IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.191 of 2009 Dr. Sikandar Rai, son of late Jung Bahadur Rai, resident of Village Bangali Tola, P.S. Lahariya Sarai, Dist. Darbhanga. ----- Petitioner Versus 1. The State of Bihar through its Secretary, Higher Education, Govt. of Bihar, Patna. 2. The Lalit Narayan Mithila University, Darbhanga through its Registrar having its office at Darbhanga. 3. The Registrar Lalit Narayan Mithla University, Rameshwar Nagar, Dist. Darbhanga. 4. Vice Chancellor L.N. Mithala University, Kameshwar Nagar, Darbhanga. 5. The Principal M.L.S.M. College Darbhanga. 6. The Chancellor L.N. Mithala University, Kameshwar Nagar, Darbhanga, having its office at Raj Bhawan at Patna. ---------- Respondents ----------- 9 15.11.2011 Heard Mr. Jaganath Singh, learned counsel for the petitioner and Mr. A.B. Sinha, learned counsel for the Lalit Narayan Mithila University as also Mr. Manoj Kumar, AC to SC-6 for the State. 2. In this writ application, the petitioner has made the following prayer:- “1. That this is an application for issuance of writ in the nature of certiorari or any other appropriate writ/order/direction for quashing the letter No. 13595/2008 dated 8.11.2008 issued under the signature of Registrar Lalit Narayan Mithala University Kameshwar Nagar Darbhanga (Annexure-8) directing the petitioners to submit their show cause against their dismissal of service by not finding their 2 regularization/absorption as legal and in accordance with law, in contrary to the entire principles/procedures/rules as well as without initiating any departmental proceeding, without giving any appropriate opportunity to the petitioner to suggest the respondents that their absorption of service is in accordance with the procedures/rules by adopting a method which is unknown to law with a further direction to the respondents to make the payment of due salary as well as regular salaries to the petitioner and also prohibiting the authorities of the university not to issue such show cause notice without initiating any departmental proceeding/a full fledge departmental proceeding prior coming to such finding and or prior issuing such show cause notice.” 3. Mr. Singh, learned counsel for the petitioner, assailing the impugned show-cause notice dated 8.11.2008, has submitted that once the University had issued the order on 4.7.2005 regularizing the service of the petitioner, it had no jurisdiction to issue the impugned show-cause notice, inasmuch as, the earlier decision dated 4.7.2005 was passed on the recommendation/decision of the Senate of the University whereas the impugned show-cause notice has been issued only with approval of the Vice Chancellor of the University. He has further submitted that the name of the 3 petitioner was already included in a Government order dated 24.2.1990 absorbing him in the University service and when validity of such Government order was also upheld by the Apex Court in the case of State of Bihar & Ors. Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors. reported in 2005(1)PLJR SC 465, the impugned show-cause notice must be held to be wholly without jurisdiction. He has finally contended that as there is a direction for payment of salary of the petitioner in the interim order passed in such very case on 28.7.2011, the impugned show-cause notice seeking to remove the petitioner from service cannot be sustained even otherwise either on fact or in law. 4. Mr. A.B. Sinha, learned counsel for the University, having filed his counter affidavit has submitted that the claim of the petitioner that he was working teachers of M.L.S.M. College, Darbhanga (hereinafter to be referred to as ‘the College’) and as such was entitled for his absorption after the college became the constituent unit is wholly unsustainable, inasmuch as, the name of the petitioner does not find figure in the report of the Justice Agarwala Committee 4 either in Annexure IIIA and/or IVA of the Justice S.C. Agarwala Commisison constituted by the Apex Court for examining the issue relating to absorption of the teaching and non-teaching employees of the 36 constituent colleges including the college in question. He has also refered to the order of the Apex Court in the case of Mahasangh (supra) to contend that there was specific direction to the University to exclude the name of such persons whose names were not recommended for