IN THE HIGH COURT OF JUDICATURE AT PATNA. - - - - - Against the interim order dated 3rd August 2010 passed in C.W.J.C.No. 10862 of 2010. LPA No.707 of 2011. 1. The Tilka Manjhi Bhagalpur University , Bhagalpur Through its Registrar. 2. The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur. 3. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur … Appellants. Versus 1.Dr.Lokesh Chandra Prasad son of Sri Ram Chandra Prasad, University Department of Chemistry, Tilka Manjhi Bhagalpur University, Bhagalpur. 2.Dr. Binshidhar Pandey son of Late Jagdish Pandey, University Department of Chemistry, Tilka Manjhi Bhagalpur University, Bhagalpur. 3.Dr. Era Ghoshal d/o Late Dinabandhu Ghoshal, University Department of Bengali, Tilka Manjhi Bhagalpur University, Bhagalpur 4.Dr. Birendra Kumar Sharma, son of Late H.N.Rai Head of the Department (Geography), T.N.B. College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 5.Dr. Jyotindra Choudhary son of Late Mukhdeo Choudhary, Head of the Department (Chemistry) T.N.B. College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 6.Dr. Lakshmishwar Jha son of Mr. Dev Narayan Jha, Head of the Department (Sanskrit), T.N.B. College, Tilka Manjhi Bhagalpur University, Bhagalpur. 7.Dr.Ashok Kumar Sah son of Late Sita Ram Sah, University department of Commerce & Business Administration, Tilka Manjhi Bhagalpur University, Bhagalpur. 8.Dr.Bijay Prasad Singh son of Late K.P. Singh, University department of Commerce & Business Administration, Tilka Manjhi Bhagalpur University, Bhagalpur. 9.Dr.Mrs.Prem Lata Singh d/o Sri P.N. Singh, under Department of Botany, S.M. College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 10.Dr. Biraj Kumar Sarkhel son of U.P.Sarkhel, University Department of Chemistry, Tilka Manjhi Bhagalpur University, Bhagalpur. 11.Dr. Md.Faiz Ahmad son of Late Ali Ahmad Ansari, University department of Chemistry, Tilka Manjhi Bhagalpur University, Bhagalpur. 12.Dr.Ajit Kumar Sinha son of Late Baleshwar Prasad, University department of Economics, Tilka Manjhi Bhagalpur University, Bhagalpur. 13.Dr.Durgesh Nandan Jha son of Late Dr.A.P.Jha, Head, Department of Physics, T.N.B. College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 14.Dr.Jaishankar Jha son of Late Dhananjay Jha, Head, University Department of Mathematics, Tilka Manjhi Bhagalpur University, Bhagalpur. 2 15.Dr.Lal Bahadur Singh son of Late R.N.Singh, University Department of Psychology, Tilka Manjhi Bhagalpur University, Bhagalpur. 16.Dr.Arviond Kumar Tiwari, son of Late G.N. Tiwari, University department of Economics, Tilka Manjhi Bhagalpur University, Bhagalpur. 17.Dr. Rama Shankar Tiwari, son of Late Sheo Kumar Tiwari, Head, University Department of History, Tilka Manjhi Bhagalpur University, Bhagalpur. 18.Dr.Liladhar Saha son of Late Richh Pal Sah, Retd. Head, Department of Chemistry, Marwari College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 19.Dr.Mrs. Neelambari Mishra d/o Late D.P.Mishra, Head, Department of Philosophy, B.R.M.College, Munger, Tilka Manjhi Bhagalpur University, Bhagalpur. 20.Dr.Lala Nigam Prasad son of Late Swami Das, under Department of Commerce, R.D.& D.J. College, Munger, Tilka Manjhi Bhagalpur University, Bhagalpur. 21.Dr.Mansoor Ahmad Neyazi son of Late H.A. Neyazi, Head of the Department, Chemistry, B.R.M. College, Munger, Tilka Manjhi Bhagalpur University, Bhagalpur. 22.Dr.Arun Kumar Singh son of Late Kanchan Singh, University Department of Botany, Tilka Manjhi Bhagalpur University, Bhagalpur 23.Dr.Awadh Kishore Roy, son of Late Swarup Roy, University Department of Botany, Tilka Manjhi Bhagalpur University, Bhagalpur. 24. Dr.Leela Chand Saha son of Late Dular Chand Sah, University department of Botany, Tilka Manjhi Bhagalpur University, Bhagalpur. 25.Dr. Birendra Kumar Singh son of Late N.P. Singh, University Department of Botany, Tilka Manjhi Bhagalpur University, Bhagalpur. 