Reena Kumari & Ors. v. The State of Bihar

Judgment

Mr. Prabhakar Jha, GP-27 Date :08-10-2024 Heard Mr. Tej Bahadur Singh, learned senior counsel, aptly Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 assisted by Mr. Prince Kumar Mishra, learned Advocate, for the petitioners, Mr. Y.V. Giri, learned senior counsel assisted by Ms. Shristi Singh, learned Advocate, for the respondent nos.7 to 11, Mr. Abhinav Srivastava, learned Advocate, for the Mirza Ghalib College, Gaya, Mr. Sidhartha Prasad, learned Advocate, for the Magadh University and Mr. Prabhakar Jha, learned GA-27, for the State.

2. By filing the present petition under Article-226 of the Constitution of India, the petitioners pray for the following relief/reliefs: (i) For issuance of a writ in the nature of Certiorari, quashing the Advertisement published in the Hindi daily Hindustan dated 06/10/2019 issued by Secretary, Governing Body, Mirza Ghalib College, Gaya, whereby and whereunder it has been informed that the advertisement issued in March 2018 and for which interview were held in February 2019 and for which panel was prepared – have been cancelled by the Governing Body of the College, without specifying any reason as to what were the compelling circumstances which warranted cancellation of the entire selection process, in which petitioners have succeeded. Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 (ii) For issuance of writ in the nature of Certiorari, quashing the Advertisement published in the Hindi daily Hindustan on 06/10/2019 for recruitment to the post of Assistant Professor in the Departments of Persian & Chemistry in Mirza Ghalib College, Gaya, whereby and whereunder fresh applications have been invited for appointment by cancelling the earlier Advertisement issued in March 2018 and for which interview were held in February 2019, in completely arbitrary and illegal manner and for which no justifiable reason much less legally sustainable reasons have been provided. (iii) For issuance of appropriate writ in nature of mandamus or any other order, holding and declaring that the entire selection process has been conducted in the breach of Section 57-B of Bihar State University Act,1976 as quorum required for selection committee was totally missing, rendering the constitution of interview board, illegal and arbitrary. (iv) For issuance of writ in the nature of mandamus directing and commanding upon the Secretary, Governing Body, Mirza Ghalib College, Gaya to produce the minute of second round of selection process, which has been kept by him in Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 iron chest and merit list of same was not published and after such production be quashed as same has been prepared ignoring the experience candidates like petitioner’s. (v) For issuance of writ in the nature of mandamus directing and commanding the respondent authorities, particularly the Secretary, Governing Body, Mirza Ghalib College, Gaya to implement the result of Advertisement issued in March 2018 and for which interview were held in February 2019 forthwith– as the selected candidates have committed no fault and they fulfill all the requirements as per prevailing UGC norms and any delay in their appointment would be per se illegal. (vi) For issuance of writ in the nature of mandamus, directing upon the Secretary, Governing Body, Mirza Ghalib College, Gaya to produce the minutes of Constitution of selection committee as per section 57 B of the Bihar State University Act. (vii) For issuance of appropriate writ in the nature mandamus or any other appropriate order, restraining respondent College from taking any coercive steps like removal of Petitioners

Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 from the post of Assistant Professor (Adhoc) on which they are presently working or termination, during the pendency of the writ petition. (viii) To any other relief or relief which the petitioners may be found entitled to in the facts and circumstances of the case; (ix) Cost of this litigation. Fact of the case

3. The brief fact emanates from the case record is that petitioner no.1 was appointed as Assistant Professor for the post of chemistry on ad hoc basis on 02.01.2018 by the orders of Secretary, Governing Body, Mirza Ghalib College, Gaya, and joined the College as Assistant Professor on 03.01.2018 and started discharging her duties to the satisfaction of all concerned and continue to do so till date. While petitioner no.1 was working as Assistant Professor, she was given several responsibilities including the assignment to see the renovation of departments of vocational courses etc., which she successfully completed. Petitioner No.1 was given appreciation letter by the College administration for successfully handling several responsibilities including successful conduct of webinar during the lock-down in COVID.

