IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5712 of 2006 Dr.Abdul Wasim Khan, son of Abdul Rashid Khan, resident of village Curdahan khurd, P.O. and P.S. Manjhi District Saran, posted Lecturer in Department of History of Z.A. Islamia College, Siwan … Petitioner Versus 1. The State Of Bihar through the Secretary, Human Resources Department of High Education, Govt. of Bihar, Patna 2. The Secretary, Human Resources Department, Higher Education, Govt. of Bihar, Patna 3. The Director, Human Resources Department, (Higher Education), Govt. of Bihar, Patna 4. Jai Prakash University, Chhapra through the Registrar, Jai Prakash University, Chhapra 5. Vice Chancellor, Jai Prakash University, Chhapra 6. The Governing Body, Z.A. Islamia College, Siwan 7. Bihar College Service Commission, Patna through the Chairman 8. Dr. Shaukat Ali Khan, son of Md. Hanif Khan, resident of village Patehpur, P.O. Hathua, District Gopalganj, at present Lecturer in Department of History, Z.A. Islamia College, Siwan … Respondents ---------------- For the Petitioner: Mr. Rajendra Pd. Singh, Sr.Adv. & Mr. Anisur Rahman, Adv. For Res. N0. 1 to 3: Mr. S. Raza Ahmad, AAG9, Mr. Vishmambhar Prasad, Adv. For Res.No. 4 & 5: Mr. Ajay, Adv. For Res.No. 6 : Mr. Abhinav Shrivastava, Adv. For Res.No.8 : Mr. Chakrapani, Adv. ---------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (09.09.2011) Mihir Kumar Jha, J. Heard counsel for the parties. 2. The prayer of the petitioner in this writ application is to quash the order dated 10.3.2006 issued by the Director, Human Resources Department, whereby and whereunder respondent no.8 Dr. Shaukat Ali Khan has been sought to be adjusted against the 5th post in the Department of History in Z.A.Islamia College, Siwan, a minority institution functioning under J.P.University. A consequential relief also has been sought by the petitioner for payment of his salary. By an amendment petition the petitioner has also assailed 2 the order of the Bihar College Service Commission dated 6.5.1995 as with regard to concurrence of respondent no.8 on the 6th post in the Department of History of the College. 3. The relevant facts, which would be necessary for adjudication of this case, lie in a very narrow compass. The College in question having been established in the year 1971 and also granted the recognition as a minority institution by the Govt. of Bihar became entitled for payment of deficit grant by way of payment of salary of the teaching employees against the sanctioned post as per staffing pattern. The Government had accordingly undertaken the liability of payment of salary of 65 post of teachers and in the Department of History there were five post of lecturers against which payment of salary could have been made. Such payment however, could not have been made to any such teachers whose services were not having the concurrence of Bihar College Service Commission in terms of Section 57A of the Bihar State Universities Act and accordingly, the governing body of the College in December, 1990 and March, 1991 had recommended the name of 53 Lecturers for being given approval/ concurrence by the Commission, wherein respondent no.8 was shown on the 5th post of Lecturer in the Department of History and the petitioner against 7th post of Lecturer in the same department. The list of teachers sent for seeking concurrence of the Bihar College Service Commission was considered and the Commission had fixed the date of interview of 19.9.2004 and 20.9.2004 whereafter it had sent its concurrence by an order dated 31.3.1995 in which it had given concurrence to the petitioner against the 6th post of Lecturer in History but had omitted the name of respondent no.8 altogether. Such omission was also not an inadvertent error inasmuch as not only the name only of respondent no.8 rather nine of such lecturers were omitted by the Commission which having interviewed 53 lecturers of the College had sent its concurrence 3 only in respect of 43 of them under the orders of the Commission dated 31.3.1995. After the commission had given concurrence to the petitioner against the 6th post, whatever rights that could have flown in the matter of payment of salary on the basis of sanctioned post was however sought to be taken away by a subsequent letter of the Commission dated 6.5.1995, one of the impugned orders, by which now respondent no.8 was given concurrence by the Commission on the post of sixth post of lecturer in History and the petitioner's concurrence already communicated by the Commission against sixth post by the order dated 31.3.1995 was pushed down to seventh post in the department of History in the College by a separate order dated 8.5.1995 allegedly on the basis of date of their initial appointment. 4. Such concurrence given on the 6th post to respondent no.8 and denial thereof to the petitioner however did not lead to any fruitful result in the matter of payment of their salary. The respondent no.8 had thereafter filed the writ petition, C.W.J.C.No. 6263/1999, along with others claiming payment of salary on the basis of his being given concurrence by the Commission on the 6th post of lecturers in the Department of History which was dismissed by a judgment dated 29.9.2005 of this Court the relevant portion whereof reads as follows: “In view of the earlier direction of this Court, the Vigilance report pertaining to the aforesaid college has also been brought on record. The said report goes to show that the matter has been gone into, rather it is astonishing that in some subject the appointment has been made after ten years and then approval of the State