Dr.Ram Krishna Pandey Paramha vs The State Of Bihar And Ors
2023 Latest Caselaw 2423 Patna

                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                                  Civil Writ Jurisdiction Case No.7706 of 2011
                  ======================================================

1. DR. RAM KRISHNA PANDEY PARAMHANS, son of Late Achyutanand Pandey, R/O Village-Bath, PO-Bath, PS-Bath, District-Bhagalpur.

2. DR. UDAY SHANKAR PANDEY, son of Late Vishnudev Pandey, R/O Village-Hathwa, PS-Mirganj, District-Gopalganj.

... ... Petitioner/s Versus

1. THE STATE OF BIHAR through the Principal Secretary, Human Resources Development Department, Bihar, Patna.

2. Secretary, Human Resources Development Department, Bihar, Patna

3. The Director, Higher Education, Bihar, Patna.

4. Kameshwar Singh Darbhanga Sanskrit University, Darbhanga through its Regisrar.

5. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga

6. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga

7. Shri Dilip Kumar Jha, Reader, Department of Dharma Shastra, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga.

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

                  For the Petitioner/s     :     Mr. Abhinav Srivastava, Advocate
                  For the University       :     Mr. Binay Kumar Singh,
                                                 Mr. Ravi Nandan, Advocates.
                  For Respondent No.7      :     Mr. Durga Nand Jha, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA CAV/ORDER/ JUDGMENT

15 16-05-2023 Heard the parties.

2. Two petitioners have challenged the appointment

of Respondent No. 7 with a prayer for quashing the appointment

Notification dated 02.03.2009 (Annexure-3) whereby

Respondent No. 7 has been appointed on the post of Reader in

the subject of Dharma Shastra at Kameshwar Singh Darbhanga

Sanskrit University, Darbhanga (in short 'KSDS University')

pursuant to Advertisement No. 1/2008 issued by the University.

3. By Advertisement No. 1/2008, 'KSDS University'

had invited application for appointment on two posts of Reader

in the subject of Dharma Shastra in the PG Department. One Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

post was reserved for General category candidate and one post

was for Extremely Backward Class. The eligibility criteria for

appointment of Reader as per advertisement was (a) Good

academic record with Doctoral Degree or equivalent published

work. In addition to these, candidates who join outside the

University system, shall also possess at least 55% of the marks

or an equivalent grade of B in the 7 point scale with letter grade

O, A, B, C, D, E and F at the Aacharya's/master's degree level

in the relevant Traditional subject, (b) Five years of experience

of teaching and/or research excluding the period spent for

obtaining the research degree and has made some mark in the

areas of scholarship as evidenced by quality of publications,

contribution to education innovation, design of new courses and

curricula. (c) provided that the teaching and/or reserch

experience as required for direct recruitment of Professor,

Reader and Principal must have been obtained by the candidate

after being appointed by the competent authority and as per the

rules of the institution concerned.

4. The appointment of Respondent No.7 has been

challenged on the grounds that the appointment suffers from

gross irregularity/illegality and has been made in blatant

violation of provisions as contained under Section 57(1) of the Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

Bihar State Universities Act, 1976 (hereinafter referred to as

'the Universities Act), as amended and also the Statute framed

under Section 57B of the Universities Act. The Respondent

No.7 does not fulfill minimum educational qualification nor has

requisite teaching experience in the subject of Dharma Shastra

for appointment against the post of Reader in Dharma Shastra

under the University. The petitioners claimed that they fulfilled

the eligibility criteria as prescribed in the advertisement for

appointment on the post of Reader in the subject of Dharma

Shastra and applied in the prescribed manner within the

stipulated time frame.

5. Mr. Abhinav Srivastava, learned counsel

appearing for the petitioners submits that the Selection

Committee was not constituted as per the provisions of Section

57(1) of the Universities Act inasmuch as three experts in the

Selection Committee were to be nominated by the Vice

Chancellor from the panel of names approved by the Academic

Council in terms of Statute framed in this regard for each post,

out of which, at least one member should belong to SC/ST and

two shall be from the outside the State but in the instant case

one Sri Rameshwar Das, Professor, Department of Ved, Lal

Bahadur Shastri Vidyapith, New Delhi was also one of the Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

members of the Selection Committee as an expert whereas his

name did not figure in the ten names approved by the Academic

Council of the University and thus, on this score alone, the

entire selection process with respect to appointment against the

post of Reader stands vitiated. He further argued that as per

Section 57(1) (ii) of the Universities Act, the Selection

Committee was required to prepare a merit list from amongst

the eligible candidates and make recommendation of their

appointment according to the merit but in the present case

neither merit list was prepared nor any recommendation was

made. Further, the signature of the head of the Department of

Dharma Shastra of the University is not there whose presence is

required in the Selection Committee as per Section 57(1) of the

Universities Act.

