IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9709 of 1996 ARUN KUMAR CHOUDHARY son of Sri Rameshwar Prasad Choudhary, resident of Village Bareta, P.S. Bareta, District Katihar. Versus 1.Bhup Narain Mandal University, through its Registrar, Madhepura, District Madhepura. 2.The Vice-Chancellor, Bhup Narain Mandal University, Madheura, District Madhepura. 3.The Registrar, Bhup Narain Mandal University, Madhepura, District Madhepura. 4.The Principle K.B. Jha College, Katihar, District Katihar. ----------- For the Petitioner : Mr. Subodh Kumar Jha, Advocate For the University : Mr. Hemendra Prasad Singh, Advocate For the State : Mr. Rajeev Kumar, A.C. to S.C.-16 ----------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (15/07/2010) Mihir Kumar Jha, J. Heard Mr. Subodh Kumar Jha, learned counsel for the petitioner, Mr. Hemendra Prasad Singh, learned counsel for the University as also Mr. Rajeev Kumar, A.C. to S.C.16 for the State. 2. In this writ application prayer of the petitioner reads as follows:- “That this application is being filed for issuance of an appropriate writ/ writs, order or orders for quashing the communication dated 18.5.96 issued by the Respondent no.4 as contained in Annexure-9 to this application and as much for quashing the order bearing No. G/S- 3765- 3770/96 dated 16.5.96, issued under the signature of Respondent No.3, by which the service of petitioner as Lecturer in the department of commerce from K.B. Jha College, Katihar has been terminated, without giving any reasonable opportunity of being heard or without following any procedure, contrary to the order passed by this Hon‟ble Court regarding “Status-quo” with respect of teachers working in newly constituted college and further for a direction to respondent authorities to pay the arrear of salary to the petitioner with interest and cost and further for any other appropriate relief or reliefs for which the petitioner is entitled in the facts and circumstances of this case.” 2 3. Mr. Jha, learned counsel for the petitioner while pressing the aforementioned relief has submitted that it is not in doubt that the petitioner was appointed on the post of Lecturer in the K.B. Jha College, Katihar (hereinafter referred to as the College) by order dated 7.7.1986 issued by the Convener of the College. He would accordingly submit that when this College became constituent the petitioner ought to have been absorbed in terms of section 4 (14) of the Bihar State Universities Act (hereinafter referred to as the Act). 4. In this context he has placed reliance on the judgment of 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) P.L.J.R. 465 (S.C.) with special emphasis on Sub. Paragraph I of paragraph 73 under the head „conclusion‟. Mr. Jha, in this context has submitted that the impugned order terminating services of the petitioner as contained in Annexure-8 cannot be sustained because the same was passed in violation of principles of natural justice. He has also submitted that as there being an inter- party order directing for payment of salary to the petitioner, this Court should at least direct for payment of salary to the petitioner for the period from 19.4.1994 to 18.5.1996. 5. Learned counsel for the University has, however, opposed such prayer on the ground that the issue relating to absorption of the teaching and non teaching employees of 36 Colleges including the College in question stands concluded in the case of Mahasangh (Supra), wherein the Agrawal‟s Committee 3 report with regard to each and every colleges and in fact each and every department thereof has been accepted by the Apex Court. It has also been contended that the petitioner‟s appointment in the College itself was in teeth of section 57 A of the Bihar State Universities Act, inasmuch as, neither the post was advertised nor there was any process of selection undergone and in fact after the Government had already made an announcement to take over the College, the adhoc committee surreptitiously had sought to introduce the petitioner as a teaching member of the College which got exposed in view of findings of the Justice Agrawal Commission. It has therefore been contended that such void of the petitioner was appointment never recognized much less absorbed by the University under section 4 (14) of the Act and therefore the petitioner would not be entitled even for payment of his salary. 6. Having considered the aforementioned rival contentions as also the materials o records, this Court is of the opinion that the alleged appointment of the petitioner vide letter No. 107/1986 with a cutting in the date 7.9.1986 later on scored over 7.7.1986 has a direct bearing on the validity of appointment of the petitioner. It has to be noted that after the Government had made announcement on the floor of assembly in the Monsoon Session with regard to taking over 40 Colleges including College of the petitioner, a formal Government notification was issued on 16.8.1986 with regard to take over of 36 Colleges including College of the petitioner. Therefore, if a appointment letter of the petitioner has been created in the date of 7.9.1986 after the 4 Government letter dated 16.8.1986 containing its formal decision of the Government dated 16.8.1986, such appointment by the ad- hoc committee on a post of lecturer in an affiliated college, in teeth of Section 57A of Bihar State Universities Act without advertisement in newspaper and recommendation of College Service Commission being a void appointment either in the date of 7.9.1986 or even 7.7.1986 could have conferred no right to the petitioner for being absorbed in service of University. 