IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19027 of 2008 SMT.KUMKUM RANI, W/O SHRI SOORAJ DEV NARAIN SRIVASTAVA, R/O KAMTA SINGH LANE, EAST BORING CANAL ROAD, P.S.-BUDHA COLONY, DISTRICT- PATNA. AT PRESENT POSTED AS LECTURER, DEPARTMENT OF HINDI, J.N.L.COLLEGE, KHAGAUL, MAGADH UNIVERSITY, BODH-GAYA, GAYA. ……………PETITIONER. Versus 1. THE CHANCELLOR, UNIVERSITIES OF BIHAR, MAGADH UNIVERSITY, BODH-GAYA, GAYA. 2. THE STATE OF BIHAR, THROUGH, PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT (HIGHER EDUCATION), GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE CHANCELLOR, UNIVERSITIES OF BIHAR (MAGADH UNIVERSITY). 5. THE MAGADH UNIVERSITY, THROUGH, REGISTRAR, MAGADH UNIVERSITY, BODH- GAYA, GAYA. 6. THE VICE-CHANCELLOR, MAGADH UNIVERSITY, BODH-GAYA, GAYA. 7. THE REGISTRAR, MAGADH UNIVERSITY, BODH- GAYA, GAYA. ……………RESPONDENTS. ----------- 3 14.10.2011 In view of the stand taken by the University in its counter affidavit, detail facts of the case are not required to be noticed. It is suffice to notice that petitioner was appointed in an affiliated College in the Department of Hindi. However, when the College was taken-over, a Screening Committee was constituted by the University for take-over of the assets and liabilities of the College as well as for absorption of its teaching and non-teaching staff, in 2 obvious exercise of its powers under Clause 14 of Sub-Section (1) of Section 4 of the Bihar State Universities Act, 1976. The Screening Committee submitted a report, inter alia, that, though petitioner was appointed in the College, but she did not join. Pursuant to the report, University issued orders for her termination, as contained in Annexure-3. This started the dispute. Finally the matter was settled by the Chancellor by his order dated 13.07.1994, as contained in Annexure-6, in which the Chancellor observed that “ the case of Smt. Kum Kum Rani is a hard case and equity, fair play and justice warrant her reinstatement in services of the College/University if rules so permit.” In spite of the order of the Chancellor petitioner was not reinstated. Hence, she moved this Court, through a writ application. Her writ application was disposed of with certain directions which were not complied with, which resulted into filing a contempt application. Finally the Vice-Chancellor passed orders dated 28.06.2004, as contained in Annexure-9, by which he found the case of the petitioner fit 3 for reinstatement on merits and ordered for the same. However, he observed that since the power of regularization lay with the Chancellor it was only the Chancellor who could pass orders for regularization of her services. The matter was hence referred to the Chancellor. Since the matter remained pending, petitioner, though reinstated, was paid only her basic salary. She was not even paid the other benefits of the service which led to filing of the present writ application. Learned counsel for the petitioner submits that the three regularization Statutes have been held ultra vires by a Division Bench of this Court in the case of Dr.Shiv Narain Yadav and Ors. Vs. The State of Bihar and Ors. [2001(2) PLJR 817]. He also submits that, in fact, the case of the petitioner is not of regularization, but of absorption, which power lies with the University as per the said Clause 14 of Sub- Section (1) of Section 4 of the Act. In support of this submission, he places reliance on the judgment of the Apex Court in the case of State of Bihar & Ors. Vs. Bihar 4 Rajya M.S.E.S.K.K. Mahasangh & Ors. [2005(1) PLJR 464 (SC). He, therefore, submits that the University be directed to issue formal notification of absorption of services of the petitioner with consequential benefits of fixation of her salary after granting her continuity of service from the date of appointment and other benefits of promotion etc. as per the law applicable from time to time. In the counter affidavit, the only stand taken by the respondents is that the matter of the petitioner is of regularization and hence, the same has been referred to the Chancellor. The facts of the case have not been denied at all or disputed by the University in the counter affidavit. In view of the judgment of the Apex Court in the said case of State of Bihar Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors. (Supra), this Court need not delve upon in detail with regard to the powers of the University under the said Clause 14 of Sub- Section (1) of Section 4. While dealing with the provisions of the Act and particularly provisions of Section 35 vis-à-vis said 5 Clause 14 of Sub-Section (1) of Section 4, the Apex Court has held that they operate in two different fields independently, having over-riding effect on each other. Section 35 deals with sanction of post and appointment thereon in an affiliated College, whereas the said Clause 14 of Sub-Section (1) of Section 4 deals with the power of the University to enter into agreement, with the prior approval of the State Government, with the management of an affiliated college for the purposes of its