IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1823 of 2009 Binodanand Jha . Versus The State Of Bihar & Ors . ----------- 3 30.6.2011 Heard counsel for the petitioner and the counsel appearing for the State. Jagannath Mishra Institute of Technology, Darbhanga was established in the year 1980 for imparting four years B.Sc Engineering Course in various discipline i.e. Civil, Mechanical and Artichector etc. The College started admitting the students for the sessions 1980 in various discipline. Besides teaching in the said discipline it had also got infra structure for teaching training as required in Government Engineering College. The College had well qualified teachers and non-teaching staffs. The college was being administered by a regular constituted Managing Committee registered under the Society Registration Act. The petitioner was appointed by the Managing Committee of the college in the year 1982 and he started functioning on that post, since the date of his appointment in Jagannath mishra Institute of Technology, Darbhanga. The Bihar State Engineering and Pharmaceuticals Institute Act, 1982 was enacted by the State of Bihar, in order to check Mushroom 2 growth of Engineering Colleges and other types of technical Institutes in the Private sector. The state of Bihar constituted a committee on 7.3.1984 to consider the cases of the existing Engineering Colleges for the purpose of their take over. In the light of the recommendations of the said Committee dated 9.12.1986, three private Engineering College, namely, Magadh Engineering College, Gaya, Indian College of Engineering, Motihari and Jaganath Mishra Institute of Technology, Darbhanga were taken over by the State under the Bihar Ordinance No. 37 of 1986, which was later on replaced by the Bihar Act No. 05 of 1991. Section 3 of the Ordinance provided for the consequences of take over, which lays down, that with effect from the date of enforcement of the ordinance, all assets and liabilities of the said engineering college shall stand transferred and vested in the State of Bihar with all encumbrances. Section 5 of the Act determined terms and conditions of service of teachers and other categories of employees of the private Engineering Colleges (1) All the staff employed in the private Engineering College shall cease to be the employees of the concerned private Engineering College from the date of vesting in the State Government under Section 3. Provided that the employees shall continue to 3 serve the concerned private Engineering College on ad hoc basis till a decision under Sub-section 3 is taken by the State Government. (2) The State Government constituted a Screening Committee of experts and knowledgeable person who had to examine the strength of the staff and the staffing pattern, and after examining Bio-data of each member of the teaching and other categories of employees of each of the private Engineering Colleges. This Committee also had to ascertain whether staffing pattern appointment, promotion, or confirmation, sanctioned posts made by the Managing Committee of each of the private Engineering college are proper in accordance with Universities Act. Counsel for the petitioner submits that from perusal of Appendix-xx of the report, it is apparent that the committee had adopted model of staffing pattern of B.I.T. Sindri in the matter of non-teaching employees class III and IV posts of the College as guidelines and on that basis the Screening Committee calculated the total number of teaching and non-teaching posts in all three colleges, which came to 888 i.e. 296 posts for each College. Petitioner was found fit for absorption in Government service of the College by Screening Committee and the petitioner was under bonafide belief 4 that his service has been absorbed as regular employee of the college, but in the meantime a notification bearing no. 321 dated 31.1.1991 was issued terminating the service of the petitioner along with others, on the ground that they were surplus, over and above, the staffing pattern of All India Council of Technical Education and approved by the State Government. Several writ petitions were filed against the termination order. Some of the writ petitions were dismissed by the single Bench and some by the Division Bench and finally CWJC No. 11316 of 1991 and analogous cases were decided in which a direction was issued to the respondent authorities to take a decision under Sub-Section (iii) of Section 5 of the Act, after giving an opportunity of hearing to the petitioners within a period of six months from the date of the order. In pursuant to order passed in Civil Appeal No. 2542 of 2002 and analogous cases petitioners were issued notice by Joint Director (Administration) Science and Technology and finally it was decided that petitioners are not entitled for his absorption. Though petitioners and others had been found fit for absorption by the Statutory Screening committee but they were subsequently found unfit for absorption on the ground 5 of being surplus. Petitioners were legally entitled for absorption in the services of the State Government under the Science and Technology Department on any available sanctioned vacant post. CWJC No. 10788 of 2008 which was later on decided considering all legal aspects of the matter and it has been held as follows:- “ Petitioners got this right not because the Statutory Screening Committee had recommended for their absorption; not because their juniors and persons found unfit stood absorbed; not because staffing pattern was laid down by the respondents subsequent to submission of report by the Committee; not because the recommendations of the committee in their favour ought to have been considered only in the light of staffing pattern recommended by it; nor because the respondents could not superimpose their decision in their respect over the recommendations of the Committee; not because the findings and recommendations of the Committee ought to have been treated as mandatory and binding on the Government; not because any of the judgments of this Court or the Apex Court helps them expressly or impliedly; etc. They get the right to be considered and absorbed because the highest decision making body of the State, the Cabinet of Ministers in the Government, had taken a policy 6 decision that all qualified must be regularized; because the word “must” used by the Cabinet as appearing in the Resolution no. 96 dated 15.1.1990 did not leave any scope for their termination on the ground of being surplus; because this decision of the Cabinet was clearly based on principle of equity, reasonableness and fair play in action; because they had already withstood the test of screening held by the first Screening Committee as per the guidelines laid for it in Resolution No. 1063 dated 24.4.1997; because they were and are citizens of a welfare State; because the Government should act as a model employer and should act in furtherance of object to provide and/or safeguard their right to work and earn their livelihood as enshrined in Article 41 of the Constitution of India.” I find that the case of the present petitioner is identical to the case of Shashi Nath Jha and others i.e. CWJC No. 1303 of 2004. This writ application is also being decided in terms of order/judgment passed in CWJC No. 10788 of 2008 as well as CWJC No. 1303 of 2004. The petitioner is required to file a representation with respect to his claim along with a copy of this order. The Principal Secretary will examine the case of the petitioner for absorption in the light of the judgment of this Court aforesaid within a period of four weeks from 7 today. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)