IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3017 of 2006 1. BABU SAHEB JHA, son of Sri Laladhar Jha, resident of village Lagma, P.S. Sakatpur, District Darbhanga at present posted Lecturer and Head of Department of Philosophy, M.L.S.M.College, Darbhanga 2. Dr. Nirbhay Narayan Choudhary, son of Sri Bhola Choudhary, resident of village Nadiyamy, P.S. Sakatpur, District Darbhanga, at present Lecturer and Head of Department of Physics, M.L.S.M.College, Darbhanga 3. Riddhi Nath Jha, son of Late Pandit Shiv Nath Jha, resident of village Sarisab (West), P.S. Sarisab Pahi, District Madhubani, at present posted as Lecturer and Head of Department of Geography, M.L.S.M.College, Darbhanga 4. Dr. Shesh Narayan Jha, son of Sri Subh Narayan Jha, resident of village Koilash, P.S. Rajnagar, District Madhubani, at present posted as Lecturer and Head of Department of History, M.L.S.M. College, Darbhanga ... Petitioners Versus 1. THE STATE OF BIHAR 2. Secretary, Department of Higher Education, Govt. of Bihar, Patna 3. Lalit Narayan Mithila University, through its Registrar, Kameshwar Nagar, Darbhanga 4. Vice Chancellor, Lalit Narayan Mithila University, Kameshwarnagar, Darbhanga ... Respondents --------- For the petitioners: Mr. Vinod Kanth,Sr.Adv. with Mr. Lalit Narain Jha,Adv. For the State : A.C. to S.C.IX For the University : Mrs. Shail Kumari Jha,Adv. --------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha,J., Having heard learned counsel for the petitioner, State and Lalit Narayan Mithila University (hereinafter referred to as the University) as with regard to the following 2 relief prayed for by the petitioners in this writ application: “(I) For commanding respondent Lalit Narayan Mithila University, Darbhanga and its authorities to modify its notification issued vide Memo No. 2707-2834/05 dated 28.2.2005 (Annexure 16) by which the services of the petitioners have been absorbed/ regularized under L.N.Mithila University service, Darbhanga with effect from 10.12.1984 i.e. the date on which the order for sanction of the post was issued by the State Government. (II) For commanding respondent Lalit Narayan Mithila University and its authorities to regularize/ absorb the services of the petitioner under L.N.Mithila University, Darbhanga with effect from the respective date of their joining on the post of Lecturer in their respective subject in M.L.S.M. College, Darbhanga.” this Court is of the considered opinion that something is amiss in the University as with regard to the concept of absorption in terms of section 4(1)(14) of the Bihar State Universities Act, 1976 (hereinafter referred to as „the Act‟). 2. The College in question, Maharaja 3 Lakshmishwar Singh Memorial College, Darbhanga, is one of the 36 Colleges which were made constituent pursuant to the formal decision of the State Government taken and notified on 16.8.1986. It was thus within the domain of the University to decide the cases of absorption of the working teaching and non-teaching employees of newly made constituent colleges as per terms and conditions laid down by the State Government in its letter dated 17.8.1986 but for some reason the same could not be done for quite a long period of more than a decade and ultimately the issue arose before this Court at the instance of Bihar Rajya Mahavidyalaya Sikshak Awam Sikshketar Karamchari Kalyan Mahasangh and when this Court in its judgment in the case of Bihar Rajya Mahavidyalaya Sikshak Awam Shikshetar Karmachari Kalyan Mahasangha vs. State of Bihar, reported in 1997(1) PLJR 533, had held that the concerned University is fully competent to take a decision for passing order of absorption in terms of section 4(1)(14) of the Act without any interference from the Vigilance Department of the Government of Bihar the matter was taken in appeal by the State of Bihar to the Apex 4 Court and judgment of the Apex Court has been also reported in (2005) 9 S.C.C. 129. 3. The Apex Court finding the issue rather un-necessarily to have been prolonged for almost two decades only name in the name of an enquiry as with regard to continuation of legally appointed and working teaching and non- teaching employees of 36 newly made constituent colleges had constituted Justice S.C.Agrawal Commission for making a recommendation on four specific issues including the eligibility of the concerned teaching and non-teaching staff for their being absorbed in the university service as has been noted in paragraph no. 16 of the judgment of Apex Court in Mahasangha case supra, reading as follows:- "Aggrieved by the judgment and the directions made by the High Court, the State of Bihar has preferred this appeal. From the record of the proceedings in this appeal, it seems this Court thought that before the universities are directed to implement the order of the High Court and to complete the process of absorption of employees of various categories in the constituent colleges, an independent enquiry is required to be made through a High Power Commission so as to identify the alleged bogus appointees in various affiliated colleges who sneaked into the services of the erstwhile affiliated colleges in connivance with the authorities of the various colleges and universities of the State. With the above view, after 5 adding new State of Jharkhand as a separate party (as a result of bifurcation of the State of Bihar into two States), this Court by order dated 12.10.2001 appointed Shri Justice S.C. Agrawal, retired Judge of this Court as a one-member Enquiry Commission to go into the various controversies and disputes with regard to the absorption of employees of the erstwhile affiliated colleges in the services of the converted constituent colleges. The terms of reference to be answered after enquiry, by the one-member Commission of the Hon'ble retired Judge read as under: "Terms of reference 1. How many sanctioned posts of teachers and non-teaching employees were there in the 40 colleges which were converted into constituent colleges pursuant to the sanction letter dated 19.8.1986 of the State of Bihar? 