the basis of a provision which is neither permissible under the Act in question nor has the statutory sanction in the sense of competency in the authority concerned to issue such instruction-Statute in question cannot be given effect to by circumventing the statutory provision specifically with regard to· appointment of teachers-Even if respondent (No.2) fulfils the criteria as per the statute, he is not entitled to regularization of his services, especially when he had appeared before the Commission but was not selected-Governing Body directed to consider names as recommended by the Commission. (Paras 14 and 15)
       CWJC No. 2773/1998-Set aside.
       Administrative Law-There is no requirement that there should be statutory rule for creating a post and making appointment thereon-Executive power of the State is co-extensive with the legislative power-u/Art. 162, State can create and fill up civil posts by issuing executive instructions in tune with Articles 14 and 16-But if the Act/Rules pertain to mode of appointment then that has to be made in accordance with that and the executive power can be exercised only to supplement the said provision and not to suppliant it. (Para 15)
       University Laws-Regularization-If a process of recruitment has been provided then regularization is not permissible by ignoring the said procedure unless it is shown that the provision regarding regularization has a support of law. (Para 16)
       Bihar Inter-University Board Act, 1981Section 5 r/w Section 57 A of Bihar State Universities Act, 1976 and Section 2(10) of Bihar College Service Commission Act, 1976-0bject of Board Act is only to bring a co-ordination among the different Universities-Section 5 does not authorize the Board to advise with regard to regularization of temporary teachers-The above said provisions do not empower the State Government/Chancellor to issue directions contrary to the provisions of Section 57 A or the Commission Act because State Government/Chancellor can issue direction only with regard to matters enumerated u/s 5(1) of the Board Act-· Provisions with regard to mode of appointment of lecturers is not covered by any .of the clauses of Section 5(1)-Providing a mode of regularization of ad-hoc teachers contrary to the statutory provisions cannot be termed as improvement and excellence in teaching standard of the University-However, regularization matters finally concluded not to be reviewed/recalled-Pending cases to be disposed of in accordance with law laid down presently. (Paras 15 and 16)

Judgment

Nagendra Rai, J.

1. This appeal under clause 10 of the Letters Patent of the Patna High Court is directed against the order dated 28.4.2000, passed in CWJC No. 2773 of 1998, by a learned Single Judge of this Court whereby he has held that unless the case of absorption of respondent No. 2, Madan Mandal, against the first post of lecturer in the faculty of Commerce in the Lohia Charan Singh College, Ambedkar Nagar Darbhanga is finally decided, the said post cannot be filled up on the basis of the recommendation of the Bihar College Service Commission, Patna (hereinafter referred to as the Commission). However, he has directed that fresh recommendations against the 2nd, 3rd and 4th vacant posts in the said faculty in the college be made.

2. The appellants, two in number, filed the writ petition giving rise to the. present appeal for a direction to the Governing Body of the aforesaid College and its office bearers to appoint them on the post of lecturer in commerce faculty as their names have been recommended by the Commission.

3. The factual matrix for disposal of the present appeal are that the College in question was established in 1979. After inspection, the Lalit Narayan Mithila University recommended its case to the State Government for affiliation. The Government granted interim affiliation, and granted permanent affiliation in 1990. By letter dated 21.10,1986 the Government sanctioned the posts of Principal and lecturers in different faculties in the said College without any financial liability. Two posts of lecturer were created in the faculty of Commerce, but later on two more posts were created and on the request made by the Governing Body of the College, an advertisement was issued for filling up of four posts of lecturer in the said subject by Advertisement No. 695 of 1989. The appellants, respondent No. 2 (Madan Mandal), and others applied and went through the selection process, and the Commission on 8.4.1997 recommended the names of four persons against the four vacant posts. The name of appellant No. 1 was recommended as the first nominee for the first post, the name of appellant No. 2 as the first nominee for the second post, and names of others have been recommended for third and fourth posts not relevant in the present context. The name of respondent No. 2 was not recommended against any post. The Governing Body thereafter did not make appointment which necessitated the filing of the writ petition before this Court.

4. The stand of the appellants is that, according to the statutory provision, the only mode of appointment to the post of teachers of affiliated colleges is on the basis of the recommendation of the Commission and as their names have been recommended, they should be appointed to the said post.

5. The stand of the Governing Body, on the other hand, is that respondent No. 2 (Madan Mandal) is working against the first post of lecturer in Commerce since 1981 and his case is pending for regularisation/ absorption in terms of the statutory provision and unless a final decision is taken for his regularisation/ absorption, the first post cannot be filled up on the basis of the recommendation of the Commission.

6. Respondent No. 2 (Madan Mandal) had appeared before the Commission as a candidate for appointment for filling up four posts, but he was not selected. In this appeal, the appellants have added him as party respondent no. 2 in view of the stand taken by the Governing Body. Respondent No. 2 has appeared and his stand is that he is 2nd class M. Com. An advertisement was issued in Indian Nation for filling up the first post in the faculty in question. The selection Board was constituted. He and others applied and he was selected and appointed by letter dated 6.10.1980, and in pursuance of which he joined on 6.1.1981. According to the statute issued by the State Government on the recommendation of the Bihar State University Board and approved by the Chancellor on 29.1.1986 he is entitled for regul

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2001 Supreme(Pat) 199

PATNA HIGH COURTNagendra Rai and S.K.Katriar JJ.Dr.Shiv Narain YadavVersusState Of BiharLetters Patent Appeal No. 909 of 2000 ;Decided On : MARCH 02, 2001

PATNA HIGH COURT
Nagendra Rai and S.K.Katriar JJ.
Dr.Shiv Narain Yadav
Versus
State Of Bihar
Letters Patent Appeal No. 909 of 2000 ;
Decided On : MARCH 02, 2001