Krishna Mohan Singh vs The State Of Bihar
2022 Latest Caselaw 2545 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5424 of 2022
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1. Krishna Mohan Singh Son of Rajeshwar Prasad Singh, Resident of 2M/102, B.H. Colony, Karkarbagh, P.S.-Agamkuan, District-Patna.

2. Maya Nand Son of Indra Kumar Prasad Resident of Mohalla Ataullahpur, P.S. Lalganj, District Vaishali.

3. Sanjeev Kumar Son of Sunil Kumar Resident of Village Raykaran Bigha, P.S. Aungari, District Nalanda.

4. Paras Nath Yadav Son of Ramanand Yadav Resident of Village-Telkathua, P.S. M.H. Nagar Hussainpura, District-Bihar.

5. Saket Kumar Son of Arvind Singh Resident of Village and Post-Chandpura Nankhar, P.S. Desari, District Vaishali.

6. Sriman Narayan Pathak Son of Deveshwar Pathak Resident of Radhakrishan Colony-3, Naya Chak, P.S. Ramkrishna Nagar, District Patna.

7. Vijay Kumar Son of Umashankar Singh Resident of Saran, P.S. Sasaram Nagar, District-Rohtas.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Education Department, Govt.

of Bihar, Patna.

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Bihar State Universities Service Commission through its Secretary, 8th Floor, BSEB, Academic Building, Marg, Patna.

4. The Secretary, Bihar State Universities Service Commission, 8th Floor, BSEB, Academic Building, Marg, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Y.V Giri, Sr. Adv., Mr.Sumit Kumar Jha, Adv.

For the State : Mr. Jitendra Kumar Roy 1 ( Sc 13 ) For respondent nos.

3 & 4 (BSUSC) : Mr. Pawan Kr. Choudhary, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA C.A.V. JUDGMENT

Date : 12 -05-2022

1. Heard the Parties.

Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

2. The petitioner by way of this writ petition

has prayed to issue a mandamus to the respondents

to adhere to Clause 5.5 of the Advertisement dated

21.09.2020 while filling up the vacancies on the post

of Assistant Professors of various subjects and

restrain the respondents from implementing

subsequent changes in the educational qualification

by way of resolution dated 14 th July, 2021 and

quashed the resolution dated 14th July, 2021 and also

set aside the Memorandum dated 22 nd July, 2021

issued by the Secretary, Bihar State University

Service Commission, Patna and also set aside all the

consequential action of the Commission.

3. Learned counsel for the petitioners has

submitted that the petitioners are candidates, who

have applied for the post of Assistant Professor as

Advertised by the Bihar State University Service

Commission (hereinafter referred to as the University

Commission) dated 21.09.2020. The qualifications

prescribed under the Advertisement is that a

candidate must possess 55% marks at Post-Graduate Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

level in the subject concerned and they must have

passed NET/BET/P.hd.

4. Learned counsel for the petitioners

submits that as per Clause 5.5. only experience of

those teachers would be valid, whose services have

been confirmed by the University Selection

Committee/ College Service Commission/ College

Selection Committee and thus any experience

gained by teachers on ad-hoc basis or as a guest

teachers ought not be counted.

5. Learned counsel has taken this Court to

Clause 7 of the Advertisement which provides the

selection process and the criteria for selection for

candidates for Interview has been provided in the

table under Clause 7.2 which provides that 10 marks

shall be reserved for teaching experience, 02 marks

for each year. Thus, teaching experience is material

for the purpose of counting the total marks for

eligibility to appear before the Interview Board.

6. Learned counsel submits that after the

selection process commenced, a three man

Committee resolved under the Chairmanship of Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

Professor Sri Rash Bihari Prasad Singh, that the

experience certificate issued by the head of the

Department/Principal/ Institute countersigned by the

Registrar of the respective University shall be valid

for awarding the marks for teaching experience in

accordance with the provisions of the Statutes. The

University Commission also accepted the said

suggestion and it is the contention of the learned

counsel for the petitioners that such decision goes

against the very interpretation of Clause 5.5. of the

Advertisement.

7. Learned counsel submits that this would

result in all the persons, who have taught in on ad-

hoc basis in the various Colleges to be allowed the

benefit of teaching experience, whereas in terms of

Clause 5.5. teaching experience has to be the

experience gained after regular appointment alone.