Government was asked for from the back date, rather in many departments number of students are very low, still ratio of the teachers much more than the ratio between a teacher and students it also shows that only fifth post in the department was sanctioned by the State Government but appointment shows on the 6th and 7th posts, rather when the Vigilance Team visited the 4 college in question, the original records have been misplaced, rather made to vanish. These aspects go to create doubt regarding the appointment of the petitioners prior to the cut off date, rather even they have been duly appointed. Taking all these aspects into consideration, including the contentions on behalf of the petitioners, the counter affidavit on behalf of the State and the respondent University, the judgment of the Supreme Court, which has been relied upon in the case of T.M.A. Pai Foundation (supra) and the Vigilance report, this Court is not in a position to pass any positive order for payment of salary, in favour of the writ petitioners. It is for the respondent- State in the department of Higher Education to take appropriate decision in view of the vigilance report and proceed in accordance with law. As no relief can be given to the writ petitioners, all the four writ petitions, being C.W.J.C.Nos. 6263, 12772, 8738 and 8131 of 1999, are dismissed being devoid of merit, but no order as to costs.” 5. The natural corollary to the aforementioned judgment of this Court, which despite being challenged in L.P.A. by Respondent no. 8 was not interfered with, would be that the State Government could have taken any decision for payment of salary only in view of the report submitted by the Vigilance Department inasmuch as a vigilance enquiry in the matter of appointment and payment of salary to the teachers of the College was made subject matter of enquiry by vigilance department under the orders of the Chief Minister stopping payment of salary since 2001. The impugned order dated 10.3.2006 passed by the State Government allowing payment of salary in favour of respondent no.8 and others however, does not refer to consideration of the report of the Vigilance Department, rather is based on a consideration of an alleged report submitted by the Vice Chancellor of the J.P.University dated 3.6.2005. 5 6. Mr. Rajendra Prasad Singh, learned Senior Counsel for the petitioner while assailing the impugned order had taken a categorical stand that the Respondent no. 8 infact was never appointed in the college in 1988 and was working in a different college namely Baba Bhooth Nath College, Bathua Bazar, Balepur in the district of Gopalganj since 11.4.1988 and in this regard had specifically taken a stand that the Vice Chancellor of J.P. University had never recommended the name of Respondent no. 8 in the letter dated 3.6.2005. 7. As the impugned order passed by the State Government on 10.3.2006 was said to be based on the alleged letter of Vice Chancellor dated 13.10.2005, when such a stand was also taken by Respondent no. 1 and 2 in their counter affidavit in paragraph no. 5 reading as follows:- "That it is stated that the private respondent no. 8 was adjusted on the said post as mentioned in letter no. 476/10.03.06(Annexure 1) and also on the basis of report submitted by the Vice Chancellor, J.P. University, Chapra vide his report V.C.-112 dated 13.10.05. By the said report only 65 post, as per the subject were reported to the department under which the name of the private respondent no. 8 would had been found by the then Director, Higher Education. That at para 4 of the University counter affidavit it has been stated that the statement made in para 4 to 10 and 12 to 23 of the writ petition are concerned with the Governing Body of the College. However, the University has also admitted at para 3 of its counter affidavit that the respondent no. 8 of the writ application has been adjusted against Vth post of the History Department in Z.A. Islamia College, Siwan. That so far as matter of payment to the University/College employee is concerned, it is stated that the same is concerned with the University-respondent. It is further submitted that the funds as deficit grant is releasing annually by the State Govt. for payment to the employees of the concerned College through the university." 6 this Court, in view of the conflicting stand taken by the State Government and University and a frontal attack by the petitioner, on 11.3.2011 had passed an order which reads as follows:- "As prayed for on behalf of the State, let supplementary affidavit be filed appending therewith a copy of the document mentioned in paragraph-5 of the counter affidavit filed on behalf of the Respondent no. 1 and 2." 8. Though the case thereafter was adjourned on 28.3.2011, 20.4.2011, 28.4.2011, 21.6.2011, 6.7.2011, 21.7.2011, 5.8.2011 and 29.8.2011 to enable the learned counsel for the State to file the supplementary counter affidavit enclosing the alleged report of V.C. J.P. University dated 13.10.2005 as referred in paragraph no. 5 of the counter affidavit, the same was never filed on one or other pretext including non-availability of the main file said to be in custody of Vigilance department. This Court had in fact given repeated opportunities to the respondent State and its officials to produce any material to show that in a report of the Vice Chancellor dated 13.10.2005 the name of respondent no.8 was included or shown to have been working against the 5th sanctioned post. No such report of the Vice Chancellor having been produced by learned counsel for the State, this Court had directed for production of the original file from which the impugned order dated 10.3.2006 had been issued and the file produced today, file no. 21 of 1-09-/03, has revealed the manner in which the respondent State and its officials had made a mess of entire thing. 