26.Dr.Sunil Kumar Choudhary son of Sahdeo Choudhary, University Department of Botany, Tilka Manjhi Bhagalpur University, Bhagalpur. 27.Dr. Vijoy Kumar son of Dr.H. Rai University Department of Political Science, Tilka Manjhi Bhagalpur University, Bhagalpur. 28.Dr.Krishna Nand Kumar son of Late Suresh Chandra Kumar, University Department of Physics, Tilka Manjhi Bhagalpur University, Bhagalpur. 29.Dr.Naresh Jha (Retd.) son of Late Brajvir Jha, Department of Economics, Tilka Manjhi Bhagalpur University, Bhagalpur. 30.Dr.Madhdulika Sinha d/o Sri Bikash Chandra Sinha, Head, Department of Psychology, T.N.B. College, Bhagalapur, Tilka Manjhi Bhagalpur University, Bhagalpur. 31.Dr.Amita Moitra d/o Late Dr.L.M.Moitra, University Department of Zoology, Tilka Manjhi Bhagalpur University, Bhagalpur. 32.Dr.Surendra Prasad son of Late Satyanarayan Poddar, Retd. Department of Commerce, Marwari College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 33.Dr. Mrs. Milli Ganguli, d/o Mr. P.K. Chatterji, Retd. Department of Mathematics, S.M College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 34.Dr.Smt. Poonam Ran d/o Dr. Shiv Chandra Pratap Narayan, Head, Department of Philosophy, Tilka Manjhi Bhagalpur University, Bhagalpur. 35.Dr.Binod Nand Thakur son of Late K.N. Thakur, University Department of Sociology, Tilka Manjhi Bhagalpur University, Bhagalpur. 3 36.Dr.Nipenda Prasad Verma son of Late Bhubaneshwar Prasad, University Department of Hindi, Tilka Manjhi Bhagalpur University, Bhagalpur. 37.Dr.Sham Deo Bhagat son of Late Banarasi Bhagat, Head, Department of Hindi, Tilka Manjhi Bhagalpur University, Bhagalpur. 38.Dr. Kishore Kumar Singh son of Late G.P. Singh, University Department of Zoology, Tilka Manjhi Bhagalpur University, Bhagalpur. 39.Dr.Rashmi Prakash d/o Late K.P. Sinha, University Department of Geography, Tilka Manjhi Bhagalpur University, Bhagalpur. 40.Dr.Yamuna Prasad Yadav son of Late Hari Prasad Yadav, Retd. Head, University Department of Mathematics, Tilka Manjhi Bhagalpur University, Bhagalpur. 41.Dr.(Smt.)Rita Kumari d/o Late C.D. Tiwari, Head, Department of Political Science, S.M. College, Bhagalpur, Tilka Manjhi Bhagalpur University, Bhagalpur. 42.Mr.Dhananjay Prasad Singh son of Late B.P. Singh, Head, Department of Mathematics, R.D. & D.J. College, Munger, Tilka Manjhi Bhagalpur University, Bhagalpur. 43.Dr.Nand Kumar Yadav „Indu‟, son of Late Gangadhar Yadav, University, Department of Chemistry, Tilka Manjhi Bhagalpur University, Bhagalpur. Presently Pro Vice Chancellor, B.R.A Bihar University, Muzaffarpur. 44.The State of Bihar, through the Principal Secretary, Department of Human Resources Development , Govt. of Bihar, Patna. 45. The Principal Secretary, Department of Human Resources Development, Govt. of Bihar, Patna. 46.The Secretary, Department of Human Resources Development, Govt. of Bihar, Patna. 47.The Chancellor, Universities of Bihar, Raj Bhawn, Patna. … Respondents. With LPA No.728 of 2011 1.The Tilka Manjhi Bhagalpur University , Bhagalpur Through its Registrar 2.The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 3.The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 4.The Finance Advisor, T.M. Bhagalpur University, Bhagalpur . 5.The Finance Officer, T.M. Bhagalpur University, Bhagalpur 6.The University Selection Committee, through its Secretary cum- Registrar, T.M. Bhagalpur University, Bhagalpur. … Appellants. Versus 4 1.Dr.Kanak Kumar Pandey son of Late Bindeshwar Pandey, Resident of Flat No. 204, Raj Lakshmi Apartment, C.C.Mkherjee Road, near All India Radio, Adampur, Town & District Bhagalpur. 2.Dr. Ram Niwas Pandey son of Late Muni Ram Pandey, Resident of Shi Bhagwan Colony, Police Line Road, Bhikhanpur P.S.Ishaqchak, Town & District Bhagalpur. 3. The State of Bihar, Through the Principal Secretary, Department of Human Resources Development, Govt. of Bihar, Patna. 