@JUDGMENTTAG-ORDER
S.J. Mukhopadhaya, J.@mdashThe application was initially preferred by petitioner, Arun Kumar Srivastava against the order of Chancellor dated 8.1.1998 communicated vide Memo no. 981 dated 19.3.1998 whereby and where under the Chancellor remitted the case of petitioner to B.R.A. Bihar University for its adjudication. It was alleged to be illegal, Chancellor having not decided the issue in spite of remand made by the Court for his decision. The case was taken up on 17.11.1999 when this court directed the Vice-Chancellor to decide the issue after notice and hearing the parties. The Vice-Chancellor thereafter on hearing the parties passed impugned order and communicated the same to petitioner on 27.12.1999 (Vide Annexure-25), which has been challenged by petitioner in amendment petition. The prayer of petitioner for his appointment as lecturer on regular basis has been rejected and the appointments of 7th respondent, Jai Narain Prasad and 8th respondent, Raj Kishore Singh have been upheld.
Further prayer has been made for production of the copy of order of appointment of 7th & 8th respondent and to quash the same.
The court being not satisfied with the allegation of malafide against Dr S.N. Sinha, Vice-Chancellor, had not issued any notice to him.
2. The case relates to appointment to the post of lecturer (Math) in Khem Chand Tara Chand College, Raxaul (East Champaran) (College for short) which was an affiliated college used to be ran by Governing Body. Now the college has been made a constituent college of the University.
In pursuance of decision of the Governing Body, an advertisement was published in the newspaper ''Indian Nation'' on 10.8.1984 for appointment to the post of lecturer (Math.) in the college The petitioner as also 7th & 8th respondents applied alongwith others and were screened/interviewed by a Selection Committee. The Selection Committee recommended the name of petitioner as first nominee, 7th respondent as second nominee and 8th respondent as third nominee for first and second posts of Lecturer (Math.) However, the Governing Body of the college altered the position and made appointment of second and third nominee (7th & 8th respondents) as lecturer (Math.) against first and second posts. This gave rise to C.W.J.C no. 6481/91 preferred by petitioner challenging their appointment which was disposed of on 18.12.1992 with direction to the Chancellor to decide the issue on hearing the parties. The petitioner thereafter filed a representation before the Chancellor on 18.1.1993 alongwith the Courts order, on which the Chancellor heard the parties but no final order was passed within the prescribed period. Subsequently, the Chancellor, after long delay passed the impugned order on 9.1.1998, as communicated vide Memo dated 19.3.1998 and without deciding the issue of merit, remitted the matter to the University. The Vice-Chancellor, as stated above thereafter rejected the claim of petitioner and communicated the same vide impugned order dated 27.12.1999.
Since the appointment of 7th & 8th respondents made the petitioner continued to agitate the matter on different grounds as finally decided by the authorities and communicated vide letter dated 27.12.1999. Before the authorities of the University, Chancellor and this Court, the petitioner raised the question relating to legality & propriety of appointment of 7th & 8th respondents and the jurisdiction of the Governing Body in the matter of exclusion of petitioner from appointment as lecturer (Math.) in spite of recommendation in his favour as first nominee.
3. From the facts, as narrated and taken into consideration in the impugned order dated 27.12.1999, the following facts emerges:
An advertisement was published in the newspaper ''Indian Nation'' on 10.8.1984 wherein 20.8.1984 was the last date fixed for filing application. The candidates were asked to appear in the interview on 25.8.1984. However, the interview actually held on 2.9.1984, instead of 25.8.1984 where in after the selection Committee made recommendation. In the panel, the petitioner was shown at serial no. 1 whereas respondents, Jai Narain Prasad and Raj Kishore Singh were shown at serial nos. 2 & 3 respectively. Thereafter the Governing Body of the college in its meeting dated 28.4.1985 vide resolution no. 5 resolved to approve the appointment in accordance with seriatim/position as shown in the panel/merit list. However, the said proceeding was annuled on the same date with a foot note on the ground of lack of quorum. By its subsequent meeting held on 11.8.1985 decision was taken to appoint 7th respondent, Jai Narain Prasad and 8th respondent, Raj Kishore Singh against first and second posts respectively. The appointment orders were issued in their favour.
