IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 9440 of 2009 Manju Chaudhary, wife of Late Ranjit Kumar Chaudhary, Resident of village – Jairampur, P.O. – Bihpur, P.S. – Bihpur, District – Bhagalpur, presently residing at Professors Colony, Indira Gandhi Stadium, P.S. – Khazanchi Hatt, District – Purnea …………… Petitioner Versus 1. Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura through the Registrar 2. The Vice-Chancellor, Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura 3. The Registrar, Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura 4. The Principal, K. B. Jha College, Katihar 5. Shri Gauri Kant Jha, son of Kamla Kant Jha, Resident of village and P.O. – Khabaspur, Farbisganj, District – Araria, presently working as Lecturer in the Department of Zoology, K. B. Jha College, Katihar. …………. Respondents ---------------------------------- For the Petitioner: Mr. S. B. K. Mangalam, Adv. For the University: Mr. B. K. Jha, Sr. Adv. Mr. Abhay Kumar, Adv. For Respondent No. 5: Mr. Jitendra Singh, Sr. Adv. Mr. Baidya Nath Thakur, Adv. Mr. Shankar Kumar Thakur, Adv. ************** 06. 19.10.2011 Heard learned counsels for the petitioner, the State, counsels, representing B. N. Mandal University as well as Respondent No. 5. Petitioner before this Court is the widow of Shri Ranjit Kumar Chaudhary, who was a Lecturer in K. B. Jha College, Katihar. Husband of the petitioner was appointed as Lecturer in Zoology on 05.07.1986 and worked till 18.11.1997. He became traceless since 18.11.1997 and after seven year, in terms of section 108 of the Evidence Act, he is deemed to be dead. 2 Relief prayed by the petitioner is two fold. First to direct the respondents for payment of differential amount of arrears of salary of the petitioner’s deceased husband for the period 05.07.1986 to 18.11.1997, treating him absorbed on the post of Lecturer in Zoology against the recommended post and also for a direction to the Respondents to consider petitioner’s case for compassionate appointment. Grievance of the petitioner is that as per the decision of the Supreme Court in 2005 (1) PLJR 464 (SC), name of petitioner’s husband being in Annexure- IIA, IIB and Annexure- IV-A of Justice Agrawal Commission's Report, the syndicate had decided to absorb services of her husband, Ranjit Kumar Chaudhary against the recommended post in the Department of Zoology. As per the recommendation of the Syndicate, the University had issued notification, contained in Memo No. 555, dated 08.02.2005 and services of her husband was regularized as provided under section 4(1)(14) of Bihar State Universities Act, 1976. The Syndicate resolved to cancel the notification of regularization issued in favour of her late husband against first recommended post and a notification was issued on 3 17.01.2006, whereby Gauri Kant Jha, Respondent No. 5 was absorbed as Lecturer with effect from 05.07.1986. This notification had been issued for the same period, for which earlier notification for absorption had been issued in favour of petitioner’s late husband against first recommended post. By the subsequent notification, Respondent No. 5 has been absorbed against second recommended post for the same period, but for no reason, the notification of absorption with respect to petitioner’s husband has been cancelled. Submissions have been made by the petitioner’s counsel, the counsel representing Respondent No. 5, the University and the State. Considering their submissions, what I find that all parties are relying on Justice Agrawal Commission's Report Annexure- IIA, IIB and Annexure- IV-A as well as the judgment of the Apex Court reported in 2005 (1) PLJR 464 (State of Bihar & Ors. Versus Bihar Rajya M.S.E.S.K.K.). They all have submitted that the position of sanctioned and recommended post as indicated in Justice Agrawal Commission's Report and the finding recorded in Apex Court Judgment reported in 2005 (1) PLJR 464 (State of Bihar & Ors. Versus Bihar Rajya 4 M.S.E.S.K.K.), is final and it can not be questioned by any Court, Tribunal or authority, including the High Court. In support of this contention, the counsel, representing Respondent No. 5 has placed reliance on different decisions of Supreme Court. In these Judgments, there is specific finding that issue decided by the Apex Court and the finding recorded by the Supreme Court, neither can be reopened, altered or scrutinized by any forum, including the High Court. Considering the finding recorded in these judgments, the status of sanctioned as well as recommended post mentioned in Justice Agrawal Commission's Report relying upon which the Supreme Court has passed judgment reported in 2005 (1) PLJR 464 (State of Bihar & Ors. Versus Bihar Rajya M.S.E.S.K.K.) can not be changed, modified or interpreted, in any other manner, than it has been recorded in Justice Agrawal Commission's Report and relied upon by the Apex Court. Annexure- IA of Justice Agrawal Commission's Report relates to sanctioned post of Teachers in different Colleges. In K. B. Jha College, Katihar, as per Annexure- IA in the Department of Zoology one post was sanctioned on May 23rd, 1981 and second post was sanctioned 5 on November, 28, 1984, as such number of sanctioned post in the Department of Zoology are two. Annexure- IIA of Justice Agrawal Commission's Report relates to posts recommended by the University up to the cut off date, pending consideration before the State Government. In this list, so far K. B. Jha College, Katihar is concerned, in the Department of Zoology, one post was recommended on April 28, 1986 and that was pending for consideration before the State Government. Justice Agrawal Commission's Report makes it clear that there were two sanctioned posts in the Department of Zoology and one recommended post. The judgment of the Apex Court in para 68 and 73, is very specific that all controversies raised by the parties with regard to the sanctioned, recommended posts, have been rejected and the final decision with regard to sanctioned and recommended post can be made only on the basis of the Justice Agrawal Commission's Report. No correction can be made, subsequent to the judgment of the Apex Court, except for making correction in the name or some typing errors. No other correction as such is