3.1. Similarly petitioner no.2 has completed his PhD in the year Patna High Court CWJC No.10935 of 2021 dt.08-10-2024

2014. Prior to this, petitioner no.2 was appointed as Assistant Professor on 05.03.2011 in the Department of Persian studies vide orders of Secretary, Governing Body, Mirza Ghalib College, Gaya, and joined as Assistant Professor in the Department of Persian on the same day. It is stated that petitioner no.2 continued to discharge his function as Assistant Professor in the Department of Persian studies to the satisfaction of all concerned authorities and continue to do so till date. An advertisement was published in the Hindi daily i.e. Hindustan in the month of March, 2018 by the Secretary, Governing Body, Mirza Ghalib College, Gaya, inviting applications for appointment to the post of Assistant Professor in the Department of Urdu, Persian, Hindi, Psychology, Political Science, Economics, History, Philosophy, Physics, Chemistry, Botany, Mathematics and Commerce. The applications were required to be filed before 26th March, 2018. It was stipulated in the advertisement that preference will be given to experience teachers.

3.2. In response to the aforesaid advertisement, petitioner no.1 made application for consideration as Assistant Professor in the Department of Chemistry and petitioner no.2 made application for consideration as Assistant Professor in the Department of Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Persian. Petitioners have the requisite qualification as per the prevailing UGC norms for appointment to the post of Assistant Professor.

3.3. Upon due verification of the candidature of petitioners and considering the eligibility requirements being fulfilled by them, both were called for interview. Petitioner no.1 was called to appear for the interview on 24th February, 2019 at 9 AM in the premises of Mirza Ghalib College, Gaya. Similarly, petitioner no.2 was directed to appear for the interview on 17th February, 2019 at 9 AM in the premises of Mirza Ghalib College, Gaya. Petitioners were directed to appear before the interview board with all original documents for verification along with passport size photograph. Petitioners were also required to produce a xerox copy of the certificate from the officials of the University concern for approval of the Ph.D. as per the latest UGC regulation act at the time of interview. It was further indicated in the interview letter that no T.A. will be admissible.

3.4. Upon due completion of the interview, on 24.02.2019, for the post of Assistant Professor, final merit list was published taking into account the Marks of Academic qualifications and Marks of Interview. In the list of 20 candidates, who have applied for the post of Assistant Professor in the Department of Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Chemistry, petitioner no.1, secured second position with a total marks of 88. On the basis of performance before the interview board held on 24th February, 2019 and the academic marks including publications and teaching experience, panel of experts recommended her name for the post of Assistant Professor in the order of merit for the Department of Chemistry.

3.5. Similarly, upon due completion of the interview held on

17.02.2019 for the post of Assistant Professor in the Department of Persian studies, final merit list was published taking into account marks of academic qualifications and marks of interview. Out of 9 candidates, petitioner no.2, secured fourth position. It is stated that the panel of experts submitted the report on the basis of performance before the interview board held on 17th February, 2019 and the academic marks including publications and teaching experience for the post of Assistant Professor in order of merit.

3.6. However, no appointments were made as per the aforesaid final results and the matter was kept pending. Petitioners were hopeful that considering their position in merit list and number of vacancies in the respective departments, they would be appointed as Assistant Professors.

3.7. All of sudden, vide Advertisement published in Hindi daily Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 i.e. Hindustan dated 06.10.2019, fresh applications were invited for appointment to the post of Assistant Professors in the respective departments from eligible candidates, who possessed the prevailing UGC criteria. It was further stated that the applications and all testimonials must reach vide 25th October, 2019 through registered post only. In the same advertisement, it was mentioned that the Advertisement issued in March, 2018 and for which interview were held in February, 2019 have been cancelled by the Governing Body of the college due to unavoidable reasons.