6. The main thrust of the argument of learned for the

petitioner is that the Respondent No.7 has been appointed

against the post of Reader in Dharma Shastra at P.G.

Department but the Respondent No.7 does not have the requisite

experience of teaching in the subject of Dharma Shastra and

also does not possess Ph.D qualification as prescribed under

eligibility criteria for a Reader under the Advertisement.

Respondent No.7's teaching experience is not in Dharma Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

Shastra and his Ph.D is in Jyotish and not in Dharma Shastra

and on the contrary, the petitioners fulfill the eligibility criteria

and is having 15 years experience in Dharma Shastra and Ph.D.

He also submits that Respondent No.7 was teaching the subject

of Jyotish at the College and also did his Ph.D in Jyotish.

Learned counsel referred to the application of Respondent No.7

which has been annexed as Annexure A/7 to the counter

affidavit filed by the Respondent No.7.

7. Respondent No.4 to 6 i.e., 'KSDS University' filed

two counter affidavits. In the first counter affidavit, it has been

stated that petitioner no.2 does not have work experience as

Reader at Sri Chhatradhari Sanskrit College, Hathua, Gopalganj

as there is no post of Reader in subject of Dharma Shastra in the

said College and so far as petitioner no.1 is concerned, he is not

having the requisite qualification as well as experience and has

not passed the NET examination and has shown the teaching

experience in the subject of 'Vyakaran' in the affiliated college

having no experience of teaching in 'Acharya' Class. The

Selection Committee was duly constituted consisting of

renowned scholars and five candidates including the petitioners

appeared before the interview board and after considering the

inter se merit of all the candidates, the Respondent No.7 was Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

appointed on the post of Reader, he is having all the required

qualification and experience for the post of Reader and has

passed 'Acharya' Exmination in Dharma Shastra subject with

70% marks and has also passed NET examination, got Ph.D and

D.LIT degree and more than fifteen research woks/books have

been published. Respondent No. 7 is having teaching experience

of more than 16 years and has experience of 'Acharya' Classes

also.

8. The petitioners took calculative chance and

participated in selection process and after being unsuccessful,

they turn around and challenged the constitution of Selection

Committee which is not permissible in view of settled principle

of law. The appointment of Respondent No.7 was challenged

before this Court in CWJC No. 5509/2009 which was dismissed

as withdrawn by order dated 15.04.2010.

9. In the supplementary counter affidavit, almost the

statement made in the first counter affidavit has been reiterated

with further addition that at the time of appointment Respondent

No.7, possessed experience in relevant traditional subject and

has also fulfilled all other necessary requirements of

appointment and prior to the appointment of Dr. Dilip Kumar

Jha, Respondent No.7 was having experience of teaching in PG Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

Department also.

10. In the counter affidavit filed by Respondent

No.7, it has been stated that writ application has been filed after

delay of more than two years on 27.04.2011 whereas

appointment of the Respondent No.7 was made on 02.03.2009.

An objection of alternative remedy available to the writ

petitioners has also been taken and submitted that any action of

the University is amenable/appealable before the Hon'ble

Chancellor being the appellate authority under the 'Universities

Act' but the petitioners without exhausting the remedy before

the Hon'ble Chancellor has directly approached this Court.

11. Learned counsel appearing for Respondent No.7

as well as learned counsel for Respondent 4 to 6 argued that

there is no illegality or irregularity in the selection process and

the Respondent No.7 was appointed by the Selection Committee

after being satisfied about his educational qualifications,

teaching experience and other eligibility criteria. Respondent

No.7 has now been promoted to the post of Professor and the

post has been confirmed and continuity of the service has been

granted under Section 57(1) of 'the Universities Act'. The

Academic Council in its meeting held on 07.12.2007 vide

Programme No. 1(chha) approved eight names of experts in the Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

subject Dharm Shastra and in view of subsequent amendment of

the Statue, two further names were approved by the Council in

its meeting held on 13.12.2008 vide Programme No.4 (Chha) to

complete the panel of ten experts and thus, the Selection

Committee was properly constituted. The petitioners have no

teaching experience and they do not fulfill the eligibility criteria

as per the advertisement. As such, they cannot raise a question

that they have been discriminated. Hence, they cannot invoke

jurisdiction of this Court under Article 226 of the Constitution

of India.

