GOV.BODY,L.P SHAHI COLLEGE, PATNA & ANR Vs. SEEMA MISHRA AND ORS

Tags Appointment Interpretation

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 10010 of 2016, Judgment Date: Oct 05, 2016

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

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