3.8. By filing a supplementary affidavit on behalf of the petitioners, inter alia, it is alleged that after filing of the present writ application and bringing into light the irregularities committed in the second round of selection process drawn in furtherance of advertisement dated 06.10.2019 (Annexure-P/9), the petitioners have been subjected to undue coercion by the members of governing body including Secretary and the Chairman of the governing body of the college. It is further stated in the supplementary affidavit that Aziz Ahmad, who is chairman of the governing body ensured that his son-in-law Ehsanullah Danish is selected as Assistant Professor in the department of the Urdu. The aforesaid Ehsanullah Danish was Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 placed in the second merit panel for the Urdu subject, even though there was a candidate at Serial No.1, Mr. Ehsanullah Danish, being the close relative of Chairman, was shown favourtism by being selected in supersession of the candidate place at Serial No.1. For his selection date of interview for subject Urdu, which was initially schedule on 08.02.2021 was extended to 20.02.2021, the candidate who was above in the merit panel was deliberately not inform, no notice was published in this regard and in the most secretive clandestine manner interview was conducted on 20.02.2021 so that Mr. Ehsanullah Danish could appear and be selected finally. It is further stated that the teachers representative, namely, Sujat Ali Khan, who is the teachers representative and was also Vice Principal of the College, was part of the selection committee for selection of Assistant Professor for subject Psychology in which his cousin sister, namely, Khursid Jahan was finally selected as Assistant Professor. The aforesaid Sujat Ali Khan was himself sitting as member of selection committee while conducting interview and finalizing the selection process of his cousin sister namely Khursid Jahan as Assistant Professor in Psychology. It is further stated that Salma Jafar, who has been selected as Assistant Professor in Political Science, who is niece of Wasibul Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Haque (Member of selection committee), is also demonstrative of fact regarding the favoritism, which has been the sole guiding factor for selection of the Assistant Professor through the advertisement dated 06.10.2019 (Annexure-P/9). The said Wasibul Haque, who was member of selection committee, was present at the time of interview and has ensured that his niece Salma Jafari be appointed as Assistant Professor in Political Science.

3.9. It is further stated that Petitioner No.1, after filing of the writ application, was coerced and threatened by Respondent No.9 for withdrawing the writ application. Petitioner No.1 was threatened to the extent that she belongs to fair gender and she could be subjected to anything unpleasant any time for her conduct of exposing the illegalities in the selection process. The petitioner No.1 has in her possession the electronic evidence in the form of telephonic conversation with Secretary of the Governing Body (Respondent No.9), wherein she has been coerced for withdrawing the writ application, else she should be ready to face the consequences. Further, she was made to feel humiliated by taking away her classes and allotting her classes to the newly appointed lecturer barely having a couple of months of experience. The extent of the stress, duress and Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 coercion was such on Petitioner No.1 that she has to finally resign and leave the college after a month of filing the writ application. Other infirmities has also been brought on record. Contention on behalf of the Petitioners

4. Mr. Tej Bahadur Singh, learned Senior counsel appearing for the petitioners submitted that selection committee for conducting the interview has been prepared in complete breach of provisions contained in Section 57 -A & 57-B of Bihar State Universities Act. The selection committee was not comprised as per the statutory mandate as there was no university representative. At no stage any consultation with University for preparation of Selection Committee for the interview board was made.

4.1. It is next submitted that the Selection Committee comprising of a nominee of the Governing body (Chairman), Principal of the College, Head of the concerned Department, 3 Subject Experts from the panel of 5 names from the list approved by the University’s Academic Council and duly recommended by the Vice Chancellor as mandated by Bihar State Universities Act 1976, was not done. Till date it is not clear as to how the experts were selected. There is a complete lack of transparency and objectivity in the mode and manner of Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 selection.

4.2. It is next submitted that in the selection committee, Principal of the College, respective Heads of Departments were absent. Apart from it, how the selection of subject expert was made is not clear. Entire selection committee was constituted in breach of Bihar State Universities Act, more particularly Section 57-A & 57-B of the said Act.

4.3. It is next submitted that in absence of duly constituted selection committee, any appointment made is required to be set aside. It is submitted that ignoring all the relevant rules and regulation, entire selection process has been carried out, which is in teeth of provisions contained in the Bihar State Universities Act.

4.4. It is further submitted that after selection, large number of complaints were made. The Honourable Chancellor constituted an inquiry committee vide Letter dated 17.06.2021 and, thereafter, vide Letter dated 26.06.2021, Secretary, Governing Body, Mirza Ghalib College, Gaya was asked to submit his response. However, the response submitted by the college was found to be vague and evasive.

4.5. It is further submitted that, thereafter, inquiry committee vide its Letter dated 13.07.2021, directed, Secretary of the Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Governing Body, to send reply of the 20-point questionnaire seeking details of the appointment process, composition of Selection Committee and other relevant details. However, the secretary of the governing body did not provide any information and in apparent and conscious effort tried to mislead the enquiry committee and concealed the relevant facts. The video footage off the interview has gone missing. Relevant records like tabulation seat, proof of proper dispatch of appointment letter, basis of Selection of Expert, etc. were not provided by the college.

