IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8923 of 2002 MD.HABIB, son of Sri Abdul Rashid, Lecturer in the Department of Commerce, Mirza Ghalid College, Gaya, P. S. and District- Gaya. ….. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Higher Education, Govt. of Bihar, Patna. 3. The Magadh University, Bodh Gaya through its Registrar. …. Respondents. ----------- 7. 27.08.2010 Heard Mr. Tej Bahadur Singh, learned Senior Counsel assisted by Mr. Gyan Shankar and Mr. Brisketa Sharan Pandey, counsel for the petitioner, Mr. Lakmesh Marvind, A. C. to S. C. 20 for the State as also Mr. Vivekanand Kumar, learned counsel for the University. The prayer of the petitioner in this writ application reads as follows:- “ 1. That this is an application for issuance of an appropriate writ/writs directing the respondents particularly the respondent no. 2 to pay the salary of the petitioner with effect from October 1985 till date and current salary month to month along with penal interest since the respondents are in fault in making payment to the petitioner. The respondent no. 2 be further directed to grant formal approval to the payment of the petitioner made by the Governing Body of the Mirza Ghalid College, Gaya (hereinafter referred to as “College”) which is a recognized minority college by the Government of Bihar protected under Article 29 and 30 of the Constitution of India.” 2 With regard to the aforementioned prayer, Mr. Tej Bahadur Singh, learned senior counsel for the petitioner would submit that the college in question, Mirza Ghalid College, Gaya (hereinafter referred to as “the College”) is minority institution in which the Government itself has taken the liability of making payment of salary of teaching and non-teaching staff and in fact the teachers of Science and Arts faculty are being also paid their salary as per the grants released by the Government. He would, accordingly, submit that when the Commerce Faculty of the College is also affiliated with the prior approval of the State Government, there could be no any discrimination in the matter of payment of salary of the petitioner, a teacher of Commerce faculty. In this regard, it has been superficially asserted in the writ application that the petitioner stands discriminated in the matter of payment of salary inasmuch as the same terms and conditions was initially made applicable even to the teachers of Science and Arts faculty wherein the Government initially at the time of granting affiliation to Science and Arts faculty had imposed the same condition of sharing no financial liability by the State pursuant to the aforementioned 3 affiliation to the college, but the payment of salary by way of release of fund to the teachers of those faculties ultimately was made by the Government. He would thus strongly deprecate the obvious discrimination being practiced by the State Government in the matter of payment of salary only against the petitioner, the teacher of Commerce Faculty. Counsel for the State on the other hand would rely on a supplementary counter affidavit filed today wherein it has been stated that the question of grant of affiliation to the different faculties of the College was taken in phases and as the affiliation to the Commerce faculty for the first time was given on temporary basis for Sessions 1998-99 to 2000-2001 only for B. Com Course, by an order dated 31.12.1998 with a clear condition that the Government will not bear any financial liability on account of such affiliation, the petitioner cannot claim payment of his salary and that too for a period prior to 1998. In this regard it has also been explained that the permanent affiliation to the Commerce Faculty in the college has been granted by the State Government on 11.1.2007 w.e.f. 2001-2002 Session and even while 4 granting such permanent affiliation, the same condition of no financial liability of the State was reiterated in its aforesaid order dated 11.1.2007. In nutshell the plea of respondent-State for denying the payment of salary to the petitioner is based, according to counsel for the State, on a reasonable differentia, namely, the specified condition of non-payment of salary to the teachers of Commerce Faculty of the college and absence of such condition in the affiliation of Arts and Science Faculty of the College. Noticing the aforesaid stand of the respondents in the earlier counter affidavit this Court by an order dated 21.6.2010 had directed the State to file supplementary counter affidavit and in this context, it would be useful to quote the relevant portion of the order of this Court dated 21.6.2010 “….. The counter affidavit filed on behalf of both the respondent-state and the University to say the least does not answer the basic question as with regard to plea of discrimination raised by the petitioner in the matter of release of payment of salary for the teachers of Commerce Faculty of Mirza Ghalib College, Gaya. It is the case of the petitioner that by Annexure-6 not only the posts of Lecturers of Commerce Faculty but a large number of even Arts Faculty were sanctioned without any financial liability to be incurred by the State Government. 5 Mr. Tej Bahadur Singh, learned counsel for the petitioner, however, explains by reading Annexure-10 that from amongst the same number of posts covered by Annexure-6 at least six Lecturers of different faculties have now been given payment of salary, whereas, the petitioner approved as a first teacher of the Commerce Faculty had to undergo without payment of salary after the year, 1985. Counsel for the petitioner also explains that when at all point of time after the year 1985 the Commerce Faculty was also part of the Mirza Ghalib College and the posts of teachers also have been sanctioned in the said department of Commerce, the stand taken by the respondents that since in Commerce Faculty posts were created without financial liability to be incurred by the State Government, cannot be made applicable only in case of teachers of Commerce Faculty because some restriction were imposed for all the faculties and a number of posts in such college. As noted above, these aspects of the matter have not at all been taken into consideration in a telegraphic counter affidavit filed by the respondents. That being so, this Court would direct the respondents to file an exhaustive supplementary counter affidavit dealing with the aforementioned grievance of the petitioner within a period of four weeks. It is however made clear that if such supplementary counter affidavit is not filed by the respondents, the Secretary of the Human