Patna High Court
Mohd Gholam UmarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- RITESH KUMAR
Holding
The court held that the petitioner must be appointed as Assistant Professor and the writ petition is allowed.
Summary
The petitioner, recommended by the Bihar Public Service Commission for an Assistant Professor post in Persian at Patna University, filed a writ petition seeking a mandamus for his appointment and certiorari to quash letters that cited rationalisation of posts as a reason for non‑appointment. The University and State authorities argued that due to rationalisation only three of six sanctioned posts remained vacant, and the petitioner was second on the merit list, thus not eligible. The court examined the applicability of Section 35 of the Universities Act, 1976, which requires State Government sanction for creation of posts, and considered whether the Director of Higher Education’s directions sufficed as such sanction. It found that the University’s refusal was unlawful, the Director’s letters effectively provided the required approval, and the petitioner was entitled to the appointment. Consequently, the court directed the University to appoint the petitioner without delay and ordered the State to ensure salary and benefits, allowing the writ petition.
Issues considered
- Whether the petitioner is entitled to appointment as Assistant Professor despite the rationalisation of posts and reduced vacancies.
- Whether the University and State authorities acted ultra vires by not appointing the petitioner in violation of Section 35 of the Universities Act, 1976.
- Whether a writ of mandamus can be issued directing the University to make the appointment.
- Whether the directions issued by the Director, Higher Education constitute the necessary State Government sanction for the appointment.
Legislation cited
- Public Demands Recovery Act, 1914
- Right to Information Act, 2005
- Universities Act, 1976 — s. 35
Subjects
- appointment
- assistant professor
- university
- mandamus
- certiorari
- rationalisation
- vacancy
- Bihar Public Service Commission
- Section 35
- Universities Act
- Right to Information Act
- seniority
- salary
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1171 of 2023
======================================================
Mohd Gholam Umar Son of Mohd Matiur Rahman, Resident of Mohalla-
Naya Tola Talayabpur Rajwanpur, Police Station-Ballabelowan, District-
Katihar.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Education Department,
Government of Bihar, Patna.
2. The Principal Secreary, Education Department, Government of Bihar, Patna.
3. The Director, Higher Education, Bihar Patna.
4. The Patna University through its Registrar, Ashok Raj Path, Patna.
5. The Vice Chancellor, Patna Universi, Ashok Rajpath Patna.
6. The Bihar Public Service Commission through its Secretary, Bailey Road
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Anand Ojha, Sr. Advocate
Mr.Ashok Kumar Karna, Advocate
Mr.Abhishek Raj, Advocate
Ms.Somya, Advocate
For the BPSC : Mr.Sanjay Pandey, Advocate
Mr.Nishan Kumar Jha, Advocate
Mr.Prabhakar Pahapur, Advocate
For the Patna University : Mr.Mrigank Mauli, Sr. Advocate
For the Respondent/s : Mr.Prabhakar Jha ( GP- 27 )
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 15-05-2026
Heard the learned counsel for the parties.
2. The petitioner has filed the writ petition for the
following reliefs:-
“(i) Issuance of writ in nature of
mandamus to appoint the Petitioner on the
post of Assistant Professor in the Patna
University in Persian subject in connection
Patna High Court CWJC No.1171 of 2023 dt.15-05-2026
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with Advertisement No. 47/2014 issued by
the Bihar Public Service Commission, Patna
as the Bihar Public service Commission had
recommended the name of the Petitioner for
appointment on post of Assistant Professor in
Persian subject in Patna University after
declaring the result and the Patna University
had also completed the Counseling of the
Petitioner on 29.07.2022 against the 2 vacant
post of Assistant Professor in General
category in Persian subject for appointment.
(ii) Issuance of writ in the nature
of certiorari to quash the Letter No. G/2581
dated 10.09.2022 issued by the Registrar,
Patna University, Patna by which the Patna
University had sought guidelines from the
Director Higher Education, Bihar with
remarks that due to rationalization of seats in
Persian subject the post of Persian subject
became less vacant i.e. only 3 vacant post,
whereas earlier requisition for 4 post in
Persian subject had been sent by the Patna
University itself before Bihar Public service
Commission, Patna and the Bihar Public
Service Commission, Patna had allotted the
post of Assistant Professor to the Petitioner in
Persian subject in Patna University with
recommendation.