4.6. Learned senior counsel for the petitioners relied upon the judgement passed in the case of Dr. (Major) Meeta Sahay Vs. State of Bihar reported in (2019) 20 SCC 17 and in particular para-17 thereof, in support of his submission. It is, accordingly, submitted that all appointments made pursuant to advertisement dated 06.10.2019 is illegal and required to be set aside. Contention on behalf of Respondent Nos.10 & 11

5. Mr. Y.V. Giri, learned senior counsel appearing on behalf of the Respondent Nos. 10 and 11 submitted that the present writ application is not maintainable, as the college in question is a recognized minority institution, protected under Article 30 of the Constitution of India. Furthermore, since the petitioners Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 participated in the selection process, they are precluded from pursuing this writ application, as it is barred by the principles of waiver, acquiescence, and estoppel. This principle was affirmed by the Hon’ble Supreme Court in the case of Dhananjay Malik and Ors. vs State of Uttaranchal and Ors. (2008) 4 SCC 171 [para 7 to 9, 10, and 11].

5.1. It is further submitted that the writ petition rests on the unfounded assumption that the previous advertisement was cancelled, and a new one was issued to promote nepotism. However, this claim is disproved by the fact that Respondent No. 11 was already selected under the 2018 advertisement, in which his name appeared at the top of the merit list for the subject of Persian, for which only one post was available. Thus, the cancellation of the 2018 advertisement and the subsequent issuance of a fresh one did not place Respondent No. 11 in a more advantageous position, negating the argument of any undue influence or prejudice against the petitioners. Additionally, Respondent No. 10 is a legitimate and meritorious candidate who qualified for the post of Assistant Professor in Chemistry without any external assistance.

5.2. Mounting the attack, learned senior counsel further submitted that the petitioners lack the locus standi to maintain Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 the present writ petition. During the selection process under the 2018 advertisement, the selection committee merely recommended their names, along with others, for appointment to the post of Assistant Professor. However, no appointments were made as a result, and therefore, no rights were vested in the petitioners. By their own admission, they were only part of a panel of candidates, which does not confer any enforceable right upon them. Furthermore, it is well-settled law that an employer has the authority to cancel any selection process, and such decisions cannot be challenged in a writ petition, particularly when no right has vested in any candidate. Additionally, the subsequent selection process was publicly notified and conducted in accordance with Article 14 of the Constitution of India, ensuring fairness and transparency.

5.3. He further submitted that the college, as a minority institution, has the constitutional right under Article 30 to administer its affairs independently. Neither the State nor the University has the authority to interfere in its administration, and the decisions made by the governing body of the minority institution are not subject to judicial review. If the appointed Assistant Professors meet the required qualifications (as is the case with the respondents), any interference in the selection Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 process would violate the institution's autonomy and rights. Such interference could also set a dangerous precedent, opening the floodgates to unnecessary and impermissible litigation.

5.4. It is further submitted that both the respondents are well qualified, eligible and possesses all requisite criteria against the advertisement advertised by the concerned college on

06.10.2019 for the post of Assistant Professors in various subjects. The respondent no. 10 possesses M.Sc. degree in the subject of chemistry, as well as Ph.D. degree also in accordance with provisions contained in UGC (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) regulations, 2009, from the Deen Dayal Upadhyay Gorakhpur University, Gorakhpur, UP. Whereas, the Respondent No. 11 possesses B.A. (Hons.) in Persian language; M.A. (Hons.) in Persian Language; M.Phil as well as Ph.D degree also in accordance with provisions contained in UGC (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) regulations, 2009, from the Jawaharlal Nehru University, New Delhi.

5.5. Learned senior counsel further submitted that both the respondents nos. 10 and 11 have been duly appointed on the post of assistant professor in their respective subjects based on recommendation made by the selection committee constituted in Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 the said respect. Pursuant to this they did not have any role to play in the matter of publication of advertisement or anything connected with the constitution of selection committee and other ancillary matters pertaining to the matter of selection of candidates against the post of Assistant Professor in different subjects at the college. The writ petitioners have filed this writ petition only after they have not been succeeded in the selection process against the posts of Assistant Professors, have the writ petitioners approached this Court to achieve what they could not through the selection process.