4. The Secretary Department of Human Resources Development, Govt. of Bihar, Patna. 5. The Director, Human Resources Development Department, Govt. of Bihar, Patna. 6. The Hon‟ble Chancellor of the Universities of Bihar, Raj Bhawan, Patna. .. Respondents. With LPA No.893 of 2011. 1. The Tilka Manjhi Bhagalpur University , Bhagalpur Through its Registrar 2. The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 3. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur. … Appellants. Versus 1. Dr.Janardan Sharma S/O Late Rameshwar Sharma, Professor & Principal, Koshi College, Khagaria R/O Vill.- Ghuthiyani, P.O.- Madarganj, Via-Ekchari, P.S. & Distt.- Bhagalpur 2. Dr.Sharmila Bagchi D/0 Late Shailendra Nath Bagchi, Professor (H.O.D. University of Bengali) T.M. Bhagalpur University, P.S. Kotwali District Bhagalpur, Resident of Burhanath Road, Jogsar P.S.Kotwali District Bhagalpur. 3. Dr.Vibhuti Narayan Singh S/O Late Kalika Prasad Singh, Professor, P.G. Department Of Zoology, T.M. Bhagalpur University, Bhagalpur R/O 24, Ganga Apartment, Lal Bagh Sarai, P.S.- Kotwali, Distt.- Bhagalpur 4. Dr. Bahadur Mishra S/O Late Govind Mishra, Professor University Department Of Hindi, T.M. Bhagalpur University, Bhagalpur R/O Vikramshila Colony, Bhagalpur, P.S. & Distt.- Bhagalpur 5. Dr. Md. Faruque Ali S/O Late Md. Osman Ali, Professor, Department Of Zoology, T.N.B College, Bhagalpur R/O Ali Lane, Sarai, P..S- Kotwali, Distt.- Bhagalpur 6. The State Of Bihar Through The Principal Secretary, 5 Department Of Home Resources Development Govt. Of Bihar, Patna 7. The Principal Secretary, Department Of Human Resources Development Govt. Of Bihar, Patna 8. The Secretary, Department Of Human Resources Development Govt. Of Bihar, Patna 9. The Hon'ble Chancellor Of The Universities Of Bihar, Raj Bhawan, Patna … Respondents. -- - - - - - For the Appellants : Mr.A.K.Keshari, Mr. Anil Singh, Advocate. For the Pvt. Res. : Mr.P.K.Jha,Adv. For the State : Mr.Neeraj Kumar. A.C. to S.C. 22. For the State : Ms.Juhi Kumari, A.C. to A.A.G.XIII (in LPA No.707 of 2011) ----------- 3. 09.08.2011 Heard learned counsel for the appellants in all the three appeals and perused the order under appeal dated 3rd August 2010 which has been passed in a batch of writ petitions which are still pending before the writ court. The interim order has been made subject matter of these appeals because the learned writ court has held that till further orders, all the demand, orders and notifications of the University reversing the time clock and creating burden on the petitioners shall remain stayed. We have been taken through the background of the earlier litigation which has given rise to the present one. The earlier judgment of a learned single Judge in C.W.J.C.No. 9839 of 2001 dated 16th October 2001 was made in a batch of six writ petitions prefer red by individual teachers holding the post of Reader or Professor in different Colleges under Magadh University. Since the principle of law settled by the judgment dated 16th October 2001 did not suit the writ 6 petitioners because it was held that if their services before permanent absorption in the University is illegal, then the same shall not be counted for any benefit, the individual writ petitioners as well as an Association of University teachers preferred an appeal before the division Bench of this Court. That appeal was dismissed by a short order dated 14th July 2008 in LPA No. 1495 of 2001 and other analogous cases. However, a liberty was granted that any individual lecturer, if not given the benefit of previous service on the ground that such service was not lawful, will be at liberty to assail such decision in accordance with law. The matter was taken to the Hon‟ble Supreme Court by the Bhim Rao Ambedkar Bihar University Teachers‟ Association but the special leave to