absotption by Justice S.C. Agarwala Commission. Explaining further, he has submitted that the claim of either absoption or payment of salary of the petitioner on the basis of his name figuring in the letter of the State Government no. 36/C dated 24.2.1990 is also not sustainable because the State Government has never released grant for payment of salary for the persons included in the list dated 24.2.1990. According to Mr. Sinha, when the University had terminated the services of the petitioner and others and some affected persons alike the petitioner had moved this Court and when the learned Single Judge set aside the termination order, the University had filed L.P.A. No. 1304 of 2009 which was 5 heard and decided by a Full Bench of this Court on 11.3.2010 wherein certain directions were issued for considering the case of the persons by a Two Men Committee but, the said order passed in L.P.A. No. 1304 of 2009 on 11.3.2010 was made subject matter of S.L.P. No. 14091 of 2010 wherein the Apex Court by an order dated 7.5.2010 had stayed the functioning of the Commission till further order. It is in this backdrop that Mr. Sinha has submitted that the State Government had released salary for only 94 teachers of the College which did not include the name of the petitioner and as such, the University was not in a position to pay their salary. 5. Mr. J.S. Arora, learned counsel for the State, on the other hand, has submitted that the State Government is only liable to release the payment of salary in respect of such of the teachers and non- teaching employees of the College whose appointments have been made in legal manner and for whom there is an order of the Apex Court approving the absorption as recommended by the Justice S.C. Agarwala Commisison. In this regard, he has also refered to the operative portion of the order of the Apex Court dated 6 12.10.2004 in the case of Mahasangh (supra) wherein it was specifically mentioned that the employee on identified by the Agarwala commission as appointed and working against the sanctioned post and recommended post up to 30.4.1986 were to be only absorbed and the Univresity was also directed to take a decision in the individual case of employees working and appointed against the sanctioned/recommended post up to cut-off date i.e. 30.4.1986. According to Mr. Arora, the State Government has taken a decision as to exclude all such employees for consideration of absorption/payment of salary whose names do not appear in the list of the Agarwala Commission under the heading sanctioned or recommended (R-1) post. Mr. Arora has also referred to the subsequent development as with regard to the direction given by the Full Bench of this Court on 11.3.2010 in LPA No. 1304 of 2009 constituting the Two Member Commission as also to the order of the Apex Court staying the working of the Comission in the S.L.P. No. 12591 of 2010. He has also submitted that the State Government has also filed a stay vacating petition in the Apex Court. According to the Mr. Arora, the 7 petitioner has also filed an application for payment of salary before the Apex Court in the pending SLP No. 12591 of 2010 but the Apex Court has only directed to list the application with the SLP No. 12591 of 2010. He has also given detail of the proceeding before the Apex Court relating to contempt application filed by the persons claiming payment of salary and in his view, the petitioner has to wait the decision of the Apex Court. 6. In the considered opinion ofthis Court, this writ application as against the show-cause notice cannot be entertained. The impugned show-cause notice in fact reads as follows:- ^^yfyr ukjk;.k fefFkyk fo'ofo|ky; dkes'ojuxj] njHkaxk i=kad 13595@08 fnukad 08&XI&2008 lsok esa ] Jh fldanj jk; lekt'kL=] ,e0,y0,l0,e0 dkWyst] njHkaxkA fo"k; % lsok lkeatu fof/kekU; ugha ik, tkus ds dkj.k lsok lekfIr ds laca/k esa dkj.k i`Nk A egk'k;] funs'kkuqlkj mi;qZDr fo"k; ds laca/k esa lwfpr djuk gS fd ekuuh; mPpre~ U;k;ky;@ mPp U;k;ky; ,oa jkT;kns'k ds vkyskd esa fo'ofo|ky; }kjk vkidh lsok dk lkeatu bl dk;kZy; ds i=kad 9877&9925@05 fnukad 9-7-05 ds }kjk fd;k x;k gSA ekuuh; dqykf/kifr dk fn'kk funsZ'k] egkU;k;oknh] Hkkjr ljdkj dk fof/kd jk;] ekuuh; mPpre U;k;ky; dk U;k;kns'k rFkk jkT;kns'k ds vkyksd esa flQZ oSls gh f'k{kdksa dh lsok dk lkeatu fof/kekU; gS ftudh ekuuh; vxzoky v;ksx }kjk Þ SÞ ,oa ÞR 1Þ dksfV esa fpfUgr fd;k x;k gSA