5.6. It is further submitted that the Respondent No. 10 has been duly appointed and is currently serving as an Assistant Professor in Chemistry at the college. However, it is important to note that Respondent No. 10 neither applied for nor participated in the earlier selection process conducted by the concerned authorities through the advertisement issued in March 2018. Consequently, no comparative evaluation was made between Respondent No. 10 and Petitioner No. 1.

5.7. It is further submitted that mere participation in the selection process and securing a place on the merit list does not grant Petitioner No.1 an indefeasible right to the position, even though Petitioner No. 1 ranked second on the merit list prepared Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 based on the selection committee's recommendations. As the entire selection process conducted pursuant to the earlier advertisement issued in March, 2018 was subsequently cancelled, no right to appointment arises in Petitioner No. 1's favour.

5.8. It is further submitted that in the year, 2018, a vacancy for the post of Assistant Professor in Persian was advertised. Both Respondent No. 11 and Petitioner No. 2, along with others, participated in the selection process. Following this process, Respondent No. 11 was declared successful and was ranked first in the panel prepared based on the experts' recommendations, while Petitioner No.2 was ranked fourth. As a result, Respondent No.11 was recommended for the only available post of Assistant Professor in Persian. However, no action was taken on this panel as the selection process was later cancelled. Petitioner No. 2 ranked fourth, while Respondent No. 11 ranked first, there was no possibility for Petitioner No. 2 to have gained any advantage, even if the panel had been acted upon and appointments made. In that case, Respondent No. 11 would have been given preference for the post of Assistant Professor in Persian at the College.

5.9. It is further submitted that the earlier selection process Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 was cancelled based on a decision taken by the concerned authorities at the College. Subsequently, a new advertisement dated 06.10.2019 was issued following a decision by the College's Governing Body, which the writ petitioners did not challenge at any point. Furthermore, the allegations made against various office bearers are unsupported by any material evidence on record.

5.10. It is reiterated that following the publication of the advertisement dated 06.10.2019, the writ petitioners, along with others, participated in the selection process. They claim that the selection committee members did not meet the criteria under Section 57B of the Bihar State Universities Act, 1976, is entirely unfounded. The selection committee was properly constituted, including subject experts, and the selection process was conducted based on the committee’s recommendations. Neither Respondent No. 10 nor Respondent No. 11 were members of the College's Governing Body or the selection committee. Their appointments as Assistant Professors were based solely on their merit in comparison to other candidates who participated in the selection process, and their appointments were made in accordance with the law.

5.11. Learned senior counsel further submitted that, in line with Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 the fundamental right guaranteed under Article 30 of the Constitution of India, the Bihar State Universities Act, 1976 does not mandate prior approval from any selection committee for the appointment of teachers in minority institutions. The authority to make such appointments, along with related decisions, rests solely with the governing body, and cannot be overridden by the selection committee. Any involvement of the selection committee is purely formal and advisory, not obligatory. Nevertheless, despite not being required to involve a selection committee, the governing body, in the spirit of fairness and in adherence to the principles of Article 14 of the Constitution of India, included a selection committee comprising independent experts. This committee recommended the appointment of the respondents. It is noteworthy that the same process was followed for the 2018 advertisement, in which the petitioners also participated without raising any objections of a similar nature.

5.12. It is further submitted that it is a well-established principle of law that neither the State nor any other authority can, under the guise of implementing regulatory measures, undermine the administrative autonomy of minority institutions or interfere with their core management in a manner that renders Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 the institution's right to administer its affairs meaningless or ineffective. It is the inherent and fundamental right of minority institutions to manage their employees and teachers, including decisions related to appointments. The imposition of external authority over the institution's governing body, and making such external decisions final and binding, constitutes an undue interference. Such actions are impermissible in light of the protection granted under Article 30 of the Constitution of India and the provisions of the Bihar State Universities Act, 1976. Consequently, any interference with the Governing Body's decisions regarding appointments would be legally untenable.

5.13. It is further submitted that the regulatory measures concerning conditions of service, such as prescribing minimum qualifications for staff, setting pay scales, and ensuring safeguards for the removal of employees, are permissible. However, such regulation cannot extend to reviewing the appointment process itself, as this would constitute undue interference, particularly when the eligibility of the selected candidates is not in question.