Resources Development Department and the Vice Chancellor of the University shall remain personally present before this Court. List this case after four weeks at the top of the list.” 6 As noted above, in the supplementary counter affidavit a stand has been taken that the petitioner will not be entitled for payment of salary as there was a clear restriction denying the financial liability pursuant to the affiliation either giving on temporary or permanent basis. In the opinion of this Court, the issue relating to the payment of salary of the petitioner has to be tested on the touchstone of Article 14 of the Constitution of India. The plea of denial of payment of salary to the petitioner does not stand to the scrutiny of this Court inasmuch as even the teachers of Arts faculty were initially having the similar restriction and in fact for them the Government initially came out with similar order of sanctioning the posts without undertaking any financial liability as would be apparent from the perusal of order dated 15th October 1985 reading as follows:- Þi=kad ts ch 2&95 80 f'k0 izs"kd] Jh 'kdhy vgen] Ljdkj ds fo'ks"k lfpo] fcgkj A lsok esa] dqy lfpo] ex/k fo'ofo|ky;] cks/kx;k A iVuk] fnukad vDVwcj 85 A fo"k; %& fetkZxkyhc dkayst] x;k ds fy, f'k{kdks ds l`tu dh Lohd`fr ds laca/k esa A 7 egksn;] mi;qZDr fo"k;d vkids i=kad 107 ¼ch0½ II fnukad 11&10&85 ds izlax esa funs'kkuqlkj dguk gS fd jkT; ljdkj us fetkZxkyhe dkyst x;k ds fy, fuEukafDr :i esa O;k[;krkvksa ds inks ds l`tu dh Lohd`fr iznku djus esa vukifÙk O;Dr djus dh d`ik dh gS %& Øekad fo"k; inksa dh la[;k 1- mnwZ rhu& ¼r`rh;] prqFkZ oxZ iape½ in 2- vFkZ'kkL= ,d& ¼r`rh;½ in 3- okf.kT; ikap& ¼izFke ls iape½ in 4- jktuhfr 'kkL= nks& ¼r`rh; ,oa prqFkZ½ in 5- vxzath pkj& ¼iape ls v"Ve½ in 6- HkkSfrd pkj& ¼prqFkZ ls lIre½ in 7- bfrgkl ,d& ¼f}rh;½ in 2- mi;qZDr lHkh inksa iwjs fu;qfDr;ka vkj{k.k laca/kh ifjfu;eksa dks O;ku esa j[krs gq, dh tk; A 3- bl ij gksus okyk fdlh Hkh izdkj dk foÙkh; Hkkj jkT; ljdkj cgu ugh djsxh A 4- funs'kd mPp f'k{kk dks mudh lwpuk nh xbZ gS A fo'oklHkktu] g0 'kfdu vgen ljdkj ds fo'ks"k lfpo Kki la[;k 1136 iVuk] fnukad 15 vDVwcj] 85Þ ((underlining for emphasis) It is not in doubt that the payment of salary to the teachers appointed against 3rd, 4th and 5th post of Urdu, 3rd post in the subject of Economics, 3rd and 4th post of Political Science, 5 to 8 post in the subject matter of English, 4 to 7 post in the subject of Physics and second post of History have been favoured with payment of salary and today every teacher of the College of Science and Arts 8 Faculty working against the sanctioned post for the College in these two faculties is being paid his salary from the funds of the State Government. Thus when same condition had been imposed even in respect of five posts of Commerce faculty by the same order dated 15th October 1985, did not stand in the way of the State Govt. in making payment of salary to the teachers of Science and Arts Faculty of the college this Court would find hardly any justification for the same becoming an impediment in payment of salary to the petitioner. At this stage, one may have a look of section 35 of Bihar State Universities Act which is the sole repository of the power with regard to creation and sanction of post in the constituent/ affiliated college. If the State Government therefore for all other posts namely 15 of them for Arts and Science Faculty despite imposing the same condition of no financial liability, could ultimately take a decision for payment of their salary, the same benefit has to be extended to the teachers of Commerce faculty of the College. It has to be kept in mind that the appointment of the petitioner has not only been made in the prescribed 9 manner against the first post of Lecturer in the department of Commerce of the College but the concurrence of the Bihar College Service Commission has also been accorded and thus the petitioner holds a valid appointment both in terms of Section 35 and 57A of the Act. In that view of the matter, this Court would find it difficult to approve the line of artificial distinction drawn by the State Government in the matter of payment of salary to the petitioner who is also working against a duly sanctioned post by the State Government. Normally, this Court could have expected from the respondents to take a reasonable stand specially when a conscious decision for payment of salary to the teaching and non- teaching employees working against the sanctioned posts in this Minority College, having the protection of Article 29 and 30 of the Constitution as been taken voluntarily been State Government. The submission of counsel for the State that the Government by its own having conceded before this court for making payment of salary could not have become party to a large number of similar cases at least does not impress this Court. There are at best only five minority 10 colleges in the State where the Government on its own freewill and accord had chosen to extend the facility of payment of salary to its teaching and non-teaching employees. This Court is not aware of the details of those five colleges but when the Government has on its own taken the liability for payment of salary to the teaching and non-teaching employees appointed and working against duly sanctioned post, it cannot discriminate in the matter of payment of salary. True it is that the discretion of the Government in the matter of release, grant or giving larges cannot be circumscribed within the parameter of judicial review but then the Apex Court in the case of M/s Kasturi Lal Lakshmi Reddy etc. vs. the State of Jammu & Kashmir and Another, reported in AIR 1980 SC 1992 has made it clear that the Government even in the matter of grant of aid or largees cannot act arbitrarily. The net impact of the aforementioned discussion would be that the petitioner cannot be denied payment of salary at least from the date on which his post was created by the State Government i.e. w.e.f. 15th October 1985. Undisputedly, the payment of salary to the other teachers of the College covered by the same order 11 dated 15th October 1985 has already been made from the said date and therefore this Court would direct the respondent, State of Bihar to release fund for payment of salary to the period 15th October 1985 onwards. It is, however, directed that the petitioner’s salary shall be continued to be paid in the same manner in which the other teachers of the College are being paid their salary. This exercise must be completed by the respondents within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)