IN THE HIGH COURT OF JUDICATURE AT PATNA MJC NO. 1972 OF 2010 DR. KUMKUM SINGH, W/O BRAJ NANDAN SINGH, R/O BARA BAZAR, PS. KOTWALI TOWN AND DISTRICT MUNGER. .......PETITIONER. VERSUS 1.THE T.M BHAGALPUR UNIVERSITY, BHAGALPUR, THROUGH ITS REGISTRAR. 2.THE VICE CHANCELLOR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 3.THE REGISTRAR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 4.THE FINANCIAL ADVISOR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 5.THE FINANCE OFFICER, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 6.THE PRINCIPAL, JAMALPUR EVENING COLLEGE, JAMALPUR, DISTRICT MUNGER. 7.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA. 8.THE DEPUTY SECRETARY, EDUCATION DEPARTMENT (NOW KNOWN AS HUMAN RESOURCES DEVELOPMENT DEPARTMENT), GOVERNMENT OF BIHAR, PATNA. 9.THE DIRECTOR, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 10.MR. K.K PATHAK, I.A.S SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA. .......RESPONDENTS. WITH MJC NO. 1974 OF 2010 DR. KUMKUM SINGH, W/O BRAJ NANDAN SINGH, R/O BARA BAZAR, PS. KOTWALI TOWN AND DISTRICT MUNGER. .......PETITIONER. VERSUS 1. THE T.M BHAGALPUR UNIVERSITY, BHAGALPUR, THROUGH ITS REGISTRAR. 2. THE VICE CHANCELLOR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 3. THE REGISTRAR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 4. THE FINANCIAL ADVISOR, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. 5.THE UNIVERSITY SELECTION COMMITTEE, T.M BHAGALPUR UNIVERSITY, BHAGALPUR THROUGH ITS REGISTRAR. 6.THE FINANCE OFFICER, T.M BHAGALPUR UNIVERSITY, BHAGALPUR. ...........RESPONDENTS. ---------- - 2 - 2/ 11.08.2010 Heard Mr. Purushottam Kumar Jha, learned counsel for the petitioners. Learned counsel for the petitioners submits that the order of this Court dated 16.03.2010, passed in C.W.J.C No. 16769 of 2009 and C.W.J.C NO. 17058 of 2009 reading as follows:- Heard Mr. Purushottam Kumar Jha and Mr. Subodh Kumar Sinha, learned counsel for the petitioners, Mr. K.K. Jha and Mr. Anil Kumar, learned counsel for the State, and Mr. Anil Singh, learned counsel for the University. It is submitted by learned counsel appearing for the petitioners that the controversy is covered by the decision rendered in LPA. No.1304 of 2009 (Lalit Narayan Mithila University Vs. Ashok Kumar and others) and other connected matters. Learned counsel for the State fairly accedes to the same. The writ petitions are disposed of in terms of the order dated 11.3.2010 passed in LPA. No.1304 of 2009 and other connected matters. There shall be no order as to costs. should be recalled, inasmuch as, it has been wrongly recorded therein that the learned counsel for the petitioners had submitted that the controversy in two writ petitions is covered by the decision - 3 - rendered in L.P.A No. 1304 of 2009 (Lalit Narayan Mithila University vs Ashok Kumar and others) and connected matters. In order to explain this aspect, Mr. Jha has in this regard placed on record his own certificate dated 05.04.2010 stating therein, that he had never made such a submission that the issue raised by the petitioners in the two writ applications C.W.J.C No. 16769 of 2009 and C.W.J.C No. 17058 of 2009 are covered by the order passed by the Full Bench on 11.03.2010 in L.P.A No. 1304 of 2009. We have examined the materials on record and would find that on 11.03.2010, a batch of writ petitions along with L.P.A No. 1304 of 2009 were listed before the Full Bench to which one of us (Mihir Kumar Jha, J) was a party. Since, the L.P.A No. 1304 of 2009 was heard along with a batch of 381 writ petitions relating to teachers of the constituent Colleges of fourth phase covered and governed by Justice S.C Agrawal Commission’s report and the order of the Apex Court in the case of State of Bihar - 4 - and Ors vs Bihar Rajya M.S.E.S.K.K vs Mahasangh and others, reported in 2005(9) SCC 129 which were tagged along with other pending cases before the learned Single Judge, the three cases of the petitioners, C.W.J.C No. 16159 of 2009, C.W.J.C No. 16769 of 2009 and C.W.J.C No. 17058 of 2009 and were also referred to Full Bench by an order dated 17.02.2010 and were listed on 11.03.2010 before the Full Bench and of them the