5.14. In support of his submission, he relied on various decisions of the Hon’ble Supreme Court submitting that it is a well-established legal principle that the employer has discretion Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 in the selection process, which cannot be challenged, particularly when the selection is made by an expert committee. The legal position, as affirmed in Sajeesh Babu K. v. N.K. Santhosh & Ors., (2012) 12 SCC 106, holds that deference must be given to the recommendations of an expert committee comprising distinguished specialists in the field, as they possess a deeper understanding of the technicalities and nature of the work involved. Moreover, as previously mentioned, the writ petitioners, having already participated in the recruitment process, are barred from challenging the selection process, the method adopted, or its outcome. This legal principle has been upheld by the Hon'ble Supreme Court in Ramesh Chandra Shah & Ors. v. Anil Joshi & Ors., (2013) 11 SCC 309 [para 18, 20, 21 and 24].

5.15. He further submitted that the writ petitioners have not alleged that the respondents intentionally or inadvertently contributed to any discrepancies in the selection process, if any existed. In fact, no fault can be attributed to the respondents throughout the process. Therefore, since a right has accrued in favour of the respondents, who have been fulfilling their duties as Assistant Professors, they should not be deprived or penalized, especially when they are not at fault. Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Contention on behalf of the University

6. Per contra, Mr. Siddhartha Prasad, learned counsel appearing for the Magadh University submitted that Mirza Ghalib College, Gaya is an affiliated college under the Magadh University and a Minority Institution. The said college is getting benefit of deficit grant in aid by the State Government and employees of the college are being paid salary as like as the employees of constituent colleges.

6.1. It is further submitted that prior to 2007, Section 57 A of the Bihar State Universities Act provided for appointment of teacher in Affiliated College including Minority Institution “Appointment of teacher of affiliated college not maintained by the State Government shall be made by the Governing Body on the recommendation of College Service Commission, Dismissal, Termination, Removal from service or demotion in rank of teacher of such college 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 Body of 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". Patna High Court CWJC No.10935 of 2021 dt.08-10-2024

6.2. Mr. Prasad further submitted that in the year 2007, the College Service Commission was abolished and Section 57 A of the Bihar State Universities Act was amended whereby the College Service Commission was substituted by "University Service Commission" and procedure was also prescribed as to how Managing Committee will be constituted. In the year 2013, again amendment has been made in the Bihar State Universities Act and new Section 57 A and 57 B has been introduced. The new Section 57 A deals with the procedure of appointment in Affiliated Colleges including Minority Institution, whereas Section 57 B deals with the Constitution of Selection Committee.

6.3. It is further submitted that from perusal of Section 57 A and 57 B of the Bihar State Universities Act, it is evident that appointment of teachers in Affiliated College is to be done by the Governing Body on the recommendation of Selection Committee constituted under Section 57(B) of amended Act. Section 57 B of the said Act provides that the Chairman of the Governing Body shall be Chairman of the Selection Committee and two members from the college i.e. Principal of the College and Head of Department of faculty shall also be a member of the Selection Committee. Patna High Court CWJC No.10935 of 2021 dt.08-10-2024

6.4. In case of Minority Institution, Chairman of the College has right to nominate, three experts out of the list of five persons preferably from Minority Community and who have been recommended by the Vice- Chancellor from the panel of experts proposed by the Academic Council of the University. Therefore, the Governing Body of the College has vital role in constitution of Selection Committee. According to the said Act, the University has only role to provide a list of qualified experts out of which the Chairman of the Governing Body will nominate three persons from the list of five persons i.e. the preferably from the Minority Community. Thus, even after introduction of new Section 57 A and 57 B in Bihar State Universities Act, the Selection Committee is predominantly of persons from the college itself.

6.5. He further submitted that in the year 2018, the college in question came out with advertisement for appointment of Assistant Professor in different subjects and in pursuance of said advertisement selection process was completed as claimed by the writ petitioners. In the meantime, New Governing Body of the college in question has been constituted. The newly constituted Governing Body cancelled the selection made by the erstwhile Governing Body and came out with fresh Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 advertisement dated 06.10.2019, as contained in Annexure-9 to the writ application. Thereafter, selection process was completed and appointments were made accordingly.

