IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5776 of 1998 Kamlesh Kumar Jha, S/o Sri Yogendra Jha, resident of Village and P.O. Sugna Katsari, P.S. Seohar, Dist. Sitamarhi. ------- Petitioner Versus 1. The State of Bihar through the Commissioner, Department of Science and Technology, Government of Bihar, New Secretariat, Patna. 2. The Director, Science and Technology, Government of Bihar, New Secretariat, Patna. 3. The Secretary, Department of Science and Technology, Government of Bihar, New Secretariat, Patna. 4. The Additional Secretary, Department of Science and Technology, Government of Bihar, Patna. 5. The District Magistrate, Darbhanga. 6. The Principal, J.M.I.T., Darbhanga. --------- Respondents ----------- For the Petitioner : Mr. S.P. Shrivastava, Advocate For the Respondents : S.C.-VI ---------------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (05.09.2011) ---------- Mihir Kumar Jha, J. Heard learned counsel for the petitioner and learned A.A.G.-2 for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of a writ in the nature of mandamus for commanding the Respondent authorities to treat the service of the petitioner as Senior Instructor, and further for issuance of an appropriate writ/ writs/ order/ orders/ direction/directions to pay entire back salary w.e.f. 30/10/1987 because petitioner was appointed against vacant sanctioned and permanent post and regularly working over the same post and further for issuance of an appropriate 2 writ in the nature of mandamus for quashing of the letter dated 18/9/97 bearing Memo No. 2224 (Annexure-7) because the same is illegal, arbitrary and colorable exercise of power.” Mr. S.P. Srivastava, learned counsel for the petitioner, while assailing the impugned order, would submit that the reason given in the impugned order is not only based on error of record but in fact is also contrary to the prescribed procedure laid down in Section 5 of the Bihar Private Engineering College, (taking over) Ordinance, 1986 later on made as an Act 4 of 1991 in the year 1991. Explaining this aspect, he would submit that all the working employees of the private engineering college on the date of take-over as envisaged under the provisions of the Takeover Act were to be subjected to a Screening Committee and the opinion, finding and recommendation of the Screening Committee had to be made the basis for taking a decision for eventual absorption of the employees in the Government service. He has in this regard referred to the notings in the government file contained in Annexure-8 to demonstrate that as a matter of fact, the case of the petitioner was never placed before the Screening Committee and the Screening Committee had also not examined the case of the petitioner while 3 juniors to him were absorbed in the light of recommendation of Screening Committee. He would, therefore, submit that the respondent, Secretary of the Science and Technology Department, could not have by himself rejected the case of the petitioner and when a direction was given in an earlier order of this Court to examine the case of the petitioner, the only option for him before taking a final decision was to either refer the matter to the same Screening Committee or constitute a new Screening Committee to submit its recommendation as with regard to the fulfillment of terms and conditions of take-over of the service of the petitioner by the State Government. He has also relied on the averments made in the Interlocutory Application, being I.A. No. 5677 of 2011, to show that all the nine persons absorbed on the post of Electrical Instructor in the college were actually junior to the petitioner and that had the case of the petitioner been placed before the Screening Committee, he could have been the first in lot who had to be absorbed in the Government service on the post of Electrical Instructor in the college, in question. There is no counter affidavit on behalf of the respondents throwing light on the aforesaid aspects but then