permissible, and position of sanctioned / 6 recommended posts will remain same as per Apex Court Judgment, based on Justice Agrawal Commission's Report. As pointed out by the counsel, representing all the parties that Annexure- -IVA, Annexure- IIA and IIB are very specific so far the position relating to sanctioned post and recommended posts are concerned. In the Department of Zoology in K. B. Jha College, Katihar, there were two sanctioned posts and one recommended post. Against first recommended post, Shri Ravi Shankar Mishra was working, who was appointed on 26.03.1983. The second Lecturer in order of seniority was petitioner’s husband, Shri Ranjit Kumar Chaudhary, appointed on 05.07.1980 and third position is of Respondent No. 5, Shri Gauri Kant Jha, appointed on 08.07.1986. Ravi Shankar Mishra is shown in “S category” and Ranjit Kumar Chaudhary as well as Gauri Kant Jha both had been shown in “R-1 category”, but that is only because of the typing error. Since there were two sanctioned posts, Ravi Shankar Mishra and Ranjit Kumar Chaudhary, both will be deemed to be working against two sanctioned posts. Only one recommended post was there and Respondent No. 7 5 being third man in the Department, will be deemed to be working against the first recommended post. In this view of the matter, I do not find that there is any reason for the University to cancel the notification issued in favour of the petitioner’s husband or now also there is no reason for cancelling the notification issued in favour of Respondent No. 5. Respondent No. 5 will be deemed to be absorbed against one recommended post. Petitioner’s late husband, Ranjit Kumar Chaudhary as well as Ravi Shankar Mishra both will be deemed to be working against the sanctioned post. There is no dispute that the petitioner’s husband has worked for the period 05.07.1986 to 18.11.1997. In this view of the matter he would have been entitled for difference of arrears of salary for this period. The University has to make payment of difference of arrears of salary to the petitioner, for this period, which was 05.07.1986 to 18.11.1997. Counsel appearing for the B. N. Mandal University, Madhepura has stated that the University has never disputed so far entitlement of petitioner’s husband with regard to arrears of difference of salary for the period 05.07.1986 to 18.11.1997 is concerned. In support of this statement, the counsel, 8 appearing for the University had drawn my attention towards paragraph 9 of the Counter affidavit, where it has been stated that “As regard the matter of payment of arrears of salary and retirement benefits vide University letter no. A/C P-388/08, dated 15.11.2008; No. A/C-71/10, dated 06.02.2010; and again vide letter no. A/C 290/10, dated 09.09.2010, the Principal of the College along with its copies to the petitioner has requested to make available detailed claim of arrears of salary as well as papers related to payment of retirement dues but till date the same has not been made available from any corner.” I find that the University has no dispute with regard to the claim of the petitioner regarding difference of arrears of salary payable to her late husband for the period 05.07.1986 to 18.11.1997. The Principal, K. B. Jha College, Katihar is directed to send a calculation chart with regard to the claim of the petitioner’s husband within two weeks from today to the B. N. Mandal University, Madhepura and the University will take all necessary steps for payment of difference of arrears of salary payable to the petitioner’s late husband for the period 05.07.1986 to 18.11.1997. Within two weeks from the date of receipt of such calculation chart sent by 9 the Principal of the College to the University. So far claim of the petitioner for compassionate appointment is concerned that is being disputed by the University, placing reliance on a recent Supreme Court’s decision reported in 2011 (3) PLJR 22 (SC). The Supreme Court in the matters of compassionate appointment has held that: “The object of the Scheme is to grant appointment on compassionate ground to a dependent family member of a Government Servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood to relieve the family of the Government Servant concerned from financial destitution and to help it get over the emergency. The eligibility for compassionate appointment is that the indigent family must get immediate assistance for relief from financial destitution. If the family has got other source of income, it is not mandatory that the dependent of the Government Servant died in harness must be appointed on compassionate ground.” The stand of the University is that in case of the petitioner, she is being paid the pension and will also be paid all retirement dues. The husband of the petitioner became traceless in the year 1997 and 10 since then the family has properly managed itself financially. In this circumstance, it is not mandatory that the petitioner be appointed on compassionate ground. So far the delay ground is concerned, it can not be raised by the University, considering the peculiar circumstance of petitioner’s case. Petitioner’s husband became traceless on 18.11.1997 and he could have been declared dead only on completion of seven years of his disappearance, as provided under section 108 of the Evidence Act. In this circumstance, petitioner could have applied for compassionate appointment only when her husband is declared dead. She became eligible for claiming such compassionate appointment, when the legal requirement is fulfilled. Rightly she has claimed her compassionate appointment, when she became eligible for it. So far pension and pensionable benefits are concerned, till date I have not come across any case, in which compassionate appointment has been denied only because family has been allowed pension and pensionary benefits. In this circumstance, any application filed by the petitioner for compassionate appointment must be considered 11 by the University in accordance with law and as per the provisions under the statute. The final decision in this regard must be taken as soon as possible, preferably within three months of this Order. With the aforesaid direction / observation, this Writ Application is disposed of. SKM (Mridula Mishra, J.)