6.6. Mr. Prasad mainly harped on non-compliance of the provisions enshrined in Section 57 B of the Bihar Universities Act and submitted that Selection Committee for appointment of Assistant Professor as such was not constituted in terms of Section 57 B of the Bihar State Universities Act amended in the year 2013 in either of the two transactions for selection of candidates. The Selection Committee was constituted by the College on its own in contravention of statutory provisions of the Bihar State Universities Act, therefore, the appointment of Assistant Professors in different subjects in Mirza Ghalib College, Gaya is illegal. In fact, no information was given to the University regarding the entire selection process and everything has been done in an arbitrary manner. In support of his submission, learned counsel relied upon the judgement passed in CWJC No. 14793 of 2017 (Noor Alam Khan Vs. State of Bihar & Ors) and submitted that a challenge was made to the vires of Section 57 A of the Bihar State Universities Act and the same has been upheld by Hon'ble Division Bench of this Court.

6.7. Mr. Prasad, learned counsel for the University further Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 submitted that if the college selects an expert for being a member of selection committee from the panel of experts approved by the Academic Council, the same by any stretch of imagination, cannot be termed as interference in the administration of affairs of the college. It is the bare minimum participation of the University which has to face audit of allocation of funds by State and other agencies.

6.8. In support of his submissions, Mr. Prasad relied on various judgments some of which are mentioned herein below: (i) Sk. Md. Rafique Vs. Managing Committee, Contai Rahamania High Madrasah and Others reported in (2020) 6 SCC 689. (ii) T.M.A. Pai Foundation and others Vs. State of Karnataka & ors. reported in (2002) 8 SCC 481. (iii) The Ahmedabad St. Xaviers College Society and Anr. Vs. State of Gujarat and Anr. reported in 1974 AIR 1389 : (1974) 1 SCC 717. Submission on behalf of Respondent Nos.6 to 8

7. Mr. Abhinav Shrivastava, learned Advocate, appearing for respondent nos.6 to 8, has argued almost in line with the submissions made on behalf of respondent nos.10 and 11. He submitted that the writ petitioners have no locus standi to Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 maintain this writ application. Inasmuch as they have on their own volition, voluntarily, with their eyes wide open and without any protest whatsoever with regard to the constitution of the Five Member Selection Committee having participated in the selection process and their individual interviews was held on

04.02.2021 and 05.02.2021 and having not being successful, are precluded in law in questioning the said selection process held in February, 2021, pursuant to newspaper publication made on

06.10.2019.

7.1. He further submitted that when a candidate willingly and voluntarily participates in the selection process and is not successful, cannot thereafter turn around and claim that the said selection process is vitiated on any count.

7.2. He further submitted that it is well settled that a litigant cannot approbate and reprobate at the same time. It is admitted position that the writ petitioners participated in the earlier round of interviews held on 24.02.2019 and 17.02.2019 respectively. The said selection process was conducted only by two experts and in complete violation of Section 57 B (1) of the Bihar Universities Act, 1976 (as amended). They cannot claim to have any vested right for appointment pursuant to the said selection process of February, 2019. The Two Member Expert Committee Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 had no jurisdiction to make any recommendations in favour of the petitioners. It is further admitted position that the writ petitioners having participated in the said interviews held on

04.02.2021 and 05.02.2021 and having not been selected, are precluded in law to maintain the instant writ application.

7.3. He further submitted that the college is recognized minority education institution in terms of Article 30(2) of the Constitution of India and it has been conferred upon with the right to establish and administer an educational institution which, inter alia, includes the powers to make appointments against the posts of teachers and other members of staff at the College against the sanctioned posts while adhering to the prescriptions laid down with respect to educational qualification and other eligibility criteria under the relevant Acts and Statutes. He further submitted that certain baseless and misconceived assertions have been made on behalf of respondent nos. 3 to 5, with respect to violation of the provisions contained under Section 57A and the Section 57 B of the Bihar State Universities Act, 1976, whereas as a matter of fact, while conducting the process of selection in furtherance of advertisement dated

06.10.2019 issued by the College, all necessary steps have been taken and the provisions contained under the Section 57A and Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 the Section 57 B of the Bihar State Universities Act, 1976 have been strictly adhered to.

7.4. It is further submitted that the College is a minority educational institution and affiliated to Magadh University, Bodh Gaya, the prescription with respect to educational qualifications and process of selection laid down under the Bihar State Universities Act, 1976, as amended up to date and the statutes framed thereunder, are to be followed. However, the management of the College has the right to make appointments without any interference from the side of the University.

