Patna High Court
Raghvendra Kumar SharmaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- HARISH KUMAR
Holding
Appointments to posts already sanctioned under the approved staffing pattern do not require prior state approval; consequently, the Director's order rejecting the petitioner’s appointment is illegal and is set aside.
Summary
The petitioner was appointed as an M.A. Teacher in 2013 after a lawful advertisement, interview and selection by the college's governing body, and the university gave its concurrence in 2018. The State Government, however, did not make budgetary provision and later, in 2022, the Director of Higher Education rejected the appointment citing Section 35(2) of the Bihar State Universities Act, 1976, which purportedly requires prior state approval for any appointment. The petitioner challenged the order, arguing that the post was already sanctioned and that the provision should be read to allow post‑facto approval, as held in the Full Bench decision of Braj Kishore Singh v. State of Bihar and subsequent cases. The Court examined the interpretation of Section 35, noting that when a post is created under the approved staffing pattern, prior approval is not mandatory and the State may only scrutinise eligibility and suitability. Relying on the Full Bench precedent and similar judgments, the Court held that the appointment was lawful, set aside the Director’s order, and directed the authorities to regularise the petitioner’s services and release his salary.
Issues considered
- Whether prior approval of the State Government under Section 35(2) of the Bihar State Universities Act, 1976 is required for appointment to a post that is already sanctioned.
- Whether the Director of Higher Education's order rejecting the petitioner’s appointment is legally valid.
- Interpretation of Section 35(2) in view of the Full Bench decision in Braj Kishore Singh v. State of Bihar and subsequent judgments.
Legislation cited
- Bihar State Universities Act, 1976 — s. 35(2), 57A, 57B
Subjects
- appointment
- state approval
- Section 35
- Bihar State Universities Act
- post‑facto approval
- writ petition
- eligibility
- selection process
- Articles 14 and 16
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9515 of 2025
======================================================
Raghvendra Kumar Sharma Son of Krishna Mohan Sharma Resident of
Village- Hathikhap, P.S.- Jamjor, Hathikhap, District- Aurangabad.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Director, Higher Education, Govt. of Bihar, Patna.
4. The Registrar, Kameshwar Singh Darbhanga Sanskrit University,
Darbhanga.
5. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University,
Darbhanga.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Satyam Shivam Sundram, Adv.
Mr. Ankit, Adv.
Mr. Aman Kumar, Adv.
For the State : Mr. Rajeshwar Singh, GA 10
Mr. Jitendra Kumar, AC to GA 10
For the University : Mr. Binay Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 03-02-2026
Heard the parties.
2. A counter affidavit has been filed on behalf of the
University, the same is taken on record.
3. The petitioner was appointed against the post of
M.A. Teacher in terms with an advertisement duly published in
the newspaper by the College in question on 13.02.2013 inviting
application from the eligible candidates for consideration of
their cases for appointment against the teaching and non
teaching posts in the concerned college.
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4. Mr. Satyam Shivam Sundram, learned Advocate for
the petitioner submitted that the materials available on record
clearly reflects that in terms with the advertisement, the
petitioner submitted his application for appointment against the
post of M.A. Teacher and after proper verification of his
qualification and eligibility, he was called upon for interview
held on 24.03.2013. The petitioner participated in the interview
for the aforesaid post which was conducted by the duly
constituted Selection Committee and on being found suitable
by the Selection Committee, the name of the petitioner has been
recommended for his appointment on the post of MA Teacher.
There was only one post of MA Teacher as has been advertised
against which the petitioner was appointed. It is submitted that
the said post was duly sanctioned as is also evident from the
advertisement, copy of which is marked as Annexure-P/1. After
having appointed on the post of MA Teacher, necessary
particulars have been placed before the University for the
purposes of granting approval of the appointment of the
petitioner. Accordingly, the University after due consideration
on the proposal sent by the College issued a notification
contained in Memo No. 653 dated 19.04.2018 giving
concurrence to the appointment of the petitioner along with
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other teachers.
5. Subsequently, the University vide its letter No.
A1/14046/18 dated 19.09.2018 requested the State Government
for making budgetary provision for payment of salary with
grant-in-aid for the same, but no action has been taken by the
State Government. In the aforesaid premise, the petitioner had
earlier approached this Court by filing CWJC No. 23533 of
2018 seeking a direction for payment of his salary. In the
meanwhile, all of a sudden the impugned order contained in
Memo No. 920 dated 21.04.2022 came to be passed by the
Director, Higher Education, Education Department, Bihar, Patna
by which recommendation of the University for approval of the
appointment of the petitioner along with others against different
posts in the College have been rejected. It is this order which is
put to challenge before this Court. This Court is also apprised
that since earlier writ petition bearing CJWC No. 23533 of
2018 had become infructuous and, as such, the petitioner
withdrew the afore noted writ petition.
