Dr. Ravi Ranjan v. Lalit Narayan Mithila University, Darbhanga Through Its Registrar & Ors.

intermeddle in the affairs of the University, firstly under section 35 by way of sanction of post and approval to the appointments made on those sanctioned post and secondly, to get the accounts of the University audited for finding out the utilization of the fund released by the Government in terms of Sections 48 and 54 of the Bihar State Universities Act which reads as follows: “48. Approval of the Budget by the State Government.- (1) Notwithstanding anything contained in this Act or the 5 Statutes, University Ordinance or Regulation made thereunder, every University shall send its budget for every financial year to the State Government. The University shall show therein estimates of receipts and disbursement for the ensuing year. The State Government shall return the budget to the University with such modification as it may deem fit and the University shall act in conformity with such a modified and approved budget. (2) At any time during the financial year, the University may send a supplementary budget the State Government and the State Government shall return the budget to the University with such modifications and approval as it may deem proper. (3) No expenditure shall be incurred by any University unless such an expenditure has become a part of the budget as finally approved under sub-section (1) or (2).

Power of the State Government to have accounts of the University or College audited.- If it considers necessary, the State Government may cause the accounts of the University or any College to be audited by such agency as it thinks fit and on receipt of the audit report it may, after calling for a report from the University or College on therein and after considering the same, issue such directions as it thinks fit and thereupon the University or the College, as the case may be, shall comply with such directions within the time specified therein.” the points raised

Obviously the power so exercised by the State Government in the letter dated 4.3.2011 (Annexure-3) which reads as follows: ^^i=kad& 15@,e1 & 226@09&559 fcgkj ljdkj] ekuo lalk/ku fodkl foHkkx izs"kd] ,l0 f’ko dqekj lsok esa] dqylfpo fcgkj ds lHkh fo’ofo|ky;A iVuk] fnukd 04&03&2011 6 fo"k;& f’k{kd ,oa f’k{kdsRrj deZpkfj; ksa dh fu; qfDr ij jksd ds laca/k esA egk’k;] fcgkj fo’ofo|ky; vf/kfu;e ,oa iVuk fo’ofo|ky; vf/kfu;e esa la’kks/ku dh dkjZokbZ fopkjk/khu gSA lkFk gh fu; qfDr dh oRrZeku izfdz;k esa Hkh la’kks/ku izLrkfor gS ,oa blds fy, ,d vyx vk; ksx dk xBu Hkh fopkjk/khu gSA ,sls esa fo’ofo|ky; ksa esa f’k{kd@f’k{kdsRrj dfeZ;ksa dk fu; kstu mfpr ugha gksxkA vr,o ;g fu.kZ; fy;k x;k gS fd mijksDr fu; qfDr;ksa ,oa LFkkukarj.kksa ij vxys vkns’k rd jksd jgsxhA bl jksd dk izksUufr ij dksbz vlj ugha gksxkA fo’oklHkktu g0@& …,l0 f’ko dqekj‰ lfpo** cannot be even remotely referred to under sections 48 and 54 of the Bihar State Universities Act.

That would leave this Court to examine the provision of Section 35 of the Bihar State Universities Act which reads as follows:

35. No post for appointment shall be created without the prior sanction of the State Government.- Notwithstanding anything contained in this Act, no University or any College affiliated to such a University except such College- (a) as it established, maintained or governed by the State Government; or the prior approval of (b) as is established by a religious or linguistic minority; (i) After the commencement of this Act no teaching or non-teaching post involving financial liabilities shall be created without the State Government. (ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance; Provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance. (iii) shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment or any other benefit having financial implication to any person holding a teaching or non-teaching post; incur expenditure of any kind on any (iv) shall development scheme without the prior approval of the State Government. 7 (2) Notwithstanding anything contained in this Act, no College other than one mentioned in clauses (a) and (b) of sub-section (1) shall after the commencement of this Act, appoint any person on any post without the prior approval of the State Government. Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification. (3) Any appointment or promotion made contrary to the provisions of this Act, or Statutes, Rules or Regulations made thereunder or made in irregular or unauthorised manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realised from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.

underlining for emphasis.