12. The contention of the petitioner that no merit list

was prepared and no recommendation of the Selection

Committee was made for appointment is also not correct

inasmuch as all the six candidates including the petitioners were

awarded marks by the Selection Committee which would be

evident from para-9 of the supplementary counter affidavit and

HOD had also participated in the selection and had awarded

marks to all the six candidates.

13. Lastly, it has been argued that the petitioners,

having consciously participated in selection process, cannot turn

around and challenge the same. They participated in the

interview and after being unsuccessful in the final selection, it is Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

not open for the petitioners to challenge the entire selection

process and the final select list.

14. In reply, learned counsel for the petitioners

submits that the writ application which was filed and the same

was dismissed as withdrawn was not filed by the petitioners

who are aggrieved party but the same was filed by Student

Federation of India and was dismissed as withdrawn. Therefore,

principle of constructive res judicata shall not apply against the

petitioners in the present facts of the case.

15. I have heard learned counsel for the parties and

gone through the materials on record. The petitioners have

challenged the order of appointment issued by the University in

favour of Respondent No.7 on two grounds, first; the Selection

Committee was not constituted properly and second;

Respondent No.7 does not have requisite qualification and

experience for appointment. Both the grounds taken by the

petitioners have been denied by the Respondent No.7 who has

claimed that the Selection Committee was duly constituted and

Respondent No.7 was having requisite qualification and

experience as prescribed under advertisement for appointment

of Reader in PG Department of the University in the subject of

Dharm Shastra.

Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

16. In Annexure-1, which is Advertisement

No.01/2008, the eligibility criteria, in a nutshell, is that the first

criteria is a good academic record with Doctoral Degree or

equivalent published work. In addition to these, candidates who

join outside the University system, has to possess at least 55%

of the marks or an equivalent grade of B in the 7 point scale

with letter grade O, A, B, C, D, E and F at the

Aacharya's/master's degree level in the relevant Traditional

Subject. Secondly, Five years of experience of teaching and/or

research excluding the period spent for obtaining the research

degree and has made some mark in the areas of scholarship as

evidenced by quality of publications, contribution to educational

innovation, design of new courses and curricula. Thirdly, the

teaching and/or research experience as required for direct

recruitment of Professor, Reader and Principal must have been

obtained by the candidate after being appointed by the

competent authority and as per the rules of the institution

concerned.

17. The Respondent No.7 claims to have teaching

experience, Ph.D degree and about 12 publications of research

work to his credit prior to the advertisement. The eligibility

condition (1) says 'a good academic record with Doctoral Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

Degree or equivalent published work', (2) says, ' Five years of

experience of teaching and/or research' and condition (3) says,

that the teaching and research must have been obtained by the

candidates after being appointed by the competent authority.

Prima facie, the terms of advertisement prescribes good

academic record with Doctoral Degree or equivalent published

work, teaching experience and/or research. The respondent

No.7 in the application form has mentioned his qualification of

Aacharya in Dharm Shastra along with teaching experience and

research work.

18. The three criteria mentioned in the advertisement

with Doctoral Degree or equivalent published work, teaching

experience and/or research including the teaching and research

obtained by the candidate after being appointed by the

competent authority can adequately be appreciated by the

Hon'ble Chancellor keeping in mind the nature of appointment

and the qualification and eligibility required with equivalent

published work in the Traditional subject. As per Section 9 of

the 'Universities Act' the Hon'ble Chancellor is the head of the

University and sub-section 4 of Section 9 prescribes that the

Chancellor may, by order in writing annul any proceeding or

order of the University which is not in conformity with this Act, Patna High Court CWJC No.7706 of 2011 dt.16-05-2023

Statutes, Ordinance or the Regulation for which adequate reason

is lacking. In my opinion, the Chancellor being the head of the

University shall be in a better position to appreciate the

eligibility criteria/terms of the advertisement for appointment of

Reader on a Traditional subject of Dharma Shastra including the

equivalent criteria. Accordingly, I feel it expedient to direct the

petitioners to challenge the impugned order of appointment of

Respondent No.7 dated 02.03.2009 on the post of Reader in the

subject of Dharma Shastra at Kameshwar Singh Darbhanga

Sanskrit University, Darbhanga, before the Hon'ble Chancellor.

19. If any appeal/challenge is made by the petitioner

before the Hon'ble Chancellor, the Hon'ble Chancellor is

requested to dispose the same in accordance with law by a

reasoned order after giving opportunity of hearing to all

concerned including Respondent No.7 within a period of four

months from the date of filing of the appeal.

20. With the above direction and observations, this

writ application stands disposed of.

                                                            (Anil Kumar Sinha, J)
  Md.Perwez Alam

AFR/NAFR                AFR
CAV DATE                18.04.2023
Uploading Date          16.05.2023
Transmission Date