6. Assailing the impugned order, learned Advocate for
the petitioner submitted that besides the order is wholly illegal,
arbitrary and unsustainable in law as well as on facts, the reason
for rejecting the approval of the petitioner’s appointment is only
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based upon the provision of Section 35(2) of the Bihar State
Universities Act, 1976 (in short ‘Act, 1976’), that in terms with
the afore noted provision, the College in question has not taken
prior permission of the State Government; which provision is
not at all applicable in the present case. The impugned order is
also said to be in teeth of the order passed by the Full Bench of
this Court in Braj Kishore Singh & Ors. vs. State of Bihar &
Ors. [LPA No. 36 of 1994]. The identical issue has also come up
for consideration before this Court in CWJC No. 2022 of 2024
which came to be disposed of on 02.04.2025. Taking this Court
through the afore noted decision, it is lastly contended that the
provision of Section 35(2) of the Act, 1976 was not required to
be followed as the appointment of the petitioner has been made
against the sanctioned and vacant post.
7. On the other hand, learned Advocate for the State
referring to the averments made in the counter affidavit has
submitted that there is a specific mandate under Section 35(2) of
the Act, 1976 that no college after commencement of the Act
appoints any person on any post without prior approval of the
State Government. In the case at hand, admittedly, the College
has not taken prior approval before making appointment and, as
such, after proper examination of the matter, the Department
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refused to grant approval of services of the petitioner vide
impugned order. So far the decision of the Full Bench of this
Court rendered in Braj kishore Singh (supra) is concerned, the
same is said to be not applicable in the facts of the present case.
It is also contended that the afore noted judgment did not
replace the word ‘post facto’ in place of ‘prior approval’ rather
read down the provision contained in Section 35(2) of the Act,
1976 to make it work in special circumstances.
8. Heavy reliance has been placed on para-26 of the
decision rendered by the Full Bench where the learned Court
has observed that if the power of the State Government to
scrutinize the eligibility or suitability of the candidates
appointed or proposed to be appointed or the validity of the
selection process is reserved to it, the State Government can,
even after the appointments have been made, decide not to
approve them. The term ''prior approval'' in Section 35 in the
matter of appointment should be read as ''post facto'' approval,
inasmuch as, as a general rule, after completing the selection
process the University/College authorities should seek approval
of the State Government before its decisions are given effect to
and actual appointments are made.
9. Learned Advocate for the University further
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advanced his submission that the appointment of the petitioner
has been made after proper publication of the advertisement at
the level of the Governing Body and the University forwarded
the matter to the authorities of the State with condition.
However, the Education Department having found certain
illegality referred hereinabove has rejected the approval of the
appointment of the petitioner by treating it as invalid.
10. This Court has considered the submissions
advanced by the learned Advocates for the respective parties
and also anxiously perused the materials available on record.
11. Before proceeding further, it would be relevant
to take note of the decision passed by the learned Full Bench of
this Court in Braj Kishore Singh (supra), where the issue
pertaining to approval of the services of the appellants on Class
III/Class IV post in the College was under consideration. The
appointment of the appellants was found to be illegal for want
of sanction of post by the State Government in view of the
provisions of Section 35 of the Universities Act. The learned
Full Bench while formulating the point for consideration as to
whether the appointments made by the College/University
authorities against the sanctioned post, i.e., the posts within the
staffing pattern are to be accepted as a final; noticing the
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prescription provided under Section 35 of the Universities Act
in para-21 held that the relevant part of Section 35 requiring
prior approval in the matter of appointment has to be read down
to include ‘post facto’ approval otherwise the provision may
become unworkable and lead to anamolous or absurd situations.
One of the objects underlying Section 35 is that appointments
are made of persons possessing necessary eligibility and
qualifications and in accordance with law. This object can be
achieved even without insistence on ‘prior approval’ in each and
every case. In appropriate cases, appointment can be made
subject to ‘post facto’ approval of the State Government after
such scrutiny of the qualifications and the recruitment process
as may be necessary and appropriate. Such appointments, made
by the college/university authorities, should not be treated as
final, they shall have legal effect and sanctity only after
approval of the State Government.