As would be evident from Section 35 of the Act that the post for appointment in the University has to be created and sanctioned with the prior approval of the State Government but there is nothing in Section 35 which prohibits the Universities to fill up those sanctioned post.

At this stage this Court also must consideration that under section 2(v) of the Act ‘teacher’ has been defined to also include Principal apart from the University Professor, College Professor, Reader, Lecturer, Demonstrator and therefore, the provisions of Section 57 of the Bihar State Universities Act is the only guiding factor for appointment on the post of Principal. Section 57 of the Bihar State Universities Act so 8 far it relates to appointment on the post of Principal lays down that the appointment to every post of teacher which would include Principal shall be made on the recommendation of Commission on fulfilment of the condition mentioned in Section 57 of the Act. In Section 57 there is a clear stipulation that the teachers which would also include Principal appointment will be made through a Selection Committee as prescribed therein. From reading of Sections 57 of the Bihar State Universities Act it would be absolutely clear that there is no role of the State Government in appointment of the Principal of the constituent Colleges of the University against a duly sanctioned post.

This aspect of the petitioner has been recently considered by this Court in its order dated 20.08.2013 passed in C.W.J.C No. 18945 of 2012 (Nirmala Devi vs B.N. Mandal University) the context of ban imposed by the State Government for making any appointment including compassionate appointment, this Court having considered the relevant provisions some of which has also been noticed in this case as discussed above had held as follows:- "First of all this Court must clarify that the State Government has got no power to ban appointment on any sanctioned post in University if such post is a sanctioned post available in terms of Section-35 of Bihar State Universities Act 1976. The State Government University from making such appointment on a sanctioned post. It is only with regard to a limited fact cannot restrain 9 the Bihar State power under Section-35 of Universities Act that the State Government can either refuse to sanction a proposed post or any scheme of appointment on compassionate appointment having been already enforced in the Universities it is for the University to decide as to whether the person concerned including the petitioner's daughter in this case would qualify for such appointment. such post. The

Learned counsel for the State also does not deny this aspect but he is of the view that mere publication of the advertisement will confer no right to the petitioner to seek a writ in the nature of mandamus for directing the University to fill up the post. In fact for this purpose he has also placed reliance on the judgment of the Apex Court in the case of Jai Singh Dalal & ors. vs. State of Haryana & anor., reported in 1993 Supp(2) SCC 600.

In the considered opinion of this Court, the facts of the case of Jai Singh Dalal (supra) are altogether distinguishable, inasmuch as, what was held therein that mere empanelment for appointment in response to an advertisement did not entitle them to appointment, inasmuch as, no right had been vested with the candidates on their names being entered in the seniority list and it was open for the Government for good reasons for not making appointment therefrom can fill the vacancies. In the present case it is not the decision of the employer, the University, to abandon the process of selection and appointment on the post of Principal 10 in fact it is the decision of the State Government which has imposed ban on all the appointment in the University even on sanctioned post by its letter dated 04.03.2011 and the employer in a very categorical manner has taken the stand that in view of the aforementioned ban of the State Government, it has not proceeded to undergo the process of selection for filling up the vacant post of Principal. This exercise of power, however, by the State Government as discussed above has been found to be bad, inasmuch as, under the Bihar State Universities Act, the State Government has been vested with no such power to impose ban on making appointment on a sanctioned post.

A judicial notice can be taken of this fact that functioning of the constituent colleges in absence of a regularly appointed Principal is virtually impossible. In fact it gives rise to series of litigation on account of filling up of the post of Professor- in-charge or acting Principal by authorizing the seniormost teacher to function as Professor-in-charge/Incharge Principal. In fact there being no inter se seniority decided between the teachers of different faculties, it usually to kiosk whenever an arrangement is made by authorizing one of the seniormost teacher of the constituent College to function as Professor-in-charge or Acting Principal in absence of regular Principal. Thus filling up of the post of regular Principal in the constituent Colleges of all the 11 Universities is itself in public interest and also in the interest of the institution including constituent colleges functioning directly under the control of the University.