aforesaid three writ petitions of the petitioners along with eight other writ petitioners namely, C.W.J.C No. 9366 of 2009 ( Dr. Gopal Prasad Sah & Anr vs The T.M Bhagalpur University & Ors), C.W.J.C No. 9130 of 2009 (Chitralekha Shrivastwa vs The State of Bihar and Ors), C.W.J.C No. 16192 of 2009 (Md. Israrul Haque Khan and Ors Vs The State of Bihar & Ors), C.W.J.C No. 9523 of 2009 (Dr. Meera Kumari Vs Magadh Unviersity & Ors), C.W.J.C No. 9527 of 2009 (Dr. Rimjhim Sheel vs Magadh University & Ors), 9535 of 2009 ( Dr. Krishna Kumari Verma vs Magadh University & Ors), C.W.J.C No. 9744 of 2009 (Rajendra Prasad & Ors vs The State of - 5 - Bihar & Ors), C.W.J.C No. 11878 of 2009 (Dr. Braj Kishore Jha vs The T.M Bhagalpur University & Ors) and C.W.J.C No. 9573 of 2009 Dr. Kumkum Narayan vs Magadh University & Ors) were delinked by passing the following order on 11.03.2010:- “These writ petitions were referred to a larger Bench along with LPA No. 1304 of 2009 on 17.02.2010. Learned counsels appearing for the petitioners herein submitted that the controversy involved in these writ petitions is different than that has arisen in the LPA No. 1304 of 2009. In view of the aforesaid the said writ petitions are dilinked. Regard being had to the controversy in question let these writ petitions be listed on Tuesday next (16.03.2010) before the Bench presided over by the Chief Justice.” The Full Bench had, however, disposed of L.P.A No. 1304 of 2009 and its other analogous writ petitions by a common judgment dated 11.03.2010, relevant portion whereof reads as follows:- 31. At this juncture, we may state that the learned counsel appearing for the writ petitioners echoed in one voice that none of the - 6 - employees are in List (iii). Mr. P.K.Shahi, learned Advocate General and Mr. Lalit Kishore, learned counsel appearing for the Lalit Narayan Mithila University submitted that the Commission has prepared a list of recommended posts of teaching staff up to a particular cut-off date. The Commission has also made a separate list of teachers who have been found eligible for consideration regard being had to the subject, attaining of eligibility, possession of minimum qualification and various other factors. The Commission had carried out an exercise pertaining to claim of non-teaching employees of each and every college on the basis of sanctioned and recommended posts up to the cut-off date. The absorption made by the universities have to be scrutinised in the backdrop of the decision rendered by their Lordships in Mahasangh case (supra) as well as on the anvil of the report of the Justice Agrawal commission as has been held by the Apex Court in paragraphs 61 to 64 and such other relevant paragraphs. The scanning and scrutiny cannot be done by this court and, therefore, we had given the suggestion for appointment of a two member commission and we are disposed to think the same is necessitous in this case. 32. In view of the aforesaid, Shri Justice S.N. Jha, a former Chief Justice of Rajasthan High - 7 - Court, and Mr. Vijay Shankar Dubey, Ex-Vice Chancellor of Nalanda Open University are appointed as two member Commission and Mr. Dhananjay Kumar, a retired Director of Higher Education is appointed as the Secretary to assist the Commission. 33. Needless to emphasise, the Commission shall permit the lawyers to assist. As undertaken by Mr. Vinod Kumar Kanth, Mr. Ajit Kumar Sinha and Mr. Chitranjan Sinha, learned senior counsel they are prepared to render all legal assistance to the Commission, if so desired by the Commission. 34. Mr. Shahi, learned Advocate General fairly stated that the State Government shall provide the requisite secretariat staff and remunerations after due deliberations with the Members and Secretary to the Commission. 