(iii) Issuance of writ in nature of
certiorari to quash the Letter No. 3691 dated
01.12.2022 issued by the Director, Higher
Education, Bihar Patna by which the
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Education Department Government of Bihar
had directed the Patna University to appoint
the candidates against only three post in
Persian subject whereas the Director, Higher
education Bihar had itself earlier forwarded
the recommendation of BPSC and directed
the Patna University to conduct the
counseling of the concerned candidates
including the Petitioner against the 4 vacant
post (out of 4 vacant posts 2 vacant posts in
General category) and to appoint them.”
3. During course of hearing, a counter affidavit was
filed on behalf of the respondents no. 2 and 3 on 17.10.2023
whereby in paragraph no. 8, it was stated that the Commission
recommended the name of four persons, including the name of
the petitioner for the Patna University, Patna for appointment for
the post of Assistant Professor in Persian subject after almost
eight years from the date of advertisement. However, due to
rationalization process in the University conducted during these
eight years, the post in Persian subject in the University, has
been reduced to total 8 seats and only 3 seats are vacant. It has
further been mentioned that there is no post available in the
Patna University, Patna for accommodating the petitioner
against the recommended post of Assistant Professor in the
Persian subject, hence he has not been appointed by the said
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University.
4. A counter affidavit has also been filed on behalf of
the Patna University on 09.05.2024, wherein the same stand has
been taken that in view of rationalization, the petitioner could
not be appointed. It further appears that a rejoinder to the
counter affidavit was filed on behalf of the petitioner wherein it
was stated that vide letter no. 788 dated 31.03.2022 issued under
the signature of the Director, Higher Education, Government of
Bihar, Patna, the recommendation of B.P.S.C was sent to the
Patna University for appointment of the petitioner in Persian
subject in General category. In view of the directions of the
Director, Higher Education, the Registrar, University called the
petitioner vide letter no. 2161 dated 21.07.2022 for appearing
in counseling on 29.07.2022. The petitioner appeared for
counseling on 29.07.2022, in the light of the directions of the
Registrar, Patna University and despite that, the appointment
letter was not issued to the petitioner. The University sought for
guideline from the Director, Higher Education, vide letter no.
2581 dated 10.09.2022, about the appointment of the petitioner
in the Persian subject, with a remark that due to rationalization
of the Persian subject the sanctioned strength of post in Persian
subject became only 06 and out of 06 posts, only 03 posts are
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vacant, in which only 01 post is vacant in General category.
Vide letter no. 3691 dated 01.12.2022, the Director, Higher
Education, Government of Bihar, Patna directed the Registrar,
Patna University to make appointment against only 03 vacant
posts, as per the category. The Patna University made
appointment against only 01 vacant post, in General category, to
the candidate who secured first position in the merit list, as he
has also made preference of the Patna University. The petitioner
was on second position in the merit list, therefore, he was not
appointed, since one vacant post (General category) in the
Persian subject is vacant and therefore, he was not appointed.
The petitioner came to know that one Shri Abu Taiyab Ashrafi
sought for an information under the Right to Information Act
and vide letter no. 554 dated 12.03.2024, the P.I.O.-cum-
Registrar, Patna University informed that out of the total
sanctioned strength of 06 in the subject Persian, 01 post of
Assistant Professor is vacant. It also came to the knowledge of
the petitioner that similarly situated person namely, Md. Ekram
Uddin was appointed against the post of Assistant Professor in
the Persian subject in the Nalanda Mahila College, under the
Patliputra University vide Memo no. 150/2024 dated
11.01.2024.
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5. Subsequently, a supplementary counter affidavit
was filed on behalf of the University on 24.04.2025, wherein it
was stated that the Department of Education, Government of
Bihar, Patna vide its letter no. 15/A2/06/2022/947 dated
23.03.2023, issued under the signature of the Director, Higher
Education, Government of Bihar, Patna, addressed to the
Registrar, Patna University, Patna, directed the Registrar to send
all the original records of the fourth candidate, who happens to
be the petitioner, so that options can be asked from him and
further process can be done. In compliance of the letter dated
23.03.2023, the Registrar, Patna University vide letter no.
