Jharkhand High Court

Asit Kumar Tewary vs The State Of Jharkhand on 30 November, 2021

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                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     W.P. (S) No. 962 of 2021


             Asit Kumar Tewary                                         ...        ...Petitioner
                                    -Versus-
             1. The State of Jharkhand, through the             Principal Secretary, Department of
                  Higher, Technical Education & Skill Development, Government of Jharkhand,
                  Yojana Bhawan, Nepal House, Doranda, Ranchi
             2. The Director, Department of Higher, Technical Education & Skill Development,
                  Government of Jharkhand, Yojana Bhawan, Nepal House, Doranda, Ranchi
             3. Binod Bihari Mahto Koylanchal University through its Registrar, Government
                  Polytechnic Road, Dhanbad
             4. The Registrar, Binod Bihari Mahto Koylanchal University, Government
                  Polytechnic Road, Dhanbad
             5. The Vice Chancellor, Binod Bihari Mahto Koylanchal University, Government
                  Polytechnic Road, Dhanbad
             6. Sri A.K. Maji, office at Bokaro Steel City College, Section 6/C, Sector VI,
                  Bokaro Steel City, Bokaro                            ...        ...Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK

For the Petitioner :Mr. Baibhaw Gahlaut, Advocate.

             For the Respondent-University                    : Mr. A.K.Mehta, Advocate
             For the Resp.No.6                                : Mr. Anjani Nand Singh, Advocate
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05/ 30.11.2021:        The petitioner has approached this Court for quashing part of Notification

(No.BBMKU/R/93/21) dated 01.02.2021 (Annexure-3A) issued by the Registrar, Binod Bihari Mahto Koylanchal University, Dhanbad, wherein the respondent No.6, who is around fourteen years junior to the petitioner has been appointed as the Principal-In-Charge of Bokaro Steel City College, Bokaro ignoring the fact that the petitioner (being the senior most teacher of Bokaro Steel City College) was handed over charge of the Principal of Bokaro Steel City College on 01.02.2021 by the then Principal. Further, prayer has been made for a direction upon the respondents particularly Respondent No.4 & 5 to appoint the petitioner (being the senior most teacher of Bokaro Steel City College) as the Principal-In-Charge of Bokaro Steel City College.

2. The case of the petitioner lies in a narrow compass. The petitioner joined as Lecturer on 20.01.1982 in the Dept. of Commerce in J.J. College, Jhumritilaiya. Later on, in compliance of the Notification of the Ranchi University, he joined as a Lecturer in Bokaro Steel City College on 06.02.1983, since then

he is continuing in the said College. The petitioner was granted promotion to the post of Associate Professor w.e.f. 20.01.1992 on the recommendation of the Jharkhand Public Service Commission. The petitioner has effectively discharged the responsibilities that have been bestowed to him from time to time by the University such as Bursar of the said College, Assistant Co-ordinator of Nalanda Open University and also the responsibilities of Principal-In-Charge and there has been no complaint, whatsoever against the petitioner with respect to discharge of his responsibilities. It is specific case of the petitioner that on 01.02.2021, when the then Principal, Bokaro Steel City College superannuated, on the oral instructions of the Registrar, Bihar Mahto Koylanchal University, Dhanbad, handed over charge of the Principal of the said college to the petitioner, being the senior most teacher of the said College. However, to the utter surprise of the petitioner, vide Notification No. BMKU/R/93/21 dated 01.02.2021 issued under the signature of the Registrar, Binod Bihari Mahto, Koylanchal University, Dhanbad, the respondent No.6, who is around 14 years junior to the petitioner has been appointed as the Principal-In-Charge of Bokaro Steel City College, Bokaro. Aggrieved by the same, the petitioner wrote letter to the Registrar, Binod Bihar Mahto Koylanchal University with a request to appoint him as Principal-in-Charge of Bokaro Steel City College and also before the Principal Secretary, Department of Higher, Technical Education & Skill Development, Government of Jharkhand on 09.02.2021, but the respondents are sitting tight over the matter. Hence, the petitioner has been constrained to knock the door of this Court.