35.Now presently to the realm of adjudication by the Commission. We are inclined to state that the Commission, as appointed by us, shall advert to the following issues:- (i) The employees whose names figured in List-III as has been held by the Apex Court in sub- paragraph-5 of paragraph 73 shall stand excluded. (ii) The Commission shall adjudge the cases of each of the employees on the anvil of the Justice Agrawal Commission Report and the decision in Mahasangh case (supra), especially keeping in view the paragraphs 61 to 64 and - 8 - paragraphs 73 and 74. (iii) The Commission shall also look into the cases of non-teaching staff on the anvil of the judgment passed in Mahasangh case (supra) and the recommendations of Justice Agrawal Commission. (iv) Each of the writ petitioners shall file their requisite brief before the Commission. The Registrars of the Universities shall produce all relevant records as directed by the Commission failing which they shall be liable for contempt of this court. (v) The Commission shall carry out the exercise and finalise the matter by the end of June, 2010. It is a matter of record that out of the three writ petitions of the petitioners while two of them, C.W.J.C No. 17679 of 2009 and C.W.J.C No. 17058 of 2009 were related to her claim of absorption on the post of Lecturer in the department of Home Science in Jamalpur College, one of the constituent Colleges of the fourth phase covered by S.C Agrawal Commission’s report and the order of the Apex Court in the case of Mahasangh (supra), the third one, C.W.J.C No. 16159 of 2009 had no link with the fourth phase - 9 - Colleges, inasmuch as, in that case, C.W.J.C No. 16159 of 2009, the challenge of the petitioner was to a notification appointing her on the post of Principal in the Reader's pay scale in M.A College, Naugachia. Thus when all the delinked cases including the three cases of the petitioners were listed again on 16.03.2010, before the Division Bench, Mr. Purushottam Kumar Jha, learned counsel for the petitioners had made a submission that out of the three cases two of them namely C.W.J.C No. 16769 of 2009 and C.W.J.C No. 17058 of 2009 should be disposed of in terms of the order passed on 11.03.2010 in L.P.A No. 1304 of 2009. In this regard it has to be noted that it is the case of the petitioner herself that she was appointed in Jamalpur College in the department of Home-Science against the recommended post on 19.09.1984 by the University but somehow her name was included in list R- 2/NR in the category of post recommended after the cut of date of 30.04.1986 or on non-recommended post in the report of Justice S.C Agrawal Commission even when - 10 - she stood validly absorbed in view of her name also figuring in list-IV-A of the report of Justice S.C Agrawal Commission’s report. This petitioner in C.W.J.C No. 16769 of 2009 in fact had actually sought a declaration that she had been validly absorbed by the University in terms of Justice S.C Agrawal Commission’s report and would be entitled to all consequential benefits. C.W.J.C No. 17058 of 2009 in fact was filed by the petitioner by way of another consequential benefit seeking first time bound promotion on the post of reader on the assumption that she had stood absorbed in the University w.e.f 06.03.1990. We have in this connection also perused the record of C.W.J.C No. 16159 of 2009 relating to her challenge to the notification of her separate appointment on the post of Principal in M.A College, Naugacahia and from the same it would appear that having heard Mr. Jha, learned counsel for the petitioner as also learned counsel for the University, the Division Bench had adjourned that case for four weeks and on 19.04.2010, the said case - 11 - C.W.J.C No. 16159 of 2009 was admitted for final hearing by directing the parties to complete the pleadings on or before 05.07.2010. The present two miscellaneous applications, M.J.C No. 1972 of 2010 and 1974 of 2010 in fact were filed on 04.05.2010 by the petitioner on a plea that the controversy in these two writ petitions was not covered by order passed in L.P.A No. 1304 of 2009 and that, the Division Bench had wrongly recorded the submission of Mr. Jha in the order dated 16.03.2010. The very fact that if Mr. Jha had not made such submission for disposal of C.W.J.C No. 16769 of 2009 and C.W.J.C No. 17058 of 2009 for its being disposed of in terms of L.P.A No. 1304 of 2009 dated 16.03.2010, he had still an opportunity to bring this fact to the same Division Bench when the petitioner’s third writ application having been delinked with L.P.A No. 1304 of 2009 was