advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, October 7, 2016

Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the second respondent-Commission and going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.The first respondent’s suitability for appointment is not in doubt; instead of recommending the first respondent to the second post, the Commission was not justified in recommending her name as second preference for the first post and stopping at that. The reasons are not far to seek. In the second post available in the appellant-L.P. Shahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged his non-selection by the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. The appellant-Ramdeo Prasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.

                                            NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.  10010     OF 2016
                  (Arising out of SLP(C) No. 32203 of 2011)


GOVERNING BODY,
L.P. SHAHI COLLEGE, PATNA AND ANR.                         Appellants

                                   Versus

SMT. SEEMA MISHRA & ORS.                               Respondents

                                    With

                   CIVIL APPEAL NO.  10011         OF 2016
                   (Arising out of SLP(C) No. 978 of 2012)

DR. RAMDEO PRASAD SHARMA                              Appellant

                                   Versus

SMT. SEEMA MISHRA & ORS.                                 Respondents


                                  O R D E R


R. BANUMATHI, J.

      Leave granted.
2.    These two appeals have been filed against the judgment  of  the  Patna
High Court dated 30.06.2011 in LPA No.364 of 2008 arising  out  of  C.W.J.C.
No.8004 of 2000 wherein Division  Bench  of  the  High  Court  directed  the
appellant-L.P. Shahi College, Patna to appoint the first respondent  in  the
College.  One appeal is by the College and the other appeal  by  Dr.  Ramdeo
Prasad Sharma who was appointed as a Lecturer in the  Department  of  Labour
and Social Welfare of the appellant-College on  temporary  basis,  on  usual
scale of pay and other allowances. These two appeals  shall  stand  disposed
by this common order. For convenience, we narrate the facts from the  appeal
arising out of SLP(C) No.32203 of 2011.
3.    Brief facts leading to the filing of these appeals are  as  under:  In
the year 1994, the erstwhile Bihar College  Service  Commission  [for  short
‘the Commission’] had issued an advertisement inviting applications for  the
large number of teaching posts in  different  colleges  of  undivided  Bihar
including two posts in the Department of Labour and Social  Welfare  of  the
appellant-College. Respondent No. 1 had submitted her application on one  of
the posts advertised for teaching in the Department  of  Labour  and  Social
Welfare. The erstwhile Commission recommended two names  viz.,  Dr.  Siyaram
Sharma and Smt. Seema Mishra against the two advertised posts  of  lecturers
in the Labour and Social Welfare Department  in  the  appellant-College  and
communicated the  same  vide  letter  dated  15.06.1999  to  the  appellant-
College.
4.    According to the appellants, two persons viz., Dr. Siyaram Sharma  and
Smt. Seema Mishra had been recommended against one post and in  exercise  of
its right under Section 2(10) of Bihar College Service Commission Act,  1976
(for short ‘the Act’), the appellant-College appointed  Dr.  Siyaram  Sharma
and respondent No.1 was denied appointment. Being aggrieved  by  the  denial
of appointment, respondent No.1 filed a Writ Petition bearing  No.  8004  of
2000 before the High Court.
5.    The  learned  Single  Judge  held  that  the  Commission  intended  to
recommend the two names against two  posts,  but  the  aforesaid  letter  of
recommendation was inartistically worded. The learned Single Judge  directed
that the first respondent be appointed to the second  post  of  Lecturer  in
the Department of Labour and Social Welfare with effect from the  date  when
Dr. Siyaram Sharma had joined the  post,  with  notional  benefits.  It  was
further directed that the first respondent shall  not  be  entitled  to  the
arrears of salary or any other monetary benefits till she  joins  the  post;
however she will be entitled to the  raised  salary  with  added  increments
which would have fallen due to her from the date Dr. Siyaram  Sharma  joined
till the date she joins.  Aggrieved by  the  order  of  the  learned  Single
Judge, the appellant-College went before the  Division  Bench  of  the  High
Court by way of intra-court appeal. The Division Bench upholding  the  order
of the Learned Single Judge, held  that  the  Commission  had  violated  the
provision of sub-Section (9) of Section 2 of the Act and had failed  in  its
duty in not recommending the names of persons for the second post which  was
advertised and was available.  The Division Bench, inter alia, affirmed  the
other directions of the Single Judge.
6.    Heard learned counsel for the parties at length.
7.    Learned counsel for the appellants contended that  after  interviewing
the candidates for selection to the above posts, the Commission  recommended
the names of Dr. Siyaram Sharma-First and Smt. Seema Mishra-Second  for  the
first post in the aforesaid Department of  the  appellant-College,  and  the
Commission  also  issued  a  letter  to   this   effect   dated   15.06.1999
specifically mentioning that, the College shall appoint  any  one  from  the
names recommended by  the  Commission  with  the  condition  that  the  said
appointment shall be approved by the University.  It was submitted that  the
Commission actually failed in its duty in  not  recommending  the  names  of
persons for the second post and according to the appellant, it is  erroneous
to construe that first  respondent’s  name  should  be  considered  for  the
second available post.  It was further submitted that the interpretation  of
the Single Judge that “it appears that the Commission intended to  recommend
the two names against the two posts” was not only an  error  of  record  but
was also against  the  Statute  i.e.  Section  2(9)  of  the  Act.   It  was
submitted that without appreciating  the  aforesaid  position  of  law,  the
Division Bench erred in  dismissing  the  appeal  filed  by  the  appellant-
College
8.    Per contra, the learned counsel for  the  first  respondent  submitted
that as per Section 2(9)  of  the  Act,  the  Commission  was  to  give  its
recommendation  for  both  the  vacant  posts,  however,  due  to  error  of
communication, the letter dated 15.06.1999 was so worded  that  it  appeared
that the two names recommended were given  in  order  of  preference  for  a
single  post.  It  was  submitted  that  actually  the  name  of  the  first
respondent was recommended for the second permanent, vacant  and  advertised
post and upon proper appreciation of the facts  and  circumstances  and  the
submissions of the counsel for the Commission, the High  Court  has  rightly
directed the appellant-College to consider the name of the first  respondent
for appointment to the second post available.
9.    We have carefully considered the rival contentions,  and  perused  the
impugned judgment and material on record.
10.   Section 57A of the Bihar State Universities Act, 1976,  provides  that
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. Admittedly, there were two vacancies in  the
Department of Labour and Social Welfare in the appellant-College  for  which
advertisement was issued.  First respondent was recommended only  after  the
selection process.  Second respondent-Commission had recommended  two  names
vide its letter dated 15.06.1999 and the same reads as under:-
      “…
                      Bihar College Service Commission,
                                    Patna
                       Boring Canal Road, Patna-800001