9. As noted above, the writ petition of the Respondent no. 8 was dismissed on 29.9.2005 and even when the judgment of this Court had expressed doubt about the very appointment of the Respondent no. 8, one Shyam Narayan Kunwar, the then Director, Higher Education, yet thought it appropriate to act upon an undated representation of the Respondent no. 8 and 7 others who in their joint undated representation had stated that if the Government would release payment of their salary, the L.P.A. filed by him and others in this court would be withdrawn. It is this undated representation alone on which the Government seems to have acted upon and despite an earlier order of the Chief Secretary in file on 13.8.2005 that no payment of salary to any teacher should be made till the vigilance enquiry is completed, the whole issue was given a „U‟ turn on the intervention of the Governor of Bihar, who had desired that the payment of salary stopped in the College from 2001 to the teachers should be resumed by obtaining undertaking from the teachers and by way of advance. 10. On the basis of such a decision payment of salary was resumed to others about whom there was no dispute but the payment of salary was not made to respondent no.8 and in fact after his writ petition claiming the relief of payment of salary was dismissed, the file was revived by Mr. Shyam Narain Kunwar, the Director, Higher Education, who having given the history of the College had submitted a proposal that the writ petitioners (Respondent no. 8 and other) should be absorbed against the 5th post out of 65 post reported by the Vice Chancellor of the University. He had also recommended to the Government that such a decision can be taken because the writ petitioner and others had given undertaking to withdraw their appeal against the judgment in which their claim for payment of salary was rejected. It is this note of Mr. Shyam Narain Kunwar the then Director, Higher Education which was placed before the Commissioner cum Secretary on the next day and his approval having been obtained on 18.2.2006 the matter had also received approval of the Cabinet Minister on 28.2.2006. The impugned order thereafter was issued on 10.3.2006 and thus, it becomes clear that such an order was passed neither on the basis of vigilance report nor on any report of the Vice Chancellor and the 8 impugned order, therefore, on the face of record is based on non est and non- existent ground. 11. There can be no two views that right to administer and manage the minority institution lies in the hands of founder of the college who receive such protection under Article 30(1) of the Constitution of India. Their such protection, however, is not unconditional nor they have an immunity from being probed if they are also claiming payment of salary from the funds of the State Government. The State has to adopt a uniform policy and if therefore it has reasons to believe that there has been gross mal-practice in the appointment of the teachers of the College and payment of salary is being made to such teachers who are neither qualified nor are within the sanctioned staffing pattern it can stop payment of salary and also take back the status of the minority institution. This in fact is settled law as was also held by the Constitution Bench in the case of T.M.A.Pai Foundation and others vs. State of Karnataka & ors., repoted in 2003(1) PLJR 1 (S.C.), wherein apart from the other things in the matter of grant of aid it was held as follows: “141. The grant of aid is not a Constitutional imperative. Article 327 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what then is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states, viz, that a minority institution shall not be discriminated against when aid to educational institutions is granted. In other words the State cannot when it chooses to grant aid to educational institutions, deny aid to a religious or liguistice minority institution only on the ground that the management of that institution is with the minority. We would, however, like to 9 clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon such facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial, would be completely invalid. 142. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it, subject to the fulfillment of the requisite criteria, and the State gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the State cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature of character of the recipient educational institution.” 12. In the light of the aforementioned settled position in law as also the factual scenario where the petitioner though originally approved by the College Service Commission against the 6th post was sought to be shifted on 7th post and respondent no.8 nowhere in scene earlier was suddenly sought to be brought on 6th post could have been still gone into by this Court if the College Service Commission was functional by seeking an explanation as how the Commission had given concurrence to the Respondent no. 8 against the 6th post even when the governing body had recommended the name of respondent no.8 against the 5th post and how the petitioner who was recommended by the governing body against the 7th post was given concurrence on 6th post on 31.3.1995. The Commission, however, is no longer alive and stands abolished and its power has been vested either in the State Government or in the 10 University. 