3. Mr. Baibhaw Gahlaut, learned counsel for the petitioner submits that a person, who is 14 years junior to the petitioner has been appointed as Principal-in-Charge of Bokaro Steel City College, ignoring the facts the petitioner is the senior most teacher of Bokaro, Steel City College, which is arbitrary and dehors the rules. The petitioner has effectively discharged the responsibilities that have been bestowed on him from time to time by the University. The petitioner is the senior most teacher of Bokaro Steel City College, who was appointed on 12.01.1982, whereas, the respondent No. 6 was appointed on 19.11.1996 as his substantive date of appointment and as such, the University was bound to follow the rule of seniority in appointment of the Principal-In-Charge. He further submits that while making ad-hoc appointment or In-charge to a higher post, senior most person is to get the said benefit and as such, the Notification dated 01.02.2021 issued by the Registrar, Binod Bihar Mahto Koylanchal Unviersity, Dhanbad is contradictory to the established legal position and constitutional mandate and as such, same is liable to be quashed and set aside. The decision of the Vice- Chancellor, Binod Bihar Mahto Koylanchal University, Dhanbad demolished the right of the petitioner to be appointed as Principal-in-Charge. Although the Vice-

Chancellor has power to appoint the Principal I/C of the Colleges under its jurisdiction, but he cannot arbitrarily exercise the powers vested in him under the Statute. Learned counsel further argues that during the pendency of the writ petition, the petitioner was appointed as Dean, Faculty of Commerce & Head, University Department of Commerce, BBMKU, Dhanbad, but the petitioner refused to join the said post and as such, requested the Vice Chancellor, BBMKU, Dhanbad to revoke his appointment as Dean, Faculty of Commerce & Head, University Department of Commerce, BBMKU, Dhanbad and further to allow him to continue as an Associate Professor in the Bokaro Steel City College, Bokaro.

4. To buttress his argument, learned counsel for the petitioner placed heavy reliance on the following judgments of Hon'ble Patna High Court :

I. Ashok Kumar Ojha Vs State of Bihar1.

II. Jaibir Mishra Vs. L. N. Mithila University & Ors.2.

5. Per contra counter-affidavits have been filed.

6. Mr. A.K. Mehta, learned counsel appeared on behalf of the respondent Nos. 3 to 5 and submits that there is no illegality or infirmity in the impugned Notification dated 01.02.2021 as by the said Notification, the respondent No.6 has been transferred and posted as Principal In Charge, Bokaro Steel City College, Bokaro (an equivalent post)by the orders of the Vice Chancellor, BBMKU, Dhanbad. He draws the attention of the Court towards Section 10(14) of the University Act, which confers power upon the Vice Chancellor to transfer and post a teaching/non-teaching employee of the University to an equivalent post. The respondent No.6 before his transfer, working and posted as Principal Incharge, K.B. College, Bermo and now, posted as Principal In Charge, Bokaro Steel City College, Bokaro and as such, the respondent No.6 has been transferred to an equivalent post of Principal Incharge, Bokaro Steel City College, Bokaro by the impugned Notification dated 01.02.2021 and he has joined and is occupying the said post from the date of issuance of the said Notification. The Vice Chancellor has been vested with the power and jurisdiction to transfer and post a University Employee to an equivalent post and by invoking his power under Section 10(14) of the JSU Act, the respondent No.6 was transferred from the post of Principal In- Charge, K.B. College, Bermo to Principal In Charge, B.S. City College, Bokaro.

The argument advanced by the learned counsel for the petitioner that the petitioner is senior most teacher of the College and as such, he has a legal right to be appointed as the Principal In Charge of the College is fallacious as the respondent No.6 has been transferred to an equivalent post. To buttress his argument, learned counsel for the respondents Nos.3 to 5 placed heavy reliance

(2005) 3 PLJR 133

(1987) 0 PLJR 838

on the reported judgment of Hon'ble Supreme Court in the case of Vice Chancellor, L.N. Mithila University Vs. Dayanand Jha3. In view of the judgment of the Hon'ble Apex Court in the said case, the petitioner has no case as he has not been superseded by the respondent No.6.

07. Be that as it may, having gone through the rival submissions of the parties, it appears that admittedly, the petitioner is senior to the respondent No.6 in the said College. The appointment to the post of Principal was not a regular appointment rather it is on Incharge basis and respondent No.6 has been appointed as Incharge Principal by the Vice Chancellor of the University by invoking power conferred to him under Section 10(14) of the of the University Act, wherein it is stipulated that the Vice Chancellor can transfer and post a teaching/non-teaching employee of the University to an equivalent post as argued by the learned counsel for the respondent-University and the same is not in dispute. Law is well settled that the statutory powers are to be exercised very sparingly and with cautious. Section 10(14) of the University Act does not talk about appointment on Incharge Basis. Admittedly, the petitioner is 14 years senior to the respondent No.6, who has been made Incharge Principal of the said College and as such, the senior has been forced to work under a junior. It is not a case that by way of an open advertisement the respondent No.6, though 14 years junior to the petitioner, has been appointed as an Principal of the said College, if that have been the case, the matter would have been entirely different. The Vice Chancellor of the University is also aware that he is posting respondent No.6 as Incharge Principal in a College, where the senior to that person will be under pressure to work under a junior. The rule of seniority in appointment of the Incharge Principal was to be strictly followed by the Vice Chancellor/Registrar of the University and as such, it can be comfortably said that Notification dated 01.02.2021 issued by the Registrar, BBMKU, Dhanbad wherein respondent No.6 has been appointed as Principal-In-Charge of Bokaro Steel City College, Bokaro is contrary to the established legal proposition of law. The Vice Chancellor cannot be permitted to exercise his jurisdiction/powers in an illegal and arbitrary manner. By appointing the petitioner as Dean, Faculty of Commerce & Head, University Department of Commerce, BBMKU, Dhanbad, the respondents have tried to lure the petitioner. There is no complaint of mal-administration or of any deficiency in the petitioner.