separately heard on 16.03.2010 and ultimately admitted on 19.04.2010 but no such prayer seems to have been made by the learned counsel for the petitioner even on - 12 - 19.04.2010. As a matter of fact on 11.03.2010, it was not only the three cases of the petitioner but also eight other cases, C.W.J.C No. 9366 of 2009, C.W.J.C No. 9130 of 2009, C.W.J.C No. 16192 of 2009, C.W.J.C No. 9523 of 2009, C.W.J.C No. 9527 of 2009, C.W.J.C No. 9535 of 2009, C.W.J.C No. 9744 of 2009 C.W.J.C No. 11878 of 2009 and C.W.J.C No. 9573 of 2009 which were also delinked for its being placed on 16.03.2010, but on 16.03.2010 only four of them namely two writ petitions of the petitioner C.W.J.C No. 16769 of 2009 and 17058 of 2009 were disposed of along with two other cases of the lot of eleven cases delinked on 11.03.2010, being C.W.J.C No. 1187 of 2009 and C.W.J.C No. 9130 of 2009. In fact rest of seven cases including one of the petitioner, C.W.J.C No. 16159 of 2009 were not disposed of in terms of the order of the L.P.A No. 1304 of 2009 which would by itself would be an evidence of the fact that only such cases were disposed of by the Division Bench in terms of order of L.P.A No. 1304 of 2010 in which a specific - 13 - prayer was made by their respective counsel namely either Mr. Purushottam Kumar Jha or Mr. Subodh Kumar Sinha for its being disposed of in terms of order dated 11.03.2010 in L.P.A No. 1304 of 2009 and its analogous cases. A question, therefore, would arise as to what would be the effect of statement of a counsel, recorded in the order of the Court when it is sought to be subsequently resiled. The Apex Court in the case of State of Maharastra vs Ramdas Shrinivas Nayak and Anr reported in AIR 1982 SC 1249 in this connection had held as follows:- “4…… We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation”.(Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the judges recorded in their judgments, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that - 14 - statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (per Lord Buckmaster in Madhusudan vs Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there……” The same view was also reiterated by a Division Bench of this Court in the case of Gopaljee Jha Vs The State of Bihar and Ors reported in 1994(1) PLJR 755, wherein, it was held as follows:- "From the above, it would be seen that non-supply of the enquiry report was not at all urged before the learned single Judge as a ground of attack against the impugned orders. But, it was urged by appellants' counsel that the plea was taken before the learned Single Judge; but was not considered. I am of the view that such a plea is not open to the appellants in the appeals. If there was misconception or mistake in court records, that should be corrected by review. As to what happened in Court or what were the pleas urged before the learned Single Judge should be decided with reference to the recitals contained in the - 15 - judgment." As a matter of fact, miscellaneous application after disposal of a writ petition itself is not maintainable for recall of the order as is the prayer in these two applications. The proper recourse as held by the Division Bench in the case of Gopaljee Jha (supra) would be filing of a review application. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of State of Uttar Pradesh vs Shri Brahm Datt Sharma and Anr reported in AIR 1987 SC 943, wherein, it was held as follows:- “10. The High Court’s order is not sustainable for yet another reason. Respondent’s writ petition challenging the order of dismissal had been finally disposed of on 10.08.1984, thereafter nothing remained pending before the High Court. No. miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29.1.86 he could have filed a separate petition under Art. 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were - 16 - pending before it. The High Court committed error in entertaining the respondent’s application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.” That being so, these two miscellaneous applications are wholly misconceived and are, accordingly, dismissed. (Jayanandan Singh, J.) (Mihir Kumar Jha,J.) Pradeep/ Ranjan