7. As a matter of fact, this aspect of the matter that the petitioner was not even continuing on the date of take over of the College gets confirmed from the report of Justice Agrawal Commission which has prepared a list of teaching and non teaching employees who were found working in the College on the date of its being taken over (conversion), Such list vide III-A of the Agrawal Commission report of teachers found fit to absorption in respect of the College in pages 360 to 383 which also in a separate list-III records the names of as may as 73 working teachers including seven in the department of Commerce in which petitioner is said to have appointed on 7.9.1986 or 7.7.1986. The seven persons showing to be working in the department of Commerce are (1) Umeshwar Prasad Singh, (2) Shiv Kumar Agrawal, (3) Vinay Kumar Pandey, (4) Satish Chandra Mishra, (5) Subodh Kumar Jha, (6) Taranand Jha and (7) Md. Hafijur Rehman and does not include the name of the petitioner. Thus the moment name of the petitioner does not figure in the list of the teachers who were working on the date of conversion of the college, i.e. on 5 or after 16.8.1986, that should have been end of the matter because if the petitioner was no where in existence at the time of take over of the College, there will be no question of considering his appointment for its being taken over in the College in terms of section 4 (14) of the Act. 8. In fact, Justice Agrawal Commission has gone into methodology with regard to sanctioned strength and the recommended posts and it has found that in the department of Commerce there were only two sanctioned posts and four recommended posts up to 3.4.1998 the cut off date fixed by the State Government for consideration of absorption of the working teachers of the affiliated colleges. As is clear the petitioner was no where on the scene as on 30.4.1986. Thus if he was not working either against the two sanctioned posts or four recommended posts, his appointment in fact was itself void in terms of section 35 of the Bihar state Universities Act which reads as follows:- “No post for appointment shall be created without the prior sanction of the State Government- Notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such College- (a)as is established, maintained or governed by the State Government; or (b)as is established by religious or linguistic minority; (i)After the commencement of this Act no teaching or non-teaching post involving financial liabilities shall be created without the prior approval of the State Government; (ii)shall either increase the pay or allowance attached to pay post, or sanction any new allowance; Provided that the State Government may, by an order, revise the pay scale attached to such post of sanction any new allowance. (iii)shall sanction any special pay or allowance or other remuneration of any kind 6 including ex-gratia payment or any other benefit having financial implication to any person holding a teaching or non-teaching post; (iv)shall incur expenditure of any kind on any development scheme without the prior approval of the State Government. (2)Notwithstanding anything contained in this Act, no College other than one mentioned in clauses (a) and (b) of Sub-section (1), shall, after the commencement of this Act, appoint any person on any post without the prior approval of the state Government. Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification. (3)Any appointment or promotion made contrary to the provisions of the Act, or Statues, Rules or Regulations made thereunder or made in irregular or unauthorized manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment of promotion shall be realized from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.” 9. The moment this Court would find that the case of the petitioner cannot be covered in terms of the provisions of section 35 of the Act, it will have necessarily to revert the appointment in the procedure fixed for such appointment even in the affiliated college. It is not in doubt that in the affiliated College appointment was made strictly in terms of section 57 A of the Act which reads as follows:- “57 A. (1)Appointment teacher of affiliated Colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teacher of such colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the statutes: Provided that the Governing Bodies of 7 affiliated minority colleges based on religion and language shall appoint, dismiss, remove or termination the services of teachers or take disciplinary action against them with the approval of the College Service Commission: Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed. Provided that the Government Bodies of affiliated minority college‟s based on religion and language shall appoint, dismiss remove or terminate the services of teacher‟s or take disciplinary action against them with the approval of the Selection Committee of the University. (2)Recommendation for the appointment of teachers of Colleges shall be made in accordance with the following provisions:- (a)College Service Commission shall give its consent/recommendation for the appointment, dismissal or termination etc. of teacher of affiliated Colleges till the date of their being made constituent colleges. Its consent/recommendation shall be deemed valid only till that date. (b)If an affiliated college becomes a constituent college of a University by the time the recommendation of the College Service Commission is received, the Syndicate shall take action in accordance with sub-section (4) of section 57 of the said Act, as if the recommendation has been made by the Commission. (c)For the purpose of absorbing the services of the teacher or the affiliated college, who were appointed by the governing body of the College against the sanctioned posts before the establishment of the College Service Commission and whose services have been approved by the University as also the services of such teachers who were appointed by the governing body on the recommendations of the University Service Commission (Dissolved College Service Commission) as the case may be, approval of the Bihar State University (Constituent Colleges) Service Commission shall be necessary, and such teachers shall be absorbed in the University service from the date of making the College constituent and their seniority shall be determined according to the rules prescribed in the Statutes.” 10. Admittedly, the petitioner was never appointed on 8 the recommendation of the College Service Commission nor the Commission had ever given concurrence to his temporary appointment. Thus, even if everything is accepted in favour of the petitioner his appointment in the College he cannot be continued beyond six months. In the present case, however, period of six months is much later than the conversion of the College and therefore such appointment of the petitioner, in fact, could have clothed no right to continue in the College. 