08. The appointment of a Principal of the College has to be on recommendation of the State Public Service Commission. In the instant case, the appointment of the respondent No.6 has not been done on the recommendation of the Commission and as such, appointment is to be taken as Ad hoc or

(1986) 3 SCC 7

provisional or Incharge basis. The respondent No.6 has no right to be appointed or to continue as an Incharge Principal of the said College. The submission of the learned counsel for the respondents that the respondent No.6 has been appointed by the Order of the Vice Chancellor, exercising the power under Section 10(14) of the University is completely fallacious and misconceived. The statutory modality had not been followed in appointment to the post of Incharge Principal of the said College as even in the case of appointment on ad hoc /provisional/incharge basis, the appointment of a person, who is junior to the petitioner dehors the rules cannot be countenanced. The petitioner was ex-facie senior to the respondent No.6. In plethora of judgments, it has been held that office of the Principal brings an amount of respectability as head of the institution and as such, there is no justification for placing the petitioner below respondent No.6. Similar issue fell for consideration before the Hon'ble Division Bench of Patna High Court in case of Jaibir Mishra (supra), wherein it was held thus:-

"9. xxxx .. If an Ad-hoc appointment is to be made, the senior most must get the adhoc appointment. There is no justification for placing the petitioner below respondent No.3, if annexure-1 is not quashed. This must be so for the reason that the appointment of respondent No.3 also must be held to be Ad-hoc as he has not been appointed in accordance with the Statute."

09. The same view was reiterated by the Hon'ble Patna High Court in case of Ashok Kumar Ojha (supra), it has been held thus:

9. Having considered the rival submission, I find substance in the submission of Mr. Sinha. In the light of the order of this court, a gradation list was published in which undisputedly, the name of the petitioner is at Sr. No.1, whereas that of respondent No.7 is at Sr. No.4. Said gradation list has not been quashed by the Court in the writ application filed by the respondent No.7 and the direction is to prepare final gradation list afresh. Till date, such a list has not been prepared and the name, of respondent No.7 has not been placed above the petitioner in the gradation list. In the absence thereof, respondents ought to have acted on the basis of the gradation list published earlier in which the name of the petitioner is undisputedly above respondent No.7.

10. In view of the decision of this Court in the case of Dr. Ashdeo Upadhyay and Jaibir Mishra(supra), I am of the opinion that while making ad-hoc appointment or incharge to a higher post, senior most person is to get the said benefit unless an exceptional case is made out to deviate from this principle. Nothing has been brought on record

to show that the petitioner, on any other count, is not fit to be appointed as the Incharge Principal. In that view of the matter, the action of the respondents in appointing respondent No.7 as the Incharge Principal, cannot be sustained. The respondent are directed to consider the case of the petitioner for appointment as the Incharge Principal of the College, within six weeks from today.

09. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order being part of Notification (No.BBMKU/R/93/21) dated 01.02.2021 (Annexure-3A) is mala fide in law as the same is in contravention of the provision of Article 14 & 16 (2) of the Constitution of India and as such, impugned order so far it relates to the present parties is held to be arbitrary and as such, is hereby quashed and set aside. However, the Vice Chancellor is at liberty to post the respondent No.6 to his equivalent post anywhere in the University/College, but not to a place where he stands junior to other teachers/Associate Professor.

10. The ad hoc appointment / Incharge Basis appointment is deprecated by this Court. In several Orders, this Court has held that Incharge/Ad hoc appointment cannot be permitted to be continued for a long and even in such appointments, merit and seniority has to be considered and same cannot be done dehors the Rules. The respondents are directed to stop appointments on In charge /Ad hoc basis and go for regular appointment, so that chaos is not created in the State. Favoritism and nepotism in such appointments cannot be ruled out and should be given a go bye. The act of the University is not praise worthy. Section 10(14) does not confirms an absolute right to the Vice Chancellor for making appointment of juniors on Adhoc or Incharge Basis.

11. As a result of quashment of impugned order, the respondents are directed to appoint the petitioner as Incharge Principal in the said College till regular appointment is made as he is senior most Associate Professor/Teacher. Since the petitioner is going to superannuate in the Month of December, 2021 itself, the entire exercise shall be completed within a period of two weeks from today.