Letter No.593 Confid./BCSC Patna,

                              Dated 15.06.1999
From
      Secretary,
      Bihar College Service Commission, Patna
To,
      The Secretary
      Governing Body,

Sub: Appointment of Lecturer in the Dept.

In reference to your letter No….. dated….. I have been  directed  to  inform
that for the post of Lecturer in Labour  &  Social  Welfare  Dept.  of  your
college,  advertisement  was  made  by  the  Commission  vide  Advertisement
No.315/94.  After holding the interview of the candidates,  this  commission
recommends the names of following candidates in the order of preference  for
appointment on the post of Lecturer provided  affiliation  for  the  current
session is obtained.

 First Post:     1. Dr. Siyaram Sharma-First
            2. Smt. Seema Mishra-Second”


Contention of  appellant  is  that  as  per  the  above  communication,  the
Commission recommended two persons for the first post,  one  of  them  viz.,
Dr. Siyaram Sharma was appointed and since there was no  recommendation  for
the second post, no appointment was made to the second post.
11.   As per the provisions of the Act, the Commission is required  to  make
recommendations of two persons for every post,  arranged  in  the  order  of
preference, out of which the Governing  Body  of  the  College  is  to  make
appointments and no person whose name is not recommended by  the  Commission
can be appointed by the Governing Body.  This  will  be  evident  from  sub-
sections (9) and (10) of Section 2 of the Act, which read as under:-
“Section 2
……
(9) The Commission shall recommend for appointment to every post of  teacher
names of two persons arranged in order of preference and considered  by  the
Commission to be the best qualified therefor.  The recommendation  shall  be
valid for one year from the date of the recommendation by the Commission.

(10) In making any such  appointment  the  Governing  Body  of  the  college
shall,  within  three  months  from  the  date  of  the   receipt   of   the
recommendation under sub-section (9), make its selection out  of  the  names
recommended by the Commission, and in no case shall Governing  Body  appoint
a person who is not recommended by the Commission.”