7.5. It is further submitted that on the basis of a decision taken by the governing body of the college, the earlier process of selection conducted for making appointment against the posts of Assistant Professor in different subjects in which the writ petitioners had also participated was cancelled for just and valid reasons and without any objection ever having been raised by the writ petitioners, they participated in the subsequent process of selection conducted by the management of the respondent College pursuant to advertisement dated 06.10.2019 and it was only after they were declared to be unsuccessful in the said process of selection that the connected writ petition was filed and as such, on this count alone, the writ petition under reply is Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 fit to be dismissed by this Court. In so far as the role of the University and the extent to which any control may be exercised by it are concerned, the same have to be in accordance with the provisions contained under Section 57A and the Statutes framed in terms of Section 57B of the Bihar State Universities Act, 1976 as amended from time to time. He referred to an order and judgement dated 14.01.2020 passed in CWJC No.10283 of 2019, wherein identical issues were involved with respect to the extent to which the University could exercise control in the matter of appointment against the posts of teachers at a College which was affiliated to a University incorporated and established under the Bihar State Universities Act, 1976.

7.6. In view of the submission as made above, Mr. Shrivastava lastly submitted that the writ petition filed by the petitioners is completely misconceived and devoid of any merit in the eyes of law and the same is fit to be dismissed. Issues for consideration

8. Having heard learned counsel for the parties at length and on perusal of the case record, in my considered opinion, two issues arise for consideration in this case: I. Whether the petitioners have locus standi to present this Petition? II. Whether the selection committee was Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 constituted as per the provisions of Section 57 B of the Bihar Universities Act? Issue No.I

9. It is further observed that in India, there are four categories of persons for locus standi: first category is individual standing; second category is statutory standing or in other words, when statute has provided standing to a person or a class of persons and on the strength of the standing conferred by the statute, one may move the Court; third category is public interest litigation; fourth category of locus standi is representative action or class action. However, over a period of time, there may have been a lowering of the barrier imposed by the standing requirement or taking a liberal approach in the matter. But, it is necessary to follow certain principles having regard to the law. Thus, the doors of the court could be made open at the instance of the persons or authorities under certain categories and every other person cannot move a writ petition challenging actions of the State Government or its instrumentalities. Otherwise, the doctrine of locus standi or a standing requirement would be rendered meaningless and thereby introduce a procedure which is not judicially recognised.

9.1. Firstly, I would like to emphasise that cases may arise where there is undoubtedly public or personal injury by the act Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a person having sufficient interest can certainly maintain an action challenging the legality of such act or omission.

9.2. The Hon’ble Supreme Court, in series of judgments, has in clearest terms laid down that if a challenge to arbitrary or mala fide administrative action, which seriously affects Rule of Law is disallowed, disrespect for law would be the consequence, which would strike a severe blow to Rule of Law and force the people to fight out the matter in the streets. Therefore, citizens must be allowed to resort to a legal remedy in the Courts and should not be forced to go to the streets to resort to unconstitutional methods to express their protest against such Governmental decisions. Any such situation created by taking a narrow, pedantic view about locus standi, even in situations in which arbitrary or capricious or mala fide exercise of power is alleged and the extent and gravity of such unlawful action is such as would make a mockery of Rule of Law, the consequence would be disastrous in that it might mark the beginning of the end of the faith of the people in the Rule of Law.

9.3. Secondly, a person aggrieved is one who is directly and Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 adversely affected by an act, law or decision of the State or its instrumentalities, which infringes any constitutional or statutory right of the person and thereby entitles him to sustain a petition under Article 226 of the Constitution. The petitioner must be in a position to demonstrate before the Court, that he has personally suffered an infringement of a right on account of something done by the State or its instrumentalities. This would authorise such a person to prefer and sustain a writ petition.

9.4. I may rely on dictum of the Hon’ble Apex Court in the case of Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044, and in particular para-5, the Apex Court has held as under: "...Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal Rungta, (1952) SCR 28 : (1951 SCC 1024 : AIR 1952 SC 12) this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Patna High Court CWJC No.10935 of 2021 dt.08-10-2024 Court under Article 226 of the Constitution. In Charanjit Lal Chowdhuri v. Union of India, (1950) SCR 869 : (1950 SCC 833 : AIR 1951 SC 41, it has been held by this Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified..."

9.5. Further in the case of Mani Subrat Jain v. State of