2. How many proposals with regard to creation of posts for teachers and non-teaching employees had been submitted to the Education Department of the State of Bihar or universities before 30.4.1986, the cut-off date mentioned in Appendix 'Kha' (p.208 of SLP) with respect to 36 colleges converted into constituent colleges as per government letter dated 19.8.1986? (List of colleges is at pp.206-07 of SLP and other dates mentioned in government communications in respect of four other colleges.) 3. How many teachers and non- teaching employees seeking absorption in the constituent colleges were not appointed through selections made by the College Service Commission/University Service Commission and whether they possess the basic qualifications prescribed by the Act and 6 statutes? This exercise will be without prejudice to the contention of the respondents that Section-57-A is not applicable to such selection, as has been held by the High Court in the judgment. 4. How many teachers and non- teaching employees would be entitled to absorption on the basis of the government letter dated 19.8.1986 and Appendix 'Kha' and the agreement entered into between the university concerned and the constituent college under Section 4(1)(14) of the Bihar State Universities Act, 1976 and other orders of the Government?" 4. The Agrawal Commission thereafter went into each and every detail and had submitted its report in four parts on 19.12.2003 to the Apex Court. Part IV contained the gist of the recommendation wherein it had also specifically prepared a namewise list of teaching and non-teaching employees of all 36 newly made constituent college who were found to be fit for being absorbed from service. The Agrawal Commission did not in fact leave any matter for speculation, inasmuch as it had also gone into the individual cases of absorption on the basis of their respective date of appointment/ date of eligibility, inasmuch as many of such teaching personnel who were appointed by the private governing body 7 initially did not possess the requisite qualification and/or against non-existing and unsanctioned post. That is how Annexure IVA in respect of each of the College in the recommendation of Agrawal Commission specifically contained the name of the person, the department in which he was working as Lecturer and the date of appointment as also the date of eligibility for absorption in the service of University. 5. It is also not in doubt that the recommendation of Agrawal Commission so far it relates to persons shown to have been working either against sanctioned post or recommended post upto 30.4.1986 vide Annexure-IV A for each of 36 colleges have been accepted in toto by the Apex Court in its judgment as would be apparent from its following extract quoted hereinbelow:- "After reading the report of the Commission and considering the objections raised to it by the various parties before us, in our opinion the report of the Commission proposing rejection of the revised list submitted by the Screening Committee on 30.1.1987, which shows inclusion or exclusion of certain names from its original list, deserves to be accepted. So far as the qualifications of the various categories of holders of teaching and non-teaching posts are 8 concerned, the Commission has gone into contents of the various statutes prescribing the qualifications for different teaching posts pursuant to the recommendations of the University Grants Commission which were adopted by the universities with implementation of revised scales of pay. In our opinion, decision on absorption of the existing teaching and non-teaching staff of the affiliated colleges, which are taken over as constituent colleges, is within exclusive jurisdiction of the universities concerned. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualification, if any, for the teaching and non-teaching post, is required to be taken by the University based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained in this judgment. In answer to term of Reference 4 requiring identification of teachers and non-teaching employees who are entitled to absorption on the basis of government resolution dated 19.8.1986 and the agreements entered into between universities and the colleges concerned, the Commission after a thorough enquiry and probe into records of the various colleges has given three separate lists - (i)teachers appointed against the sanctioned posts have been placed in the order of the date they became eligible for consideration; (ii)list of teachers appointed against posts for which the recommendations were sent by the universities to the State Government up to the cut-off date are arranged in the order of the date they became eligible for consideration; and (iii)list of teachers appointed against posts for which recommendations were sent by the universities to the State of Bihar 9 after the cut-off date and those for which no recommendations were sent by the universities. After hearing the counsel appearing for various parties and considering their objections, we find no difficulty in accepting the report of the Commission so fare as List (i) containing names of employees working on sanctioned posts and List(ii) containing names of employees working on posts for which recommendations were sent by the universities to the State up to the cut-off date. So far as List(iii)is concerned, it has been seriously objected to by the State Government and, in our opinion, there is justification for it. The teachers, who were appointed against the posts for which recommendations were sent by the universities to the State after cut-off date or for which there were no recommendations sent by the universities, can claim no right of consideration for absorption, whatever may be the reasons for alleged delay in sending recommendations. It is likely that due to fortuitous circumstances some recommendations which could have been sent by the universities to the State were not submitted before the cut-off date, nonetheless, on the