Letters Patent Appeal No.985 of 2008 With I.A. No. 7410 of 2008 With I.A. No.5429 of 2010 ----------- Against the judgement and order of learned Single Judge dated 5th August 2008 passed in CWJC No. 3982 of 1993 ---------- 1. Vice-Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga 2. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga .. .. .........Appellants Versus 1. The Governing Body Of Jagjiwan Avodya Sanskrit College, Avodya Nagar, Amarpur Banka through its convener Sri Mohan Mishra son of Doman Mishra, resident of village Kabala, Police-Station Parbatta, District Khagaria, at present posted as Lecturer in Sanskrit P.G. Bhagalpur University 2. Sachchidanand Sharma son of Shri Yadunandan Sharma, resident of village Gopalpur, Police- Station Amarpur, District Banka 3. Vijay Singh son of Sri Jai Ram Singh, of village Vikrampur, Police Station Charia Bariarpur District Begusarai 4. Sri Kapildeo Sharma son of Sri Harsahay Sharma of village Gopalpur Police-Station Amarpur, District Banka .......Respondents ----------- For the Appellants: Mr. K. N. Choubey, Sr. Advocate Mr. Shiwesh Chandra Mishra, Advocate For respondent No.2: Mr. Durga Nand Jha, Advocate For respondent No.4: Mr. Ashok Kumar Keshri, Advocate -------------- P R E S E N T THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH R. M. Doshit, CJ.& Shiva Kirti Singh, J. This Letters Patent Appeal preferred under Clause-10 to the Letters Patent is directed against the judgement and order dated 5th August 2008 passed by the 2 learned Single Judge in C.W.J.C. No. 3982 of 1993. The matter at dispute is the appointment of the respondent No.4 - the writ petitioner as a clerk in Jagjeevan Avodya Sanskrit College- respondent No.1 (hereinafter referred to as „the College‟). The College is affiliated to Sri Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as „the University‟). The appeal is preferred by the Vice Chancellor and the Registrar of the University. 2. It is not in dispute that the writ petitioner was a student in the College. In the year1974, though a minor, he was appointed as a clerk in the College. He continued in service till the year 1993. In the year 1989 or there about a dispute arose whether the writ petitioner was senior to one Vijay Singh, another clerk in the College. The writ petitioner claimed that he was appointed as a Head Clerk while the aforesaid Vijay Singh, respondent No.3, was appointed as a clerk in the year 1979. After a round of litigation the matter was referred to the Vice Chancellor of the University. The Vice Chancellor under his order dated 16th February 3 1993 recorded the findings that on the date of his appointment the writ petitioner was a minor; that the College did not have a sanctioned post of Head Clerk; that the writ petitioner had admitted that his appointment was of 1st July 1977; that the appointment of the writ petitioner was made without following the due procedure. In view of the said findings the Principal of the College was directed to terminate the service of the writ petitioner with immediate effect. Consequently, the service of the writ petitioner came to be terminated on 22nd February 1993. 3. Feeling aggrieved he filed CWJC No. 3982 of 1993 under Articles 226 and 227 of the Constitution of India. In the writ petition the writ petitioner claimed that the Vice Chancellor had not only made order against the writ petitioner but he had also recorded findings against the aforesaid Vijay Singh. Against Vijay Singh the Vice Chancellor had observed; that his appointment was of 1st July 1979 but he had produced a forged appointment letter of 1st July 1969; that the said Vijay Singh had manipulated a forged approval letter and had 4 thus perpetrated fraud. The Vice Chancellor had directed for termination of service of the said Vijay Singh also. 4. The petition was contested by the University. The University supported the order of the Vice Chancellor. The University maintained that the College had no sanctioned post of Head Clerk. The University contended that appointment letter of respondent No.3 as of 1st July 1969 was doubtful; that the appointment of the writ petitioner was illegal, made without the sanctioned post and; that the writ petitioner had been given due opportunity of hearing before the Vice Chancellor. The appointment of the writ petitioner and the respondent No. 3 was made on a non existent post, that too without following due procedure. 5. The learned Single Judge held that “in absence of any provision of law for the Universities in Bihar, the provision relating to services of State Employees would govern the field”. The learned Judge relied upon Section 57 of the Bihar Pension Rules that provides, “A government servant in inferior service, shall not begin until the Government servant 5 concerned attained the age of 16 years”. In view of the said provision the learned Single Judge held that “the service of a Government servant will count from the date on which he attains the age of 16 years”. Learned Single Judge held that it was unjustified to terminate the service of the writ petitioner on the ground that the writ petitioner was below 18 years on the date of his appointment. Learned Single Judge took into account 25 years of service the writ petitioner had rendered with the College and that the order of termination of service was made without notice to the writ petitioner. In view of the said findings the learned Single Judge quashed the order of termination of service dated 22nd February 1993. The writ petitioner was allowed to be continued in service as a clerk with consequential reliefs. Therefore, the present appeal. 6. The facts stated hereinabove are not in dispute. We are informed at the Bar that the college does not have a sanctioned post of a Head Clerk and that pending the writ petition a peon in the College has been promoted as a Clerk and he has been serving as a clerk 6 till the date. 7. In view of the above facts, it is indisputable that the writ petitioner had served the college for more than 20 years and that his service was terminated unceremoniously, following the order of the Vice Chancellor. Though we do not agree with the view expressed by the learned Single Judge that in absence of the rules to the contrary, provisions relating to the services of the State Employees shall apply. In our view, unless the University had adopted the rules governing the State employees, such rules cannot apply to the employees of the University as a matter of course. We also do not agree with the interpretation of Section 57 put forth by the learned Single Judge. The said Section should only mean that no person can be employed in inferior service of the State Government unless he has attained the age of 16 years (as it stood then). 8. But we agree with the view that notice to the writ petitioner was required to be given before his service was terminated. In view of the lapse committed by the College and the fact that writ petitioner had 7 rendered more than 20 years of service, we confirm the order of the learned Single Judge setting aside the order of termination of service of the writ petitioner. We are, however, inclined to modify the reliefs granted by the learned Single Judge. 9. In view of quashing of the termination order dated 22nd February 1993 the writ petitioner Sri Kapildeo Sharma is entitled for reinstatement in service. The College will, within six weeks from today, reinstate the writ petitioner in service. The period from the date of termination of service of the writ petitioner till the date of his reinstatement in service will be treated as the period of Extra Ordinary Leave without pay. The consequences shall follow. In the event the College fails to reinstate the writ petitioner in service as aforesaid, the writ petitioner will be entitled to pay and allowances commencing from 10th August 2010. 10. In view of appointment of Umakant Choudhary a peon in the College as the Office Clerk, the College and the University will be at liberty to create a supernumerary post of Office Clerk to accommodate the 8 writ petitioner. The College will be at liberty to approach the State Government for creation of supernumerary post of Office Clerk and for release of the salary grant in respect of the writ petitioner. 11. Subject to the above directions, the Letters Patent Appeal is disposed of. 12. Interim applications stand disposed of. Patna High Court The 29th June, 2010 NAFR/BKS (R. M. Doshit, CJ.) (Shiva Kirti Singh, J.)