fo'ofo|ky; }kjk lsok lkeatu laca/kh iwoZ fuxZr vkns'k esa mfYyf[kr ca/kst@ 'krksZ ds vkyksd esa vkidh lsok dh iquZleh{kk dh xbZA fo'ofo|ky; esa miyC/k vfHkys[k ds vk/kkj 8 ij vkidk uke ekuuh; vxzoky vk;ksx }kjk u rks Þ SÞ ,oa u gh ÞR 1Þ dksfV esa fpfUgr gSA Qyr% fo'ofo|ky; }kjk vkidh lsok dk lek;kstu laca/kh fuxZr vkns'k fof/kekU; ugha gSA vr% vkils vuqjks/k gS fd mi;qZDr ds laca/k esa vki viuk li"Vhdj.k i= fuxZr gksus dh frfFk ls 21 fnukad ds vH;Urj v/kksgLrk{kjh ds dk;kZy; esa tek djsa fd D;ksa ugha vkidh lsok lekIr dj nh tk;A ;fn fu/kkZfjr vof/k ds vH;Urj vkidk Li"Vhdj.k ugha izkIr gksrk gS rks ;g ekuk tk;xk fd vkidks bl laca/k esa dqN ugha dguk gS rFkk fo'ofo|ky; bl laca/k esa dksbZ Hkh fu.kZ; ysus esa LorU= gksxkA d`I;k bls vR;ko';d le>k tk;A fo'oklHkktu g0@& 8-11-08 dqylfpo g0@&** 7. In this regard, it has to be noted that the petitioner in stead of filing the show-cause reply had filed this writ application on 5.1.2009 and this case was kept awaiting the result of L.P.A. No. 1304 of 2009 which as noted above was referred to the Full Bench and was ultimately disposed of by an order dated 11.3.2010 with the following direction:- “35. Now presently to the realm of adjudication by the Commission. We are inclined to state that the Commission, as appointed by us, shall advert to the following issues:- (i) The employees whose names figured in List-III as has been held by the Apex Court in sub- paragraph-5 of paragraph 73 shall stand exluded. (ii) The Commission shall adjudge 9 the cases of each of the employees on the anvil of the Justice Agrawal Commission Report and the decision in Mahasangh case (supra), especially keeping in view of the paragraph 61 to 64 and paragraphs 73 and 74. (iii) The Commission shall also look into the cases of non-teaching staff on the anvil of the judgment passed in Mahasangh case (supra) and the recommendations of Justice Agrawal Commission. (iv) Each of the writ petitioners shall file their requisite brief before the Commission. The Registrars of the Universities shall produce all relevant records as directed by the Commission failing which they shall produce all relevant records as directed by the Commission failing which they shall be liable for contempt of this Court. (v) The Commission shall carry out the exercise and finalize the matter by he end of June, 2010 36. At this juncture, we may hasten to add though we have appointed a two-member commission and also ascribed the file of advertisement, we would like to clarify the position by issuing further directions. 10 (a) The employees who are working shall be paid their current salary. (b) Needless to say tht present order shall only relate to the cases which have been disposed of by this order. (c) It is hereby made clear that this Court has not expressed any opinion on merits with regard to any kind of statutory provisions as nothing has been referred to hereinabove. The Commission shall be totally guided by the decision of the Apex Court as well as by the report of Justice Agrawal Commission. (d) The decision of the Commission shall not be given effect to for a period of one month so that if it is against the writ petitioners they can assail the same. (e) The decision of the Commission can be challenged by either of the parties beore the appropriate legal forum. (f) The decision of the Commission shall be accepted unless it is challenged in a Court of Law. If the report is not assailed, the writ petitioners are at liberty to file an application for execution of the same before this Court.” 8. In view of the fact that the functioning 11 of the Two Men Commission has been stayed by the Apex Court and the issue has become subjudice, this Court could have itself decided the issue in hand but, then, as noted above, the matter has not been conclusively decided by the University which has only issued a show-cause notice to the petitioner. The submission of Mr. Jaganath Singh, learned counsel for the petioner, that such show-cause notice is contrary to the direction issued by this Court and the Apex Court in the case of Mahasangh (supra) does not impress this Court, inasmuch as, whatever plea on fact and or in law is sought to be raised by the petitioner can be placed by him in the show-cause reply. Normally, the writ court can only interfere with a show-cause notice only if it is wholly without jurisction. It is not the case of the petitioner and in fact cannot be that the University in view of its power under Section 4(1)(14) of the Bihar State University Act, 1976 is not empowered to take a final decision with regard to the absorption. The contents of the show cause notice would itself go to show that the University only wants to abide by the direction given by the Apex Court in the case of Mahasangh (supra). Thus 12 the defence of the petitioner that the direction given in the case of Mahasangh (supra) will not cover his case has to be also shown by the petitioner before the University itself. 