appeal (Civil) No. 24570 of 2008 was dismissed on 20th October 2008, without granting leave to appeal. While passing the interim order, the learned writ court has taken note of the observations of the Hon‟ble Supreme Court for not interring into the matter. The Supreme Court has highlighted that there is already a liberty given to the individual teachers if they are aggrieved by any decision of the University and that the judgment of the High Court only states that whatever is illegal cannot be counted. Thereafter the Apex Court has given a further observation in the following words: “This necessarily means whatever is regularized and held to be legal cannot be reopened”. It is the last observation which has weighed heavily with the writ court while passing the order under appeal and it 7 is the same observation upon which learned counsel for the University has laid emphasis to submit that mere regularization does not bar reopening unless it is also held that the service regularized is legal. The matter remains to be decided by the writ court and, hence, we are not persuaded to go into the further merits of the case but prima facie there appears an embargo upon the power of the authorities to reopen the legality of a service which has been treated /held to be legal and regularized. In that view of the matter, we are not inclined to interfere with the interim order, because our attention was drawn to the fact that the decision of the University to turn back the clock and rescrutinize service of all may, in many cases, affect even past employees who have already retired or are dead. We make it clear that nothing in this order shall be treated to be an observation and the case shall be decided by the writ court on its own merits. There appears some substance in the grievance raised by the learned counsel for the University that the interim order under appeal is only in the nature of a restraint order that any burden on the petitioners, if created shall remain stayed. He prays that such order should not be treated in the nature of mandamus putting burden on the University until the matter if finally decided. We are sure that the writ court shall keep in mind that the interim order only prevents creation of any loss or burden on the petitioners, but does not create any liability on the University till the matter is finally decided. It is clarified that the University shall not be permitted to withhold the payment due to the petitioners in ordinary course, in view of interim order in question. Any proposal for reduction or recovery from the petitioners shall await the 8 final judgment. Another grievance of the learned counsel for the University is that whereas action against the petitioners was initiated at the instance of the State but if stay order is to continue it should be the duty of the State to provide necessary funds so that the interim order passed by the writ court is not rendered nugatory. It goes without saying that the duty to meet the financial liability of the University as per practice shall remain open to the State. However, it is observed in the interest of justice that on receipt of this order the writ court should consider partial alteration in the interim order after hearing the parties whether the writ petitioners should be made liable to refund the benefits received by them during the pendency of the writ petitions, in case the writ petitions are ultimately dismissed. It is necessary, considering the financial implication of t he matter that the writ petitions be heard and disposed of at an early date. Hence, we request the writ court to take up the matter on priority basis for final disposal at an early date, preferably within three months. The appeals are disposed of accordingly but without any interference with the order under appeal by us. Jay/ (Shiva Kirti Singh,J) (Shivaji Pandey, J)