It has to be noted that the University in its counter affidavit has also taken a stand that it intends to fill up the vacant post of Principals, inasmuch as, it has been stated therein:- "That in reply to the statements made in paragraph nos. 18, 19, 23, 29, and 31 to the writ petition, it is mist humbly submitted before the Hon'ble Court that the University in compliance of the Annexure-3, has at present not proceeded with the selection on the posts which was advertised but at the same time it is stated that that it will be filled up under the existing Act/statute/Rules as on the date of advertisement and any further amendment/decision should not affect the process for filling up the vacancies as per the advertisement till it is kept alive. At last it is stated by the that as soon as the State Government lifts the ban on the appointments the University will proceed further without any further delay. "

It would thus become clear that the University has not proceeded to make selection terms of aforementioned Government letter dated 04.03.2011 quoted in paragraph no. 6 of this judgment which is Annexure-3 to the writ petition. This Court, however, would find that the Government had no power to issue such order imposing ban on all the appointments in all the Universities on duly sanctioned post. To that extent Annexure-3, the order of the State Government dated 04.03.2011 is a bad order 12 both on fact and in law. This would bring this Court to consider the stand which has been taken by the State Government in its counter affidavit filed on behalf of respondent no. 6 and 7. As would be evidenced, the so called exercise for rationalization of the post has been undertaken from the year 2010, inasmuch as, in this regard certain observations has been made by this Court in the order dated 08.04.2010 passed in C.W.J.C No. 1182 of 2010. It is really strange that such exercise of rationalization of post has not been completed even in a period of more than three years and all the Universities have been left high and dry even in the matter of making appointment on duly sanctioned post. For the State Government, it may be very easy to constitute one Committee or other Committee and await submission of report but it is very difficult for the Universities to function on account of vacancies of teaching and non teaching post. In any event when the state government in its counter affidavit has accepted that the process of rationalization of the teaching post in the University had been completed way back on 24.04.2012, the State Government in all fairness ought to have revoked its ban imposed in the letter dated

04.03.2011 .

The other plea that the State Government was awaiting the decision of the learned Chancellor on the proposal laying down the manner of filling up of teaching post including that of 13 the Principal will also not affect filling up of the post of Principal for which advertisement was issued in the year 2010. By now it is well settled that whatever Rules are applicable on the date of issuance of the advertisement, the appointment has to be made under such Rules and the amended Rules coming into force after commencement of the selection process i.e. after publication of advertisement cannot cover the old vacancies for which selection process has already commenced. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of N.T Devin Katti vs Karnataka Public Service Commission reported in 1990 (3) SCC 157 . In fact the learned counsel for the petitioner is fully justified in relying on a subsequent judgment of the Apex Court in the case of Md. Raisul Islam and ors vs Gokul Mohan Hazarika & Ors reported in 2010(7) SCC 560: wherein it was held as follows:- "................................ appointment made in terms of an advertisement published prior to amendments effected to the Rule or Order would normally not be affected by the amendment. In other words, where the selection process is initiated by issuing an advertisement inviting applications selection normally should be regulated by the Rule or Order then prevailing. We agree with the view taken by the High Court which has been reiterated by Mr. Goswami in keeping with the well-established principle that once a process of selection is started on the basis of the existing Rules of recruitment, the said Rules will continue process, notwithstanding any amendment which may have been effected to the said Rules in the meantime. " selection govern 14

Thus, this Court would not find any merit even in that plea of the State Government for appointment on the post of teachers including Principal cannot be made because amendment is proposed as with regard to the norms in the matter of appointment of teachers including the Principals.

In the light of the aforementioned observation, this Court will have no hesitation in allowing this writ application by directing the respondent-University to proceed by way of selection on the advertised post of Principal in the University vide advertisement no. 1/2010 and complete the same by way of issuance of appointment letter to the eligible candidates within a period of six months from the date of receipt of this order without being in any way influenced by the aforementioned order of the State Government dated 04.03.2011 as contained in Annexure-3 to this writ application.