basis of clear terms of the government resolution, such appointees working on posts recommended after cut-off date can legitimately claim no right of being considered for absorption." The Apex Court having discussed all possible facets had directed the Universities to pass individual order in respect of teaching and non-teaching personnel in the following terms:- "Most of the objections to the report of the Enquiry Commission are based on the reports of the various committees set up by the State and the recommendations of the universities. Thereafter, we set up an Enquiry 10 Commission which has given its report. It is, therefore, not possible to grant any relief or directions in favour of the objectors on the basis of the reports of the various committees and recommendations of th universities. We have now directed the universities concerned, in respect of colleges within their respective jurisdiction, to issue formal orders of absorption in the constituent colleges on the basis of the report of the Enquiry Commission and in the light of our judgment. In some of the written objections, certain mistakes of names and descriptions of employees in the report of the Commission have been pointed out. Such mistakes in the report of the Commission may be brought by the affected employees to the notice of the universities concerned. It would be open to the universities, for the above limited purpose to undertake enquiry and verification of the records to rectify and rely upon the report of the Commission with the necessary corrections only with regard to the names and descriptions of the employees. In view of this judgment and the directions made herein to the university to take a final decision based on the report of the Enquiry Commission, all the applications for impleadment as parties and objections filed to the enquiry report are rejected. It is for the university to take a final decision concerning the individual employees. For the same reason, no further orders are required on the interlocutory applications seeking certain directions pending the appeal and for modification of earlier orders made. Other interlocutory applications also need no further directions or orders. The all stand disposed of. Conclusions 1. the judgment of the High Court, to the extent of the 11 interpretation placed by it on the provisions of Section 4(1)(14) and Section 35 with the directions issued in paras 24 to 26 therein, is hereby confirmed for the reasons recorded by us above. 2. The report of the Commission of Enquiry of Hon'ble Justice S.C. Agrawal (Retired), is accepted and all objections filed against the said report are rejected. 3. The members of the staff in various affiliated colleges identified and named in List(i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect that be issued by the universities concerned. 4. The universities shall take a decision under Section 4(1)(14) of the Act in the matter of absorption of appointees named in List(ii) of the report of the Commission, being appointees against posts for which recommendations were sent by the universities to the State up to the cut-off date in accordance with the decision of the State Government conveyed in its letter dated 19.8.1986 followed by letters dated 25.8.1986 and 12.6.1987. In considering the question of absorption of appointees named in List(ii) of the report of the Enquiry Commission, the universities concerned shall rely on the contents of the report of the Enquiry Commission and the present judgment of this Court. 5. The appointees mentioned in List(iii), being the appointees against posts for which recommendations were sent by the universities to the State Government after the cut-off date or those working against posts for which no recommendations were 12 sent for approval of the State Government, hjave no right of being considered for absorption - whatever may be the fortuitous circumstances or otherwisde in the matter of not sending recommendations for sanction in their cases. The negative report of the Enquiry Commission with regard to List(iii) is accepted and the universities are directed to exclude all such appointees named in List (iii) from consideration for absorption. 6. A large number of objections to the report of the Enquiry Commission filed before us by associations of employees and individuals pertain to the alleged lack of prescribed qualifications for the posts on which they are working. All those objectors have not been recommended for absorption in the report of the Enquiry commission. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for he teaching and non- teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained above. The universities concerned shall now complete the process of absorption of the staff of the affiliated colleges (teaching and non-teaching) in the manner and to the extent stated above in our judgment within a period of four months from the date of receipt/production of the copy of this order." The impugned order in this case has been passed only by way of such an exercise in terms of the 13 direction of the judgment of the Apex Court. 6. From the impugned order, however, it would be appear that the services of the petitioners have been absorbed with effect from 10.12.1984 and the grievance of the petitioners is only confined to this particular date of their absorption, inasmuch as it is claimed by all of them that this artificial date of 10.12.1984 can have no rationale, especially when at least in the cases of the petitioners either their date of appointment or their eligibility as was decided by Justice S.C.Agrawal Commission was altogether different. In fact Mr. Vinod Kanth, learned Senior counsel for the petitioners, went to also indicate that the order of sanction of post in case of the College of the petitioners having been issued on 10.12.1984 would not mean that such post were actually created on 10.12.1984 so as to make the same as the basis for absorption in the service of the University w.e.f. 10.12.1984. It is in this context that he