9. The reliance placed by Mr. Singh on an order of this Court in a batch of writ application dated 1.9.2008 including the case of the petitioner CWJC No. 10517 of 2008 is also wholly misplaced, inasmuch as, the order of termination of the petitioner and others dated 21.6.2008 was set aside only on account of the violation of principle of natural justice. In fact, when this Court had in the aforesaid order clearly mentioned that it refrained from making any further observation in this context as it may affect the either party at a subsequent stage it becomes manifest that the respondent University had liberty to issue a fresh show-cause notice. In any event, this Court does not find any thing erroneous in the content of the show-cause notice, inasmuch as, the same only has been issued by way of carrying out the order of the Apex Court in the case of Mahasangh (supra). 10. In this regard it has to be noted that when the Apex court had constituted Justice S.C. 13 Agarwala Commission, it had made specific reference on four points and Justice Agarwala in his voluminous report had considered the case each and every college and had submitted his separate report. As with regard to the college in question, the report running into 143 pages as produced by the learned counsel for the Univesity will go to show that it had considered the cases of 185 teaching employees. The Commission after the detailed discussion had held that there were only 47 sanctioned post of Lecturer including 3 for the subject of Sociology in the College vide Annexure-1A to the report. Similalry it had also held that there were 30 sanctined post of Class-III and 44 post of Class-IV teaching employees. As with regard to the recommended post, it had held that there were 74 recommended teaching posts up to the cut- off date i.e. 30.4.1986 including 2 in the subject of Sociology. It has to be also mentioned here that the Commission had also separately found that there were 105 recommended teaching posts after the cut-off date including 8 in the subject of Sociology which was sent by the University to the State Govenrment on 3.5.1986. Such details of the recommended posts has been given in 14 Annexure-IIA of the report whereas the details of 17 recommended class-III post and 3 class-IV posts up to cut-off date i.e. 30.4.1986 and 27 class-3 post and 33 class-IV post after the cut-off date has been separately included in Annexure-IIB. 11. What is still more significant and infact also relevant to be found from the report of the Agarwala Commision is that it had again gone into the deteail of the teachers who were working on the date of the college becoming constituent and in the list of Annexure-IIIA wherein it has been included the names of as many as 172 teachers including 8 in the subject of Sociology, namely :- (i) Sri Tapo Nath Jha working since 8.11.1979 against sanctioned post (ii) Sri Ashok Kumar Jha working since 29.1.1980 against the sanctioned post (iii) Sri Damodar Jha working since 20.9.1980 against the sanctioned post (iv) Smt. Meena Jha working since 15.9.1983 against first recommended post 15 (v) Md. Shahid Hassain working since 27.8.1984 against second recommended post. (vi) Bishwanath Jha working since 29.1.1985 against a post recommended after the cut- off date/ not recommended post (vii) Sri Tej Naraian Thakur working since 7.2.1985 again against the post recommended after the cut-off date on non- recommended post (viii) Smt. Putul Singh working since 12.8.1985 also against the post recommended after the cut-off date on not recommended post. 12. The case of each and every of the 172 teachers included in the list Annexure-IIIA of the report was also separately considered without any report of Justice S.C. Agarwala Commission and while dealing with 71 teachers out of 172 including 5 in the department of Sociology namely Md. Shahid Hussain, Sri Tapo Nath Jha, Sri Damodar Jha, Smt. Meena Jha and Sri Bishwanath Jha, it was recorded that though they 16 did not posses the requisite qualification on the date of appointment but they had acquired such prescribed qualification and became eligible after the appointment. 