It appears that the Principal of the college vide letter dated 21.2.1985 informed that since last week of August, 1984 the 7th and 8th respondents were working, but on the basis of record, it will be evident that the formal decision was taken by Governing Body to appoint them subsequently, on 11.8.1985. How they were allowed to work since the end of August, 1984 has not been made clear when the advertisement was published on 10.8.1984 and the interview took place on 2.9.1984 the formal date of order of appointment of 7th & 8th respondents has also not been shown, nor mentioned in the impugned order.
4. Notices were issued to 7th & 8th respondents with clear stipulation that the case may be disposed of at the stage of admission and notices were also served on the counsel for the University and the State. In spite of such notices, none of the respondents choose to file counter-affidavit though 7th respondent appeared.
5. From the impugned order, it will be evident that the petitioner specifically took plea that 7th & 8th respondents were not qualified on the last date of submission of application (20.8.1984) as they had not passed M.Sc. examination by that time, their results having officially published on 30.8.1984. This fact has not been disputed and taken into consideration by the Vice-Chancellor of the University, while passed impugned order and communicated vide letter dated 27.12.1999. In spite of the same, their appointments have been published by the Vice- Chancellor on the ground that there are many situation even at B.P.S.C. and U.P.S.C. level in which appearing candidate is also allowed to apply. However, it has not been disputed that no such stipulation made asking appearing candidates (in M.Sc. examination) to apply, on the other hand, M.Sc. was minimum qualification prescribed for appointment under the law and 20.8.1984 was the last date fixed for application showing the date of interview in the advertisement as 25.8.1984.
6. The question as to what will be the cut-off date to find out the eligibility of a candidate fell for consideration before the Supreme Court in numerous cases and the matter stands settled. In this context, one may refer to the decision of the Supreme Court in the case of
Thus, the 7th & 8th respondents being not qualified having not passed M.Sc. examination by the last date of application (cut- off date 20.8.1984), they were ineligible to be considered for such appointment and their appointment can be held to be illegal.
7. The other point agitated by the petitioner was that the Governing Body was not competent to alter the merit, petitioner having shown at serial no. 1, above the 7th & 8th respondents. The Governing Body has not given any decision as to why they altered the merit. The Vice-Chancellor merely stated that the Governing Body was competent to select anybody from the panel but failed to take into consideration that the merit position given by a Select Committee/Selection Committee could not have been altered, though it was open to Governing Body to refuse appointment to a person having higher merit only if he was found to be ineligible and/or for some other good reason like past antecedent etc. The Vice-Chancellor vide impugned order seems to have re-assessed the merit, without giving reference to the relevant academic record on merit presumption that amongst the three names recommended by the Selection Committee, the academic record of petitioner was poorest, without taking into consideration the marks as was allowed to the candidates in interview by the Selection Committee.
In this connection, one may also refer the decision of the Supreme Court in the case of Chancellor vs. Shankar Rao and ors. [(1999) 6 S.C.C. 255] wherein the Apex Court held that ever the Chancellor cannot re-evaluate the merit of the candidate and on that basis cannot reject the candidate selected by the Board of appointment. The Chancellor could have refused to act on the recommendation, if it was found that the selection Board/Committee while making recommendation violated the provisions of the Act or Statutes or the candidate recommend expressly lacked the prescribed qualifications.
8. For the reasons aforesaid, the impugned order cannot be held to be legal and, accordingly, I set aside the impugned decision of the Vice-Chancellor communicated vide letter dated 27.12.1999 (Annexure-25). The respondents should not have rejected the claim of petitioner on other ground that the petitioner become serious since December, 1985, the college having made constituent on 7.11.1985, the 7th & 8th respondents having appointed vide decision dated 11.8.1985.
However, taking into consideration the fact that 7th & 8th respondents are working since August, 1985 and about 15 years have passed, I am not interfering with their orders of appointment. I simply direct the respondents to appoint the petitioner against a post of lecturer (Math.), if vacant in the college in question. If there is no such post lying vacantin the college then the 8th respondent, Raj Kishore Singh is to make room for appointment of petitioner. In such case, he (8th respondent) is to be removed.
Though the order of appointment of petitioner may be prospective in nature, the petitioner will be entitled for other benefits i.e. seniority over the 7th & 8th respondents (being shown higher in the merit list), on the basis of merit list and pay protection to the extent the juniors are getting as on the date.
This order to be complied by the respondents on an early date but not later than a period of two months from the date of receipt/production of a copy of this order. The writ petition is allowed, with the aforesaid observations/directions.