11. Reliance placed by Mr. Jha, leaned counsel for the petitioner, on the judgment of the Apex Court in the case of Mahasangh (Supra) also seems to be wholly misconceived if not altogether misplaced. The power under section 4 (14) of the Act vested full authority in the University to take a final decision with regard to absorption of a teacher in a taken over College which presupposes that such absorption can be made only in terms of conditions imposed by the State Government at the time of taking over of the College. It was a condition of the take over of the College prescribed by the State Government in its order dated 16.8.1986 that only such teachers will be recognized who had either been appointed with the recommendation and concurrence of the College Service Commission or were working against the sanctioned post or recommended post up to 30.4.1986. Therefore, appointment letter of the petitioner either of the date 7.7.1986 or 7.9.1986 being subsequent of the cut off date could not have even otherwise conferred him with any right much less for consideration by way of absorption under section 4 (14) of the 9 Act. 12. It is this aspect of the matter which has already been considered by Justice Agrawal Commission and has been approved by the Apex Court in Mahasangha case (supra) in concluding paragraph 73. which for the sake of clarity is also quoted hereinbelow:- “(1)The judgment of the High Court to the extent of the interpretation placed by it on the provisions of Section 4 (1) (14) and section 35 with the directions issued in paragraph 24 to 26 therein, is hereby confirmed for the reasons recorded by us above. (2)The report of the Commission of enquiry of Hon. 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 no. (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the University concerned. The Universities shall take a decision under Section 4 (1) (14) of the Act in the matter of absorption of appointees named in list No. (ii) of the Report of the Commission, being appointees against posts of 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 No. (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. The appointees mentioned in list No. (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 sent for approval of the State Government, have no right of being considered for absorption- whatever may be the fortuitous circumstances or otherwise in the matter of not sending recommendations for sanction in their cases. The negative report of the Enquiry Commission with regard to list no. (iii) is accepted and the universities 10 are directed to exclude all such appointees named in list no. (iii) from consideration for absorption. (6)A large number of objection 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 objections 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 the 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.” 13. Thus it would be clear that the Apex Court while approving the list of teachers for each of the Colleges as recommended by the Agrawal Commission had clearly approved only such recommendation which was found to be fit for absorption in terms of recommendation of the Agrawal Commission. In the College in question the Agrawal Commission on the basis of its detail screening had made its list namely, List- IIIA for each of the department and in the Commerce Department while it had recommended the name of Umeshwar Prasad Singh and Shiv Kumar Agrawal against the sanctioned post, the names of Vinay Kumar Pandey, Satish Chandra Mishra, Subodh Kumar Jha, Taranand Jha and Md. Hafijur Rehman were recommended on the recommended posts. The consideration by the University, therefore, in terms of section 4 (14) of the Act has to be now confined only to these seven persons. Rest of the cases which were being considered in the light of the persons shown to be working as lecturer in the college on the date of conversion was considered 11 by Justice Agrawal Commission and not found fit for recommendation for absorption in the report of the Agrawal Commission was accepted by the Apex Court in toto. Thus anyone not recommended by Agrawal Commission either against sanctioned or recommended post would not be entitled for absorption of his service and the submission of learned counsel that Supreme Court in Mahasangha case (supra) had given free hand to the University to even absorb any teacher not found fit and recommended by Justice Agrawal Commission is wholly unacceptable to this Court. 14. That being so, claim of the petitioner either of being appointed or absorbed or his challenge to the order of termination now has lost all its meaning especially when the Apex Court had approved the recommendation of Justice Agrawal Commission in respect of teaching and non teaching employees to all other 36 taken over colleges. 15. The plea of violation of natural justice raised by the petitioner has therefore to be also understood in the same manner. If appointment of the petitioner was void abinitio being in teeth of Section 57 A of the Act and void also in terms of section 35 of the Act, the petitioner had no right to continue in service of college for which he ought to have been a issued show cause notice. In fact the appointment of the petitioner was not in accordance with law and therefore he has no right to continue in the college. 16. The last part of grievance of the petitioner as with 12 regard to non compliance of earlier order of this Court with regard to payment of salary, in fact, cannot be made subject matter of this writ application and this Court would not like to say anything about order of the Division Bench because if the decision of Apex Court accepting the recommendation of the Agrawal Commission report was made available to the Division Bench probably it could not have issued any direction for payment of salary, but then as it is inter party order and if the same has not been complied, it would always be open for the petitioner to take recourse for its implementation of such order in accordance with law. 17. Subject to the aforementioned observations this writ application being devoid of any merit, is accordingly dismissed. ( Mihir Kumar Jha, J.) Patna High Court Dated the 15th July 2010 N.A.F.R./Abhay Kumar