IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.9362 OF 1999 BIRENDRA NARAYAN CHOUDHARY, S/O SRI EKBAL NARAYAN CHOUDHARY, R/O VILLAGE KOTHIA, POLICE STATION BHAIRAV ASTHAN, DISTRICT MADHUBANI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH ITS SECRETARY HIGHER EDUCATION, NEW SECRETARIATE, PATNA. 2.THE KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, THROUGH ITS VICE CHANCELLOR, DARBHANGA, BIHAR. 3.THE VICE CHANCELLOR, KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, DARBHANGA. 4.THE REGISTRAR, KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, DARBHANGA. 5.THE GOVERNING BODY, KRIT NARAYAN KAMAKHYA SANSKRIT COLLEGE, MAHRAIL, MADHUBANI, THROUGH ITS SECRETARY. 6.THE PRINCIPAL, KRIT NARAYAN KAMAKHYA SANSKRIT COLLEGE, MAHRAIL, MADHUBANI. 7.SRI JAI RAM JHA, S/O LATE MAHABIR JHA, R/O VILLAGE ALPURA, P.S ANDHRATHARI, DISTRICT MADHUBANI. 8.UMESH MISHRA, S/O KRIT NARAYAN MISHRA, R/O VILLAGE MAHRAIL, P.S ANDHRA THARI, DISTRICT MADHUBANI. ………………………RESPONDENTS. ----------- 11/ 18.08.2011 Heard counsel for the parties. Learned counsel for the petitioner as with regard to the following prayer: “a. Part of the judgment dated 12.01.1998, passed in C.W.J.C No. 5444/96, by this HOn’ble Court, directing that the post of lecturer in Maithli, will be deemed to be approved since the year, 1979, by virtue of affiliation of College, granted by the State Government, by letter dated 08.07.1981 and while allowing payment of salary to the respondent no. 8 for the period , he has actually worked, this Hon’ble Court has observed that the same will not stand in the way of payment of salary to the respondent no. 7. The petitioner has got no grievance regarding payment of salary to the respondent no.8. 2 b.Office order of the Respondent- University communicated by the respondent no. 4 vide memo no. 8660/1999 dated 1.9.99 by which in partial modification of respondent University’s earlier order, payment of salary has been allowed to Respondent no. 7 from the date, the same was withheld and the payment of salary of the petitioner has been withheld until further orders. c. The petitioner also prays for issuance of a writ in the nature of Mandamus directing the respondents concerned to make payment of salary to the petitioner, which is in arrear since June, 1999 and the current salary.” would submit that the petitioner being a Lecturer in the subject of Economics which was the modern subject being taught in the Krit Narayan Kamakhya Sanskrit College, Mahrail, Madhubani affiliated to Kameshwar Singh Darbhanga University, Kameshwar Nagar, Darbhanga (hereinafter referred to as the University) would be entitled for payment of salary against the sole post of modern subject and that stoppage of payment of salary of the petitioner by diverting the fund of the State for payment of salary to the respondent no. 7, holding the post of Lecturer in Maithili would be contrary to the scheme of sanctioned post for the Sanskrit Colleges receiving fund for 3 payment of salary from the State Government. He would submit that the earlier order passed by this Court dated 12.01.1998 in C.W.J.C No. 5444 of 1996 holding the respondent no. 7 to be entitled for payment of salary against the post of modern subject is not sustainable and in any event not binding on the petitioner as he was not made party to the aforementioned writ application. He would further submit that the post of Lecturer in Maithili was in fact never included in the modern subject and that when ultimately the Governing Body and the University had recommended to the State Government for sanction of the post of Lecturer in Maithili, the State Government had turned down such proposal. He also relies on the aspect that Maithili as modern subject for the first time was included in the University Curriculum in 1997. Mr. Binod Krishna Jha learned senior counsel appearing on behalf of respondent no. 7 on the other hand would submit that this very issue as with regard to the appointment and continuation of payment of salary of respondent no. 7 was earlier 4 assailed by one Umesh Mishra, a Lecturer in Hindi of the same College in C.W.J.C. No. 5444 of 1996 wherein, this Court by an order dated 12.1.1998 had had held that the respondent no. 7 will be deemed to be the person appointed against the post of Lecturer for modern subject and consequently a direction was also given for payment of his salary in the aforesaid order of this Court. He has also submitted that the said order even after being the subject matter of review at the instance of the University was not interfered and the review application of the University was also dismissed by this Court. Counsel for the University on the other hand has taken a plain and simple plea that it has to abide by the norms laid down by the State Government, wherein, a Sanskrit Affiliated College receiving financial aid from the State Government has to make payment of salary only against 10 sanctioned posts out of which six posts are meant only for the oriental subject of Sanskrit, one each for English and Hindi and the other one for Sanskrit and last one for the modern subject. He has, 5 accordingly, proceeded on the basis that under the staffing pattern when a direction in the order of this Court dated 12.1.1998 had already been issued for payment of salary to respondent no. 7 of this case against the solitary teaching post of modern subject, there would be no question of allowing payment of salary to any other Lecturer of the College including the petitioner working on the post of modern subject. In the considered opinion of this Court, the prayer of the petitioner questioning the judgment of this Court dated 12.01.1998 passed in C.W.J.C NO. 5444 of 1996 seems to be wholly misconceived, inasmuch as, if the petitioner was adversely affected, in any way, by the said judgment, he even without being a party could have filed an appeal against the said judgment by seeking leave of the Appellate Court. Additionally, this court would find that when the review application of the University had already been dismissed against the order dated 12.01.1998 holding respondent no. 7 to be entitled for payment 6 of salary against his sole post of modern subject, this court cannot sit in appeal on the findings recorded in the said order. Thus this writ application on the face of record is not maintainable and is dismissed with a liberty to the petitioner to file an appeal, if he still feels aggrieved on account of denial of his payment of salary on the post of Lecturer in Economics. The apprehension of the petitioner that such an appeal may be held to be barred by limitation is also misplaced inasmuch as it will be always to the petitioner to seek condonation of delay in filing of appeal by explaining that this writ application was filed on 16.09.1999 and had remained pending. Thus for the reasons recorded above this Court does not find any merit in this application and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)