12. While summing up the discussions, the learned
Full Court of this Court further held that by reason of the
approval of the staffing pattern proposed by the Bihar Inter
University Board, non-teaching classes III and IV posts will be
deemed to have been created with the prior approval of the State
Government i.e. sanctioned. Appointments can be made against
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these posts in accordance with the staffing pattern without
seeking further approval regarding post(s). Merely on the
ground that prior approval of the State Government was not
obtained, the appointment cannot be said to be illegal. Further
the Court while interpreting Section 35 of the Act, 1976
concluded in para-30 as follows:
“30. In view of my interpretation of Section 35 of
the Act and conclusion that the staffing pattern has
already been laid down which amounts to creation
of posts, the above said decisions cannot be said to
be correct in law. The Supreme Court rejected the
S.L.Ps. summarily and these orders cannot be
understood as upholding the judgments/orders on
merit. If the appointments are made against posts
as per the staffing pattern i.e. within the sanctioned
strength, they cannot be said to be violative of
Section 35 of the Act and illegal on the ground that
the posts have not been sanctioned by the State
Government provided, of course, the candidates
possess the eligibility and suitability and the
selection/appointment process was in conformity
with Articles 14 and 16 of the Constitution.”
13. After having carefully gone through the Full
Bench decision of this Court in Braj Kishore Singh (supra),
indubitably if appointments are made against the posts within
the sanctioned strength by following all the due procedures they
cannot be said to be violative of Section 35 of the Act and
illegal on the ground that prior approval has not been taken.
However, of course, the candidate must possess the eligibility
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and suitability and the selection /appointment process was in
conformity with Articles 14 and 16 of the Constitution.
14. Now coming to the case at hand, this Court is
apprised that the College in question is a duly affiliated college
of the University and the post against which appointment of the
petitioner is made was the sanctioned post. Since the College
enjoys the status of full deficit grant college and it is the State
Government who made available necessary fund for payment of
salary to its teaching and non teaching employees, the
provisions contained under the Bihar State Universities Act,
1976 and the relevant statutes framed thereunder are applicable
even in matters of appointment and other service conditions.
The appointment of the teachers of the College are governed by
the provisions of Section 57A of the Bihar State Universities
Act, 1976 as amended time to time and the statutes framed in
terms of Section 57B which clearly postulates the appointment
of the teachers are to be made on the basis of recommendation
of the selection Committee.
15. It is the admitted position that the process for
appointment of the petitioner has been carried out following all
the due procedure and the petitioner was having requisite
qualification for the post on which he was duly appointed by the
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Governing Body. This is not the case of the University that the
petitioner was not appointed against the sanctioned post. Once
post is sanctioned what is required to be looked into by the
Government is only the eligibility and suitability of the
candidate who is duly appointed against such post. The approval
should not be refused only on the premise that prior approval
has not been taken by the State Government.
16. The identical issue has come up for
consideration before this Court in CWJC No. 10397 of 2014,
where under similar circumstances the respondent by referring
to the provisions contained under Section 35 of the Act, 1976
has cancelled the appointment of the petitioner of the said case
on the ground that no prior approval with respect to the
appointment has been taken. The Co-ordinate Bench of this
Court while taking note of various aspects of the matter has
been pleased to hold that the State under Section 35 of the Act,
1976 could interfere only in the matter of appointment in
exercise of power under Section 35 of the Act, if the posts are
not sanctioned or created with the prior approval of the State
Government. It has no role to play in the matter of appointment
in the University, if the post is sanctioned one.
17. Identical issue has also been raised in CWJC
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No. 2022 of 2024 wherein the Court after having referred the
relevant observation of the Full Bench of this Court in Braj
Kishore Singh (supra) has summed up his decision by holding
that there is no requirement to take prior approval of the State
when the post is already sanctioned and the petitioner was
legally appointed once the post was advertised and he was
appointed after facing due interview. The Court further observed
that there is no requirement of post facto approval of the State
Government after scrutiny of qualification and accordingly set
aside the impugned order and directed the University to
regularise the services of the petitioner and release the fund to
ensure payment of all the consequential benefits.
18. Having found the clear position of law as also
the fact that the petitioner having requisite qualification was
duly appointed against the vacant and sanctioned post after
following due selection procedure by the Governing Body of the
College and the petitioner has been discharging his duties to the
entire satisfaction of the College concerned since the date of his
appointment i.e., 14.03.2013, the State Government is only
empowered to scrutinize the eligibility or suitability of the
petitioner against the post and can not compel the College to get
prior approval even for appointment against a sanctioned post.
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Hence, rejection of the claim of the petitioner appears to be
wholly bad, illegal and unsustainable in law. Accordingly, the
impugned order as contained in Memo No. 920 of 21.04.2022
issued under the signature of the Director, Higher Education is
hereby set aside. The matter is remitted to the Director, Higher
Education, Government of Bihar to take appropriate decision in
the matter pertaining to concurrence of the appointment of the
petitioner, in accordance with law, keeping in mind the
discussions and the observations made hereinabove.
19. With the aforesaid observation, the writ petition
stands allowed.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
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Uploading Date 09.02.2026
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