G/387/13.04.2023, addressed to the Director, Higher Education,
Department of Education, Government of Bihar, Patna provided
the original records, related to the petitioner for necessary
action. When the matter was heard on 02.04.2026, the learned
counsel appearing on behalf of the respondents-State, prayed for
two weeks time to take final decision on the letter no. 947 dated
20.03.2023 issued by the Registrar, Patna University. In the
order dated 02.04.2026, it was also recorded that if the decision
will not be taken by the Director, Higher Education, within the
period of two weeks, he will appear through virtual mode on
16.04.2026. The time so sought for was granted and the matter
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was fixed for 16.04.2026. When the matter was taken up on
17.04.2026, the Director, Higher Education appeared in person
and submitted that vide letter no. 652 dated 02.04.2026, the
Registrar, Patna University, Patna had been directed to take
decision with regard to the appointment of the petitioner at his
own level and further it was directed that the dossier with regard
to the petitioner is being returned to the University. He had
undertaken before the Court on 17.04.2026 that the direction
with regard to appointment of the petitioner will be sent to the
University within a period of two weeks from the date of
passing of the order dated 17.04.2026, with a clear stipulation to
the University to act upon the same within the aforementioned
period. The matter was directed to be listed on 13.05.2026. In
the order dated 17.04.2026, it was also recorded that in the
meantime, necessary corrective measures will be taken by the
State and the University and to file affidavit bringing on record
the necessary orders with regard to appointment of the petitioner
in view of the decision communicated by the Director, Higher
Education vide order dated 02.04.2026, and the undertaking
given by the Director, Higher Education before this Court.
When the matter was taken up on 13.05.2026, a supplementary
counter affidavit was filed on behalf of the State-respondents
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whereby, while referring to the orders passed by this Court, it
was further stated that as per the statute issued by the Hon’ble
Chancellor vide notification BSU/25/2014/1359/GS(1) dated
11.09.2014, the authority for appointment of the Assistant
Professor vests in the University and it was further stated that
the situation has arisen due to wrong requisition sent by the
University in question, with respect to the vacancy in the said
subject and the explanation for such mistake has been fastened
upon the decision of rationalization. It was further mentioned in
the affidavit that in the letter dated 12.05.2026, it has further
been explained that the resolution related with the
rationalization was taken by the department in the year 2011-12
and the requisition was sent by the University in the year, 2014
i.e. after two years from the decision of the rationalization. In
the counter affidavit, the detail with regard to the posts which
were advertised has also been given and further it was stated
that as per contention of the University 01 post of Assistant
Professor in the Persian subject has become vacant in the year
2024 due to retirement of Md. Abid Hussain, hence, there is one
post vacant in the said subject. In the counter affidavit reference
to clause -6 of the statute dated 11.09.2014, for appointment of
Assistant teachers (Assistant Professor) for the University of
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Bihar, 2014, has been quoted wherein it has been stated that the
power for appointment of Assistant Professors vests in the Vice
Chancellor and the provisions contained in clause-6 of the
statute dated 11.09.2014 has been quoted in the paragraph no. 11
of the counter affidavit dated 15.04.2026.
6. Finally, in paragraph no. 7 and 8 it has been stated
as under:-
“7. That it is humbly stated that
the present situation has arisen due to wrong
requisition sent by the university in question
with respect to vacancy in the said subject
and the explanation for such mistake has
been fastened upon the decision of
rationalization.
8. That it has been explained in
the aforementioned letter that the resolution
related with the rationalization was taken by
the department in the year 2011-12 and the
requisition for vacancy was sent by the
university in the year 2014, i.e. after two
years from the decision of rationalization.”