13. The effort of Mr. Chakrapani, learned counsel appearing on behalf of respondent no.8, by placing reliance on the resolution of the governing body showing respondent no.8 to have been shifted against 5th post in the Department of History or the plea that the petitioner was sleeping over his rights for all this period can have no effect on the main issue which relates to payment of salary to respondent no.8 from the funds of the State Government. As noted above, respondent no.8 being a teacher in the minority college where grant in aid is being given as per staffing pattern, can be entitled to receive payment of salary if he comes within the sanctioned post under the staffing pattern adopted in the college in question by the Government. Section 59 gives power to the University to at least accord approval to the appointment made by the governing body of the minority institution which of course will have no other power of supervision and control but only according a formal approval in the light of concurrence given by the Commission. That, however, cannot be altogether avoided and in fact would be still meaningful where Government would make payment of salary only through University as is also stated in the counter affidavit of Respondent State. Such a system of processing the payment through University to which the minority college is affiliated would make a base available to the Government as with regard to accepting the factum of a person working in the minority College to be properly qualified and holding the post in terms of requirement laid down in the statute for the post of Lecturer. There is no difficulty in coming to this conclusion that neither the appointment nor the concurrence relating to the petitioner or respondent no.8 was ever placed before the University and in fact the University had also not recommended either the name of the petitioner or respondent no.8 for payment 11 of salary from the funds of the State Government. As noted above, such a decision was taken in a great hurry by the Director, Higher Education, who was probably more worried of pendency of the L.P.A. filed by respondent no.8 and/or its disposal. The Director, Higher Education, had no reason again to coin his own principle of bringing the Respondent no. 8 to 5th post about which there was no recommendation by the University or even a finding in the report of the Vigilance Department or even concurrence by the Commission. 14. Considering all these aspects this Court would find that the impugned order so far it relates to respondent no.8 is bad and is accordingly quashed. This Court having found that the recommendation in favour of the petitioner against the 6th post by the Bihar College Service Commission having been unilaterally altered by the impugned order dated 6.5.1995 (Annexure C/8) assailed by the petitioner by seeking amendment of the prayer in the main writ application would also hold it to be bad. The said order having impact of taking away a vested right of the petitioner in view of his concurrence against the 6th post could not have been passed without giving him a notice and/or opportunity of personal hearing. In fact there is nothing on record to justify such a decision taken by the Commission by pushing respondent no.8 who was nowhere in the scene in the final recommendation made by the Commission on 31.3.1995. Therefore, if Respondent no. 8 had surfaced either of his own or under the recommendation of the governing body which was at the expense of the petitioner, he was supposed to be given an opportunity of hearing by the Commission before changing its recommendation. As the turn of event would be, it is this order dated 6.5.1995 which has become impediment in the way of the petitioner in claiming payment of salary because now it is an admitted fact that one of the sanctioned post have become vacant and the payment of salary has been made upto 5th post on the basis of recommendation made in favour of 12 respondent no.8 as against the 6th post. This Court, therefore, would find that the order of the Commission dated 6.5.1995 (Annexure-C/8) is equally bad and it is accordingly quashed. As a natural corollary the order dated 8.5.1995 (Annexure-9) by which the petitioner was pushed to the 7th post on account of the order passed in favour of respondent no.8 on 6.5.1995 (Annexure-6/8) has to be also held to be bad and that order, contained in Annexure 9, is hereby quashed. 15. The decks having been made clear, the right of the petitioner vis-à-vis respondent no.8 as with regard to their concurrence/payment of salary requires to be reconsidered. A suggestion, therefore, was given by all the counsels appearing in this case that a three men committee should be constituted by this Court which would go into the legality or otherwise in the appointment of the petitioner and respondent no.8 and would come to a conclusion as to who among two was appointed earlier in accordance with law and therefore, would be entitled for payment of salary against the 5th or 6th post of Lecturer in the Department of History in the College. Based on such consent of all the parties this Court would constitute a Committee of three officials, namely, the Director, Higher Education, the Registrar of J.P.University and the Secretary of the governing body of Z.A.Islamia College. The said Committee will enquire into all the relevant records and will also afford opportunity of hearing to the petitioner and respondent no.8, whereafter it will submit its report to the Vice Chancellor J.P. University who