has also invited attention to the order of the State Government, as contained in Annexures 9, 10 and 12, which in his submission had the cumulative effect of dating back the 14 affiliation to the College in question with effect from 1979-1980 session. On the basis of these orders of the affiliation especially the last one giving retrospective affiliation to the College of the petitioners with effect from 1979-1980 session, Mr. Kanth has tried to synchronize the same also with the recommendation of Agrawal Commission putting exactly the same date for absorption in respect of the petitioners by way of their date of appointment and/or their date of eligibility. In sum and substance Mr. Kanth has tried to assail the impugned order on the ground that it is basically against either the provisions of the Act which does not envisage absorption from the date of sanction of post in a constituent college or in teeth of the recommendation of Justice S.C.Agrawal Commission which has been accepted in toto by the Apex Court. 7. Mrs. Shail Kumari Jha, learned counsel appearing on behalf of the University, as also learned counsel for the State adopting submission of Mrs. Jha, on the other hand, has projected a picture for justifying the date of 10.12.1984 in the impugned order. According to her the university was not supposed to be a 15 Post-office in fixing the date of absorption, inasmuch as a conscious exercise was to be done by the University for finding out the four eligibility conditions, namely, the date of their appointment/ the date of sanction of the post/ cut-off of recommendation of the post i.e. 30.4.1986/ the date of eligibility and the order of absorption was to be dated from such a date whichever was later in the four categories. She has also tried to explain the report of the Agrawal Commission by taking a plea that the job of Agrawal Commission was confined only to recommend personnel found fit for absorption in the University service and it had no jurisdiction to assign any specific date of absorption. To that extent she had concentrated on the aspect that initial appointment of the petitioners of their respective post of Lecturer in the affiliated college was itself illegal and her plea in this regard is that since such appointment of the petitioner was not backed by a valid recommendation of College Service Commission in terms of Section 57(a)(3) of the Act and as such, the University was fully justified to have given them the date of absorption from 16 the date of 10.12.1984 when the State Government had sanctioned the post of Lecturer occupied by them in the College. 8. In the considered opinion of this Court the moment the University in the impugned order had adopted four criteria for fixing the date of absorption including also the date of eligibility and the date of recommendation of the post i.e. 30.4.1986 it had sought to implement only the recommendation of Justice S.C.Agrawal Commission as accepted by the Apex Court. The issue before the Agrawal Commission was also for absorption of such persons who were appointed by the private governing body, even when there was no sanctioned post and/or the proposal for sanction of such post was pending before the State Government. That is how the concept of the recommended post upto 30.4.1986 in terms of the formal decision of the State Government issued at the time of these Colleges being made constituent on 16.8.1986 had emerged because the State Government had clearly indicated that in large number of affiliated colleges posts could not be sanctioned and for which the recommendations having been made by the concerned university 17 were awaiting a final decision of the Government. Therefore, there were two types of post in all these 36 Colleges, namely, sanctioned post and recommended post upto 30.4.1986. 9. The petitioners admittedly are holders of the first post in their respective departments of their College and for them the Government had granted the affiliation on 19th February, 1983 by which affiliation was given to the College of the petitioners with effect from 1980-1981 session upto B.A. level. The effect of this affiliation in terms of the order of the State Government dated 19th February, 1983 was that the first post of the Lecturers in these colleges were deemed to have been created and sanctioned from 1980-1981 session and that is how this issue has been decided by the Full Bench of this Court in the case of Braj Kishore Singh & ors. vs. the State of Bihar & ors., reported in 1997(1) PLJR 509. 10. The respondents in fact cannot be heard to say that this college in particular was not functioning even in the year 1979, inasmuch as the order which was passed by the State Government on 19th February, 1983 was only 18 recognizing the status of the college and giving them retrospective affiliation from 1980-1981 session. Subsequently on 7th April, 1984 the College was also given affiliation in Science and Commerce discipline and for them the cut-off date of affiliation was 1983-84 session. If the second order dated 7th April, 1984 had to be given its literal meaning and effect the post of teachers in Science faculty could have been deemed to have been created only in the year 1983 but then the State Government did not leave the matter for such confusing speculation because the university itself had in the letter dated 29.6.1984 pointed out the fact with regard to functioning of the college in all the three faculties even prior to date assigned in the aforementioned two orders. Consequently the Government had taken a conscious decision by an order dated 13.10.1984 by which both the orders dated 19.2.1984 and 7.4.1984 (Annexures 9 and 10) giving affiliation to the college in Arts faculty from 1980-81 session and in the Science faculty from 1983-84 session respectively were given retrospective operation by giving them such affiliation from 1979-80 session. It, 19 thus, becomes clear that the functioning of the college was not only accepted by the University and the State Government from the year