7. When the matter was taken up on 13.05.2026, after
recording the statement made by the State in its affidavit dated
15.04.2026 and after going through the letter dated 12.05.2026,
which was provided to this Court that during course of hearing,
in paragraph no. 7 of the order dated 13.05.2026, it was
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recorded as follows:-
“7. From the attitude of the
respondent-University and the State
authorities, it appears that they are shifting
the buck on each other and the petitioner is
being treated like a football who is being
thrown from one post to another post.
Despite orders of this Court, no clear-cut
direction has been given by the State and the
University, despite direction of the State
Government, is not taking any corrective
measures.”
8. Left with no other option, this Court directed the
Vice Chancellor, Patna University and the Director, Higher
Education to appear in person on 15.05.2026 at 10.30 A.M. The
Director, Higher Education submits that the power to appoint
the Assistant Professor vests in the University and submitted
that the State Government has got no role in issuance of
appointment letter, for appointment of Assistant Professor. On a
query made by this Court with regard to compliance of Section
35 of the Universities Act, 1976, which is quoted hereinbelow:-
“35. No post for appointment shall be
created without the prior sanction of the
State Government. Notwithstanding
anything contained in this Act, no
University or any College affiliated to such
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a University, except such College-
(a) as is established, maintained or
governed by the State Government; or
(b) as is established by a religious or
linguistic minority:
1
[(i)After the commencement of this Act no
teaching or non-teaching post involving
financial liabilities shall be created without
the prior approval of the State
Government.]
(ii) shall either increase the pay or
allowance attached to any post, or sanction
any new allowance;
Provided that the State Government may,
by an order, revise the pay scale attached to
such post or sanction any new allowance.
(iii) shall sanction any special pay or
allowance or other remuneration of any
kind including ex-gratia payment or any
other benefit having financial implication
to any person holding a teaching or non
teaching post;
(iv) shall incur expenditure of any kind on
any development scheme without the prior
approval of the State Government.
(2) Notwithstanding anything contained in
this Act, no College other than one
mentioned in clauses (a) and (b) of sub-
section (1), shall, after the commencement
of this Act, appoint any person on any post
without the prior approval of the State
Government.
Patna High Court CWJC No.1171 of 2023 dt.15-05-2026
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Provided that the approval of the State
Government shall not be necessary for
filling up a sanctioned post of a teacher for
a period not exceeding six months, by a
candidate possessing the prescribed
qualification.
1
[(3) Any appointment or promotion made
contrary to the provisions of this Act, or
Statues, Rules or Regulations made
thereunder or made in irregular or
unauthorised manner shall be invalid and
shall be terminated at any time. The
expenditure incurred by the University
against such appointment or promotion
shall be realised from the officer making
such appointment or promotion as a public
demand under the provisions of the Public
Demands Recovery Act, 1914.]”
9. The Director, Higher Education, Government of
Bihar, Patna submits that the University is the competent
authority to appoint an Assistant Professor and the appointment
of the petitioner is being done in terms of the directions given
by the Director, Higher Education, Government of Bihar, Patna
vide letter dated 02.04.2026 and 12.05.2026, therefore, the same
will be deemed to be approved by the Department and no
further approval will be required. Accordingly, the matter was
adjourned for 2.15 P.M. enabling the Vice Chancellor, Patna
Patna High Court CWJC No.1171 of 2023 dt.15-05-2026
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University to bring on record the notification with regard to
appointment of the petitioner.
10. On the submission made by the Director Higher
Education, the Vice Chancellor, Patna University submitted that
he is ready to issue appointment letter in favour of the petitioner
in terms of the directions given by the Director, Higher
Education, Department of Education, Government of Bihar,
Patna vide letter no. 19/A2/03/2025/849 dated 12.05.2026 and
the earlier directions issued vide letter no. 19/A2/03/2025/652
dated 02.04.2026, whereby the Director, Higher Education had
directed the Registrar of the Patna University to take decision
with regard to the case of the petitioner at the level of the
University. It was further mentioned in the said letter that the
dossier with regard to the petitioner is also being returned.
Accordingly, it was submitted by the Vice Chancellor, Patna
University that he be granted an opportunity to come out with
the notification, appointing the petitioner on the post of
Assistant Professor, in terms of the directions given by the
Director, Higher Education vide his letter dated 12.05.2026. The
matter was adjourned for 2.15 P.M.