there is absolutely no dispute that the 4 petitioner was working in the college, in question, namely Jagannath Mishra Institute of Technology, Darbhanga (hereinafter referred to as ‘J.M.I.T.’) on the date of its take-over on the strength of a valid appointment letter as contained in Annexure-1 dated 11.2.1981. There is also no dispute that the other nine Electrical Instructors of J.M.I.T. whose services were taken over, namely, Shri Tej Narayan Jha, Shri Balram Jha, Shri Jai Shankar Choudhary, Shri Indra Narayan Yadav, Shri Sunil Chandra Jha, Shri Vijay Chandra Choudhary, Shri Ajeet Kumar, Shri Amarnath Choudhary and Shri Gopal Singh came to be appointed in J.M.I.T. only after appointment of the petitioner in the said institution, namely, on 15.5.1982, 2.1.1985, 1.3.1985, 1.8.1985, 1.8.1985, 3.10.1985, 5.10.1985, 18.12.1985 and 1.7.1986 respectively. Thus the petitioner was the senior most person working on the post of Electrical Instructor in J.M.I.T. on the date of takeover and yet not considered by the statutory Screening Committee for takeover of his service. As noted above, there is no explanation whatsoever by the Respondents in this regard nor even the recommendation of the Screening Committee in respect of nine other Electrical Instructors has been placed on record. Further nothing has been brought on record to explain as to how the 5 appointment of the petitioner and his alleged promotion in the college on the post of Electrical Instructor was illegal and on what material, the Secretary in the Science and Technology Department of the Government of Bihar had come to a conclusion that the petitioner did not possesses the requisite qualification for appointment on the post of Electrical Instructor. The impugned order as contained in Annexure-7 dated 18.9.1997 in fact is non-speaking and cryptic order, which could not have eclipsed the right of the petitioner for his being considered for his absorption in the Government service pursuant to taking over of J.M.I.T. in the year 1986. This Court would also find force in the remaining submission of Mr. Srivastava, learned counsel for the petitioner, that all other authorities of the Science and Technology Department had in fact found the petitioner fully eligible for absorption of his service and their only reservation in this regard was that if the service of the petitioner was absorbed, it would lead to termination of service of one of the aforesaid nine persons, inasmuch as, the approved strength of nine Electrical Instructor for J.M.I.T. could not have been changed. In the considered opinion of this Court, the earlier absorption of 6 nine junior persons to the petitioner without considering the case of the petitioner could not be a ground to reject the case of the petitioner, inasmuch as, if the petitioner was also eligible for absorption and the authorities of the State Government did not want to disturb the other junior nine persons from their earlier benefit of absorption, they had to also allow the petitioner to continue in service in J.M.I.T. by taking over his service as well and removing the junior most and/or regularizing that junior most Electrical Instructor against any other vacant post. That however was not done and when the petitioner came to this Court, the impugned order was passed on 18.9.1997, which to say the least is not only a cryptic but a perfunctory order. In any event, in absence of the report of the Screening Committee, this Court cannot understand as to how it has been held that the appointment of the petitioner in a private engineering college on the post of Electrical Instructor had been held to be illegal. That apart when it also becomes an admitted fact that the case of the petitioner was never referred to the Statutory Screening Committee in terms of Section 5 of the Act, reading as follows:- ^^futh vfHk;a=.k egkfo|ky;ksa ds f'k{k.k ,oa vU; dksfV ds deZpkfj;ksa dh lsok 'kRrksZa dk fu/kkZfj.k & ¼1½ /kkjk 3 ds v/khu jkT; ljdkj esa fufgr gksus dh rkjh[k ls futh