8. Learned counsel has submitted that the

Registrar of the Bhupendra Narayan Mandal

University has also objected to such inclusion of

candidates. He also submitted that the Registrar of Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

the Patna University has also objected to issuing of

certificate to guest faculties.

9. Learned Counsel submits that the

Committee of the three member could not have been

formed for the said purpose and as per Statutes for

the appointment of Assistant Professor in University

of Bihar, 2020, the Committee can only be formed

for examining the eligibility of candidates with

degree in concerned subject.

10. Learned counsel has also taken this

Court to the decision of Baba Saheb Bhim Rao

Ambedkar University, Lucknow, who has not allowed

guest faculties experience to be counted in case of

one candidate Mr. Saurav Chandra on the ground

that the same is not admissible as per Clause-10 of

the University Grant Commission Regulations, 2018.

11. Learned counsel submits that the

decision of the three member Committee is amounts

to changing the Rules of the game after the game

has already started.

12. In support thereof, he has relied on

(2001) 10 SCC page 51 (Maharashtra State Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

Road Transport Corporation & Ors. Vs.

Rajendra Bhimrao Mandve & Ors.) and (2005)

04 SCC page 154 (Secretary, A.P. Public Service

Commission Vrs. B. Swapna & Ors.).

13. I have considered the submissions, this

Court finds that as of now, the selection process is

not completed, no orders have been passed in favour

or against any candidate. No action has been taken

which can be said to have taken away the right of

the petitioners. In the opinion of this Court,

therefore, no cause of action has arisen to file the

present petition and the entire writ petition is based

on the decision taken by the three member

Committee.

14. Clause 5.5. of Advertisement reads as

under:-

"Only those teachers experience

shall be counted whose services has been

duly confirmed by the University Selection

Committee/ College Service Commission/

College Selection Committee."

Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

The decision taken by the three member

Committee only clarifies Clause 5.5. that the

experience certificate has to be issued by the head

of the Department/Principal/ Institute countersigned

by the Registrar of the respective University.

Thus, it cannot be said that the clarification

issued by the three member Committee is an

attempt to change the Rules of the game. Since the

Advertisement was silent as to how a certificate has

to be issued. The Committee could always issue a

clarification regarding the method and manner in

which certificate is required to be obtained. The

decision smoothens the selection process and leaves

no manner of doubt for any candidate as to what

nature of certificate would be required. Otherwise,

the language and signatories may be different from

different University which would create chaos. The

submission of the learned counsel, therefore, is

found to be without force and is rejected.

In view thereof, the law cited is also found to

be not applicable to the facts of the case. Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

15. The second question with regard to not

counting experience gained by the teachers working

as guest teacher or on ad hoc basis is no more res

integra.

In this regard, this Court notices that there

is no differentiation made amongst teachers in the

Advertisement.

In Asim Kumar Bose Vs. Union of India,

(1983) 1 SCC page 345, the question arose that for

the purpose of appointment as Assistant Professor,

whether the teaching experience gained by a

specialist in a teaching hospital in the capacity of an

Ex-officio Associate Professor would be counted

toward the requisite teaching experience. The

Supreme Court held as under:-

" 29. It is necessary to emphasise

that the recruitment rules nowhere provide

that the teaching experience gained by a

Specialist in a teaching hospital in the

capacity of an Associate Professor (ex officio)

shall not count toward the requisite teaching

experience. There is no provision made in the

Rules that the teaching experience must be Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

gained on a regular appointment. There is

hardly any difference so far as teaching

experience is concerned whether it is

acquired on regular appointment or as

Specialist in a teaching hospital with the ex

officio designation. As the statutory rules do

not provide that the teaching experience

gained in an ex officio capacity shall not

count toward the requisite teaching

experience, the teaching experience gained

by the appellant while holding the post of

Radiologist-cum-Associate Professor of

Radiology (ex officio) in the Irwin Hospital

cannot be ignored in determining his

eligibility for appointment as Professor or

Radiology in Maulana Azad Medical Collge."

34. ........................................