13. There has been also a threadbare discussion with regard to all of the teachers of the College whose names were included in List-IIIB including the 5 persons named above in the department of Sociology. It is only, thereafter, that Justice S.C. Agarwala Commission had finalized the names of teaching staffs who could be considered for absorption either against the sanctioned post or the recommended post vide Annexure-IVA of the report wherein it had arranged the names as per the eligibility and had placed the name of eight teachers of the department of Sociology, namely, (1) Ashok Kumar Jha, (2) Sri Tapo Nath Jha, (3) Sri Damodar Jha, (4) Md. Shahid Hussain, (5) Smt. Meena Jha against the three sanctioned and two recommended post up to the cut-off date i.e. 30.4.1986 and had also indicated the name of Sri Tej Naraian Thakur, Smt. Putul Singh and Sri Bishwanath Jha at serial no. 6, 7 & 8 with a remark that no payment was made to them after the college had become constituent. 17 14. When such report of the college of the petitioner along with other similar reports of the other constituent colleges of the fourth phase was placed before the Apex Court the appeal of the State of Bihar was disposed of with by accepting the recommendation of Justice S.C. Agarwala Commission wherein it was also stated that the last date for recommended post would be 30.4.1986 and anyone continuing in the college on the post recommended after 30.4.1986 would not be entitled to claim absorption. Having held so, it had issued the following direction in paragraph no.74 of the judgment in the case of Mahasangh (supra), which reads as follows:- “74. 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.” 15. It has to be thus noted that the name of the petitioner who claims to be Lecturer in the Sociology in the college since 17.5.1985 does not find place either in the list of 172 teachers who were shown to be working on the date of college becoming constituent or 18 even in the list of teachers who were found fit by Justice S.C. Agarwala Commission for absorption vide Annexure- IVA. 16. In view of the above, it cannot be said that the University had also no power to at least issue a show-cause notice to the petitioner while it was seeking to comply the direction of the Apex Court. True it is that the petioner has based his claim on the basis of Government letter no. 36/C dated 24.1.1990 but then what would be its relevance and validity after the judgment of the Apex Court in the case of Mahasngh (supra) had to be decided by the University in terms of Section 4(1)(14) of the Act. 17. It is also well settled that normally a show-cause notice would not be amenable to writ jurisdiction, inasmuch as, such an order is only tentative order by which a person is given chance to explain his case. It is only in rare of the rarest cases that a show- cause notice can be quashed under writ jurisdiction in exercise of power under Section 226 of the Constitution of India. Reference in this connection may usefully made to the judgment of Apex Court in the case of 19 Union of India Vs. Kunisetty Satyanarayana reported in (2006)12 SCC 28 where it has been held as follows:- "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show cause notice vide Executive Engineer, Bihar State Housing Board V. Ramesh Kumar Singh (1996)1 SCC 327, Special Director V. Mohd. Ghulam Ghouse (2004)3 SCC 440, Utagappa V. Divisional Commr., Mysore (2001) 10 SCC 639, State of U.P. V. Brahm Datt Sharma (1987) 2 SCC 179, etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authoritiy concerned may drop the proceedings and/or hold that the charges are not established. it is well settled that a writ petition lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show cause notice or charge-sheet. 20 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." 18. Thus in the light of law laid down by the Apex Court and the facts of the case of the petitioner this Court is not inclined to interfere with the impugned show cause notice issued by the University cannot be held to be without jurisdiction. The fact