IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 16438 of 2009 1. Dr. Sadanand Jha son of Late Pandit Kamla Kant Jha, resident of Mohalla Burhanath (Near Man Mandir) P.S. – Adampur (Kotwali) Town and District – Bhagalpur 2. Dr. Ajay Kumar Jha, son of Late Bodh Krishna Jha, resident of Mohalla Sikandarpur, P.S. – Mojahidpur, Town and District – Bhagalpur 3. Mahboob Alam son of Late Md. Ayub, resident of Agarpur, P.s. – Lodipur, Town and District – Bhagalpur 4. Dr. Parash Mani Jha, son of Late Khagesh Prasad Jha, resident of Houce No. 74, Panna Mills Road, Gurhatta Chowk, P.S. – Mojahidpur, Town and District – Bhagalpur 5. Dr. Ram Pravesh Singh, son of Rabhubar Prasad Singh, resident of HIG-20, Sector-III, Housing Board Colony, Barari,P.S. – Barari, Town and District – Bhagalpur 6. Sri Ashok Kumar Jha son of Late Shaileshwar Jha, resident of LIG-173, Sector-I, Housing Board Colony, P.S. – Barari, Town and District – Bhagalpur 7. Dr. Raghvendra Kumar Singh, son of Late Tej Narayan Singh, resident of Mohalla – Kathalbari, Khanjarpur, P.S. – Tilkamanjhi (Kotwali), Town and District – Bhagalpur ……………… Petitioners Versus 1. The T. M. Bhagalpur University, Bhagalpur through its Registrar 2. The Vice-Chancellor, T. M. Bhagalpur University, Bhagalpur 3. The Registrar, T. M. Bhagalpur University, Bhagalpur 4. The financial Advisor, T. M. Bhagalpur University, Bhagalpur 5. The Finance Officer, T. M. Bhagalpur University, Bhagalpur 6. The Inspector of Colleges (Science), T. M. Bhagalpur University, Bhagalpur 7. The Deputy Registrar I, T. M. Bhagalpur University, Bhagalpur 8. The Principal Sabour College, Sabour, District – Bhagalpur 9. The State of Bihar, through the Principal Secretary, Human Resources Development Department, Government of Bihar, Patna 10. The Deputy Secretary, Education Department (now known as Human Resources Development Department) Government of Bihar, Patna 11. The Director, Higher Education Department, Government of Bihar, Patna 12. Mr. K. K. Pathak, IAS, Secretary, Human Resources Development Department, Government of Bihar, Patna ……………… Respondents ---------------------------------- For the Petitioners: Mr. Purushottam Kumar Jha, Advocate For the University: Mr. S. K. Ghosh, Sr. Advocate For the State: Mr. S. B. Kumar, S.C.-16 ********** 2 09. 23.09.2011 Heard learned counsel for the petitioner and the counsel appearing for the State as well as the counsel, appearing for the Tilka Manjhi Bhagalpur University, Bhagalpur. Petitioners in this Writ Application are Teachers in the subject of Rural Economics and Commerce in Sabour College, Sabour, Bhagalpur. The College, in question, is the forth phase constituent Unit of Tilka Manjhi Bhagalpur University, Bhagalpur. The sanctioned teaching strength of this College, as per Justice Agrawal Commission’s Report, which has been annexed as Annexure- 2 to this Writ Application, is 72. Initially this Writ Application had been filed by the petitioners for quashing of Order, contained in Memo No. B/34047-116, dated 08.08.2009 (Annexure- 9), whereby the date of absorption of the petitioners have been shifted to 01.02.1988. Further prayer of the petitioners was for the direction to the respondents to declare their effective date of absorption in service as mentioned in Notification No. 32/05, dated 07.02.2005 (Annexure- 3) and Notification No. 91/05, dated 29.04.2005 (Annexure- 4) Petitioners have also prayed for declaring the action of the respondents in withholding their salary 3 from the month of October, 2009, as illegal and arbitrary and for malicious reason and also for directing the respondents to ensure payment of petitioners’ current salary on month to month basis and also payment of their arrears of salary, details of which have been given in Annexure- 5 series to the Writ Application. During the pendency of the Writ Application, two Interlocutory Applications have been filed by the petitioners. I. A. No. 7889 of 2009 has been filed for additional relief, relating to quashing decision taken by the Secretary, Human Resources Development Department, Government of Bihar, Patna in the meeting, dated 25.11.2000. Another Interlocutory Application No. 4692 of 2011 has been filed by the petitioners for additional reliefs. The petitioners’ relief is for issuance of direction to the respondents for making payment of current salary with effect from December, 2010 onwards, for quashing of State Government’s letters, dated 07.01.2011 (Annexure- 4), 01.02.2011 (Annexure- 5) and 27.05.2011 (Annexure- 6), whereby the number of sanctioned teaching posts and number of working Teachers 4 have been reduced by the Human Resources Development Department, Government of Bihar, Patna in complete disregard to the Agrawal Commission’s Report as well as the decision of Apex Court, dated 12.10.2004 in Civil Appeal No. 6098 of 1997. Petitioners’ case is that they were appointed against the proposed / recommended posts and their names find place in Annexure- 3A of Hon'ble S.C. Agrawal Commission’s Report. Though their names were placed in Annexure- - 3A, considering the fact their names find place in State Government’s letter no. 38C, dated 01.02.1988. The correctness and genuineness of letter no. 38C has been upheld by the Hon'ble S.C. Agrawal Commission at page no. 818 of its report and the same has also been approved in the judgment of the Supreme Court with a finding that simply because of the change in Government, the earlier decision taken by the State Government with regard to sanctioning these posts, can not be changed by the State Government subsequently. Petitioners’ case is that the Hon'ble Agrawal Commission, having examined cases of teaching employees of College, in question, vide 5 Annexure- 4A had been pleased to hold that 72 posts of Teachers in different subjects are sanctioned for the College in question. But, completely ignoring the report of Justice Agrawal Commission, the Department of Human Resources Development, Government of Bihar, vide its letter dated 07.01.2011; 01.02.1011; and 27.05.2011 has been reducing the number of sanctioned teaching post for the College in question. On account of such reduction by the Department of Human Resources, the fund which used to be released in favour of the University for making payment to the Teachers, working against such posts, are reduced and due to that full payment of petitioners’ salary is