vfHk;a=.k egkfo|ky;ksa esa fu;ksftr lHkh f'k{k.k ,oa vU; dksfV ds deZpkjh lacaf/kr 7 futh vfHk;a=.k egkfo|ky; ds deZpkjh ugha jg tk;sxsA ijUrq ;g fd tcrd jkT; ljdkj mi&/kkjk ¼3½ ds v/khu dksbZ fofu'p; ugha dj ysrh] os rnFkZ vk/kkj ij lacaf/kr futh vfHk;a=.k egkfo|ky; dh lsok djrs jgsaxsA ¼2½ jkT; ljdkj fo'ks"kKksa ;k tkudkj O;fDr;ksa dh ,d ;k vf/kd lfefr;ka xfBr djsxh tks izR;sd futh vfHk;a=.k egkfo|ky; ds deZpkfj;ksa dh la[;k] deZpkjh HkrhZ la:i ¼LVkfQax iSVuZ½ vkSj f'k{k.k rFkk vU; dksfV ds deZpkjh ds thouo`r dh Hkh tkap djsxh vkSj ;g lqfuf'pr djsxh fd futh vfHk;a=.k egkfo|ky;ksa ds izcU/k lfefr }kjk Lohd`r deZpkjh HkrhZ la:i ¼LVkfQax iSVuZ½ fu;qfDr] izksUufr ;k laiqf"V] fo'ofo|ky; vf/kfu;e] ifjfu;e] v/;kns'k fu;e ;k ljdkjh funs'k@ifji= ds vuqlkj leqfpr gS ;k ugha vkSj lHkh izklkafxd rF;ksa rFkk futh vfHk;a=.k egkfo|ky;ksa dh vko';drkvksa] vgZrk] vuqHko vkSj 'kks/k fMxzh bR;kfn dks fopkj esa j[ksxh rFkk jkT; ljdkj dks viuk izfrosnu izLrqr djsxh% ¼3½ jkT; ljdkj] ;FkkfLFkfr] lfefr ;k lfefr;ksa dh fjiksVZ izkIr gksus ij f'k{k.k rFkk vU; dksfV ds deZpkfj;ksa dh la[;k rFkk deZpkjh HkrhZ la:i ¼LVkfQax iSVuZ½ fu;ekuqlkj fu/kkZfjr djsxh vkSj f'k{k.k rFkk vU; dksfV ds deZpkfj;ksa ds gjsd lnL; ds ckjs esa gjsd ekeys ds xq.kkxq.k ds vk/kkj ij ;g fofu'pr djsxh fd mUgsa ljdkjh lsok esa fy;k tk; vFkok mudh lsok lekIr dj nh tk; ;k mUgsa fu/kkZfjr inkof/k ds fy;s rn~FkZ vk/kkj ij ;k lafon~ ij cuk;s j[kk tk; rFkk vko';drkuqlkj og mudh iafDr] osru] HkRrs vkSj vU; lsok 'kRrksZa dks iqu% vo/kkfjr djsxhA** it has to be even otherwise held that the impugned order rejecting the case of absorption of the petitioner is unsustainable in the eye of law. By now it is well settled that any decision by an authority has to be taken only in the prescribed manner and thus when the Respondents did not place the case of the petitioner before Screening Committee, their decision must be held to be bad on this ground alone. In such a situation, this Court would quash the impugned order as contained in Annexure-7 and remit the matter back to the Principal Secretary of 8 the Science and Technology Department to get the case of the petitioner reconsidered by constituting a fresh Screening Committee and obtaining the order of the State Government on such recommendation of the Screening Committee. The State Government while taking its final decision as with regard to taking over the services of the petitioner must take into account the subsequent development that now after the death of Jai Shankar Choudhary and allocation of service of Sri Gopal Singh to the State of Jharkhand, there are at least two clear vacancies on the post of Electrical Instructor and therefore if the petitioner had fulfilled the requirement of the post of Electrical Instructor on the date of taking over of J.M.I.T. and if he is also alike other nine Electrical Instructors, he may also be absorbed in the government service. It is, however, made clear that if the petitioner’s service in course of aforesaid reconsideration is taken over, he will not be entitled for payment of arrears of salary but then his continuity in service with pay protection as given to his juniors shall be given and the same would be also reckoned for the purpose of grant of pension and other retirement benefit. If on the other hand, the respondents would still find that the services of the petitioner cannot be taken over 9 and/or absorbed, they will be required to pass a reasoned order, wherein, they also must compare the case of the petitioner with his nine other juniors who were absorbed on the post of Electrical Instructor in J.M.I.T. in preference to the petitioner. Such an exercise, however, must be completed as early as possible preferably within a period of six months from the date of filing of a representation by the petitioner along with a copy of this order. With the aforementioned observations and direction, this application is disposed of. Patna High Court Dated the 5th of September, 2011 Rishi/A.F.R. (Mihir Kumar Jha, J.)