On a literal construction of these

Rules, the effect of these amendments

appears to be this. Normally, a Professor or

an Additional Professor in a medical college

or a teaching institution can be appointed by

direct recruitment from amongst persons

holding the post of Associate Professor or Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

Assistant Professor in the concerned

speciality in a medical college or a teaching

institution having at least six years' teaching

experience out of 12 years' standing in the

Grade through the Union Public Service

Commission. As Associate Professor in the

medical college or a teaching institution can

only be promoted from amongst persons

holding the post of Reader or Assistant

Professor having at least five years' teaching

experience in the concerned speciality by the

Departmental Promotion Committee. We are

inclined to the view that the word "as" in the

collocation of the words used "at least six

years' experience as Associate

Professor/Assistant Professor/Reader" in

paragraph 2 (b) and of the words "at least

five years' experience as Reader/Assistant

Professor" in paragraph 3 and sub-rule (2-A)

of Rule 8 must be interpreted in its ordinary

sense as meaning teaching experience

gained "in the capacity of". In Black's Law

Dictionary, 5th Edn., p. 104, the meaning of

the word "as" as given is : "Used as an Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

adverb, etc., means like, similar to, of the

same kind, in the same manner, in the

manner in which." In shorter Oxford

Dictionary, 3rd Edn., p. 111, the word "as" is

stated to mean: "The same as, in the

character, capacity, role of". In our view, the

Ministry of Health is apparently wrong in

assuming that the word "as" in paragraphs 2

(b) and 3 of Annexure 1 to the Second

Schedule and sub-rule (2-A) of Rule 8 makes

holding of post in the cadre a condition

precedent to the appointment of a Professor

or an Associate Professor."

16. In the case of Dr. Kumar Bar Das Vrs.

The Utkal University, AIR 1999 (SC) page 669

has held as under:-

"In our view, the opinion of the

experts in the Selection Committee must be

taken to be that the appellant's teaching and

research experience satisfied the above

condition of "about 10 years". In fact, the

Chancellor in his final order did not expressly

say that the period was not "about 10 Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

years", though such a view was expressed in

the show-cause notice. He merely stated that

award of 4 marks towards 'teaching

experience' was not justified. The appellant

did have teaching experience of 7 years 7

months and 14 days and Research experience

of 1 year 5 months and 14 days- in all 9 years

26 days and the Selection Committee gave

him 4 marks out of 10 on this score. Even

otherwise, if the view of the Chancellor was

that the experience must be a minimum of 10

years and therefore zero marks ought to

have been awarded to the appellant towards

'teaching experience' we cannot agree. That

would, in our view, amount to ignoring

altogether the words in the advertisement

'teaching and/or research experience' and to

exclude the period of 1 year 5 months and 14

days."

17. In view of above, the submission of

learned counsel that such a teaching experience

gained by the faculty members ought not be

considered, cannot be accepted. If the authorities Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

have issued experience certificate to the guest

teachers, counting their teaching experience as the

actual experience of teaching was fault can be

attributed. The very purpose of giving two marks for

each year of experience, is to obtain services of

those persons, who have actual experience of

teaching students. Thus, there is a nexus to the said

interpretation and Clause 5.5. does not in any

manner denies such experience to be counted. The

only aspect is that the factum of service of such a

teacher must be duly certified by the concerned

University Selection Committee/ College Service

Commission/College Selection Committee, which has

been clarified by the three member Commission is

that the certificate to be issued by the Principal to be

counter-signed by the Registrar.

18. The contention of learned counsel is that

the guest faculties experience has not been counted

in relation to one candidate, who applied for

appointment at the Central University namely Baba

Saheb Bhim Rao Ambedkar University at Lucknow on Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

the basis of draft regulations of University Grant

Commission, 2018.

Suffice it to say that this Court would not

attempt to give a seal of approval or dis-approval to

such a course adopted as it is not before this Court.

However, it is to be noticed that the University Grant

Commission Regulation, 2018 is a Draft regulation

and have not come into force as yet. On the basis of

draft regulations, the petitioners can not claim that

the said teaching experience is not required to be

counted. The draft regulations are still required to be

confirmed by the University Grant Commission. Such

regulations would of course have to be in

consonance with the interpretation laid down by the

Apex Court from time to time as noticed

hereinabove. They are not enforceable as of now.

19. Keeping in view the aforesaid discussion,

I do not find any reasons to interfere with the

method and manner of selection process being

conducted by the University Commission and no

interference is warranted.

Patna High Court CWJC No.5424 of 2022 dt.12-05-2022

20. The submission raised by the learned

counsel therefore, fails. Accordingly, the writ petition

is found to be devoid of merits and is accordingly

dismissed.

(Sanjeev Prakash Sharma, J) pravinkumar/-

AFR/NAFR                A.F.R.
CAV DATE                19.04.2022
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