Since two posts were advertised  for  the  appellant-College,  in  terms  of
Section 2(9) of the Act, it was mandatory on the part of the  Commission  to
recommend two plus two candidates. But the Commission recommended  only  two
candidates for the first post.  The  second  respondent-Commission  has  not
followed the mandatory provision of Section 2(9) in  recommending  two  plus
two candidates for the two posts of lecturers advertised for the  appellant-
College.
12.   The writ petition filed by the first respondent in the year  2000  was
disposed on 02.11.2007. After referring to  the  Commission’s  communication
dated 15.06.1999,  the  learned  Single  Judge  observed  “the  Commission’s
letter of recommendation was inartistically worded.  It appears to  me  that
the Commission intended to recommend the two names against the  two  posts”.
Pointing out that the first respondent’s suitability was not  in  doubt  and
that she has been deprived of her appointment for  no  fault  of  hers,  the
learned  Single  Judge  allowed  the  writ  petition,  inter  alia,  issuing
directions as aforesaid.
13.   Before the Division Bench, Mr.  Yugul  Prasad,  counsel  appearing  on
behalf of the Commission submitted that  an  error  had  crept  in,  in  the
recommendation of the Commission. After referring to  this  submission,  the
Division Bench observed as under:
“…When the post is available the Commission was asked to rectify such  error
and in most of the cases the Commission has explained such  error  and  made
statement before this Hon’ble Court with regard to the  appointment  of  the
respondent-petitioner...”

Having said so, after referring  to  the  communication  of  the  Commission
dated 15.06.1999,  the Division Bench took the view that  the  name  of  Dr.
Siyaram Sharma was recommended for the first  post and  the  name  of  first
respondent was recommended for the second post.  The  communication  of  the
Commission dated 15.06.1999 clearly states that the first respondent’s  name
was recommended as second preference for the first post.
14.   Under Section 2(10) of the Act, the  Governing  Body  of  the  College
shall select for appointment from the names recommended by  the  Commission.
Thus, the Governing Body has the right  to  select  the  candidates  in  the
order of preference. But since two  posts  were  available,  the  Commission
ought to have recommended two plus two candidates. The  High  Court  rightly
observed that  the  Commission  had  violated  the  mandatory  provision  of
Section 2(9).  Since there was violation of the statutory provisions by  the
second respondent-Commission and going by the submission made on  behalf  of
the Commission before the High Court, the name of the  first  respondent  is
to be considered for the second post available.  She should not be  made  to
suffer injustice for no fault of her own.
15.   The first respondent’s suitability for appointment is  not  in  doubt;
instead of recommending  the  first  respondent  to  the  second  post,  the
Commission was not justified in recommending her name as  second  preference
for the first post and stopping at that.  The reasons are not far  to  seek.
In the second post available in the appellant-L.P. Shahi College  of  Labour
and Social Welfare, Dr. Ramdeo Prasad Sharma  (appellant  in  the  connected
matter i.e. in the appeal arising out of  SLP  (C)  No.  978  of  2012)  has
already been working temporarily in the  Department  of  Labour  and  Social
Welfare.  Even though the said Ramdeo Prasad Sharma applied  for  the  post,
his name was not recommended.  Be it noted that the said Dr.  Ramdeo  Prasad
Sharma has not challenged his non-selection by the Commission. In  violation
of Section 57A of  the  Bihar  State  Universities  Act,  appellant  College
continued Dr. Ramdeo Prasad Sharma in the said post which  is  in  violation
of the provisions of Bihar State Universities  Act.  Continuance  of  Ramdeo
Prasad Sharma in the post was improper, arbitrary and in  disregard  of  the
statutory provisions. The appellant-Ramdeo Prasad Sharma  is  said  to  have
retired at the age of superannuation in January, 2016 and that post  in  the
Department of Labour and Social Welfare is presently vacant.
16.   Since there was violation of  Section  2  (9)  of  the  Bihar  College
Service Commission Act,  1976  and  that  of  Section  57A  of  Bihar  State
Universities Act, the High Court  has  rightly  allowed  the  writ  petition
filed by the first respondent, inter  alia,  issuing  directions  as  stated
above. We do not find  any  reason  warranting  interference  with  impugned
judgment.
17.   In the result, both the appeals are dismissed.


                                                              ..……………………….J.
        [SHIVA KIRTI SINGH]


                                   ………………………..J.
        [R. BANUMATHI]
New Delhi;
October 05, 2016


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.