not being made. In support of this contention, the State Government’s letter, annexed as Annexure- -3, 4 and 5 with I. A. No. 4692 of 2011 has been annexed. In letter no. 07.01.2011, the State Government has shown 87 teaching posts, as sanctioned post, for the College in question against which 56 Teachers have been shown as working for the purposes of payment of salary. In the next letter, dated 01.02.2011 that sanctioned strength has been reduced to 62 and the working strength has been reduced to 48. In further subsequent letter, sanctioned strength has been 6 further reduced to 57 and the teaching strength has been reduced to 43. Counsel for the petitioners submit that the sanctioned strength of Sabour College, Sabour, Bhagalpur as per the Agrawal Commission’s Report being 72, the State Government and its authorities have got no jurisdiction to reduce it as per their own pleasure and convenience. The stand taken by the petitioners has also been supported by the University in its Counter affidavit, as University is also aggrieved on account of non-release of fund in its’ favour, for making payment to Teachers, working against sanctioned post. When the counsel appearing for the State was asked to reply this question, a final supplementary counter affidavit has been filed. In paragraph no. 11 of the counter affidavit, it has been stated that the State Government bonafidely relied upon the report of the Justice Agrawal Commission Report and treated 57 posts as sanctioned strength of Teachers. 33 posts in sanctioned Category and 24 posts in R1 Category for the purposes of absorption and fund is being released for payment to 57 Teachers. However, 7 after close scrutiny, it was found that 5 Teachers of Commerce Department and 4 Teachers of Rural Economics Department in Sabour College, Sabour, Bhagalpur, a constituent unit of Tilka Manjhi Bhagalpur University, Bhagalpur, also deserved to be treated of R1 Category. After details discussion, considering Justice Agrawal Commission’s Report at page no. 809, whereby commission has mentioned that total 9 posts of Lecturer in the subject of Commerce and Rural Economics was recommended by the University to State Government for approval, up to the cut off date. The State Government has taken decision to treat these posts as R1 Category and directed to issue letter for releasing the grant to Tilka Manjhi Bhagalpur University, Bhagalpur for Sabour College, Sabour, Bhagalpur for previous financial year 2010-11. I fail to understand that how the State Government can make any such statement with regard to the sanctioned strength of the concerned College, when the reliance is being placed on the Commission’s Report at page 809. In this report, the sanctioned strength is mentioned as 72. There is no reason for reducing and increasing this sanctioned strength by the State Government as per its own 8 will. The State Government in future is debarred from taking any such decision with regard to sanctioned strength of any College, including the Sabour College, Sabour, Bhagalpur, contrary to the sanctioned strength as reported in Justice Agrawal Commission’s Report. So far the working strength of the College is concerned that should also not be reduced or increased by the State Government, as per its’ own whims. The State Government is duty bound to release fund for payment of salary to all such Teachers, who are working against sanctioned post. In future the State Government will not withhold release of fund for making payment of salary to such Teachers. The fund which has been released recently by the State Government in favour of Bhagalpur University as per the supplementary counter affidavit is only sufficient for making salary which has been withheld from December, 2010 onwards. The petitioners are admittedly working in R1 Category against sanctioned post and their arrears of salary has also been with held for the period 1986-87 to 2005-06. The University is directed to ask for the detailed arrears report of the petitioners for the College and send a requisition for 9 same to the State Government. The State Government is duty bound to release fund for making payment of arrears of salary to the petitioners for the period stated above, since they all are working against the sanctioned vacant post. The fund for payment of such arrears of salary must be released by the State Government, as soon as the requisition of University for the same is received. The University must make payment of entire arrears of salary to the petitioner, latest by three months. The main issue, for which this Writ Application has been filed relates to shifting of the date of absorption of the petitioners. On perusal of the impugned order, contained in Annexure-9, I find that no reason has been assigned by the Vice Chancellor for shifting of the date of absorption of petitioners to the year 1988 when already petitioners were absorbed in their service vide notification contained in Annexure-3 and Annexure-4 to the Writ Application. In the counter affidavit filed on behalf of the University, there is no justification for issuance of such order. Considering all relevant documents, such as Agrawal Commission’s Report, Supreme Court’s Order and approval of the Syndicate, 10 petitioners were absorbed in their service vide Annexure-3 and 4 to the Writ Application. There was no reason for issuance of impugned order, shifting petitioners’ date of absorption. In the Writ Application it has been stated by the petitioners that the Syndicate which is the highest body has given approval for petitioner’s absorption with effect from the particular date. The Vice Chancellor and the University had no authority for shifting it. Without even issuing any notice to show-cause to the petitioners. This order has been passed against the petitioners, on the basis of show-cause-notice issue earlier to the petitioners regarding their termination. The Vice Chancellor has passed impugned order contained in Annexure-9, by some non-existent reason and not for any legal reason. Accordingly, the order contained in Annexure-9, whereby petitioners’ date of absorption has been shifted to the year 1988, is quashed. The date of petitioners’ absorption will be same as it is notified in Annexure-3 and 4 of the Writ Application. With the aforesaid observations / directions, this Writ Application is allowed. SKM (Mridula Mishra, J.)