11. The matter has been called out at 2.15 P.M. The
Vice Chancellor, Patna University as well as the Director,
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Higher Education, are present. The Vice Chancellor, Patna
University has produced the Memo No. G/203 dated
15.05.2026, issued under the signature of the Registrar, Patna
University, Patna on the orders of the Vice Chancellor, Patna
University, Patna, whereby by giving reference to the present
writ petition and the letters issued under the signature of the
Director, Higher Education vide letter no. 652 dated 02.04.2026
and letter no. 849 dated 12.05.2026, the Registrar has proceeded
to appoint the petitioner having roll no. 47010029 on the post of
Assistant Professor, Persian in the pay scale of Rs. 57,700/- to
1,82,400/- in the Patna University, along with the applicable
allowances, from the date of his joining the said post. It has
further been mentioned that the appointment will be provisional
for a period of two years. By the said letter, the petitioner has
been posted in the Post-Graduate Department of Persian, Patna
University and he has been directed to give his joining along
with the relevant documents on or before 30.06.2026. The
contents of the said letter have been read over by the Director,
Higher Education, Government of Bihar, Patna who is present in
Court and he has found no illegality in the issuance of the said
letter.
12. From the second supplementary affidavit filed on
Patna High Court CWJC No.1171 of 2023 dt.15-05-2026
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behalf of the Patna University, it appears that an information
was provided to Shri Abu Taiyab Ashrafi under R.T.I. Act that
the number of vacant post is 01 which became vacant by the
retirement of Dr. Md. Abid Hussain on 31.01.2014 and as per
the roster the said vacancy will go to the E.W.S. category.
13. Accordingly, the University is directed to accept
the joining of the petitioner, if the same is given on or before
30.06.2026, without any unnecessary delay. The Director,
Higher Education, Government of Bihar, Patna is directed to
adhere to his undertaking given before this Court that there will
be no impediment in releasing the salary and other benefits to
the petitioner in terms of the notification issued vide Memo no.
G/203 dated 15.05.2026, on the directions given by him vide his
letter dated 02.04.2026 and 12.05.2026. No objection will raised
in future that the petitioner has been appointed, without
following the process prescribed under Section 35 of the Patna
University Act, since the order has been passed in presence of
the Director, Higher Education, Government of Bihar, Patna and
on his undertaking given before this Court. It is expected that
the Director, Higher Education, Government of Bihar, Patna will
adhere to his undertaking given before this Court and will issue
necessary sanction in favour of the petitioner, after his joining,
Patna High Court CWJC No.1171 of 2023 dt.15-05-2026
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for release of salary etc. as per the budgetary provision and as
per entitlement of the petitioner. Since the petitioner was denied
appointment, along with similarly situated persons, although he
was recommended for the appointment and only due to fault on
the part of the respondent authorities, he could not join. He will
be entitled for his seniority and notional benefits from the date,
persons recommended with him, gave their respective joining.
However, he will be entitled for salary from the date of his
joining.
14. The supplementary counter affidavit filed on
behalf of respondent no. 3 and second supplementary counter
affidavit filed by the respondents no. 4 and 5, which is uploaded
on the website of this Court are taken on record along with
Memo no. G/203 dated 15.05.2026 issued under the signature of
the Registrar, Patna University, Patna.
15. In terms of the second supplementary counter
affidavit filed on behalf of respondents no. 4 and 5, the Director,
Higher Education, Government of Bihar, Patna submits that he
will take necessary steps for getting the roster clearance with
regard to the petitioner, as soon as the University will send the
same for its clearance. It is clarified that the payment of salary
etc. will not be stopped of the petitioner in name of getting the
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roster clearance or any other impediment in their way, since the
order has been passed on the undertaking given by the Director,
Higher Education, Department of Education, Government of
Bihar, Patna.
16. With the above-mentioned observation and
direction, the writ petition is allowed.
17. Pending application(s) if any shall also stands
disposed of.
(Ritesh Kumar, J)
vinita/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.05.2026
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