take-over and consequent take-over of its assets, liabilities and absorption of his teaching and non-teaching staff. Once an agreement is entered between the management of an affiliated or non-affiliated college and the University for its take-over, the University gets the exclusive jurisdiction to take a decision with regard to take-over of its assets, liabilities and absorption of its teaching and non-teaching staff and no other authority has any role to play in this matter. Once it has been held by the Chancellor and Vice-Chancellor of the University that the termination of services 6 of the petitioner, on the basis of the Screening Committee report, was wrong, it will lead to the obvious inference that the Screening Committee’s report against the petitioner itself was wrong. Therefore, the case of the petitioner for absorption stands re-opened from that stage. The reinstatement of the petitioner in the service is obviously in furtherance of exercise of power by the University under the orders of the Chancellor, in consonance with its powers under the said Clause 14 of Sub-Section (1) of Section 4. Hence, obviously the University is required to issue a formal notification, besides reinstating her also for her absorption in service. Once this formal notification is issued petitioner will obviously be entitled for counting of her entire service from the date of appointment or from the date of take-over the College, as may be prescribed in law, for the purposes of fixation of her salary from the date of take- over of the College with all revisions and increments in accordance with law and for consideration of her case for promotion etc. as per the Statute in vogue from time to 7 time. In the circumstances, this Court directs the University to issue notification in exercise of its powers under said Clause 14 of Sub-Section (1) of Section 4 of the Act in respect of absorption of the services of the petitioner within one month from the date of receipt/production of a copy of this order. This Court also directs the University to fix the pay of the petitioner thereafter at the appropriate stage and scale, as a consequence of absorption of her service, as she may be entitled to in law for the same, as on the date of her joining i.e. 30.07.2004 and thereafter to revise the same in accordance with law. This Court also directs the University to consider her case for promotion in terms of the Statutes in vogue from time to time and pass appropriate orders in this respect in accordance with law. These actions the University must take within three months from the date of issue of notification of absorption of the petitioner. In the writ application petitioner has also prayed for payment of her salary from the date of her termination i.e. 8 19.06.1981 till her date of reinstatement. In paragraph 30 of the writ application petitioner has referred to one judgment of the Apex Court in the case of Manorma Verma (Smt.) Vs. State of Bihar & Ors. [1994 Supp.(3) SCC 671] in support of the claim that, if she was not gainfully employed anywhere else and she was put out of service by the University illegally, she is entitled to full salary of the entire period. Facts of the case show that the report of the Screening Committee dated 01.06.1991, that the petitioner, though appointed, but had not joined, was the root cause of the controversy, which was finally put rest by the order of the Vice-Chancellor dated 28.06.2004 directing for her reinstatement. During this period twice orders were passed by the Chancellor and a report was submitted by a 3 Men Committee constituted by the Syndicate also, in favour of the petitioner. However, from the facts it appears that there has been some delay at different stages on the part of the petitioner herself also, inasmuch as Chancellor had passed order in her favour in 9 1994 for compliance of which the petitioner had moved this Court in 1998. Although it has been pleaded by the petitioner in paragraph 31 of the writ application that all through this period she was not gainfully engaged, but for holding her entitled for salary a specific affidavit had to be filed by her before the sanctioning authority of the University. Therefore, taking overall aspects of the matter, and to balance the equity, this Court directs that if the petitioner files an affidavit before the Vice-Chancellor that during the entire period she was not gainfully engaged anywhere else, 50% of the basic salary of each scale, including the revisions, shall be paid to her of the entire period during which she was put out of service pursuant to the first order of the Vice-Chancellor dated 15.06.1981 till her date of joining i.e. 30.07.2004. This calculation should also be made and arrears on all counts must be paid to her within the said three months from the date of issue of notification of her absorption. The order of the Vice-Chancellor, as contained in Annexure-9, is quashed to that extent. 10 The writ application is allowed with the aforesaid observations and directions. Arvind/ ( J.N. Singh, J.)