IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5850 of 2003 GOPAL KRISHNA GOKHALE Son of Late Binda Prasad resident of Mohalla Daldali Bazar, Police Station Chapra Town District Saran (Chapra) At present lecturer Bharat Mishra Sanskrit College, Chapra, District Saran (Chapra). Versus 1.THE STATE OF BIHAR through the Secretary, Higher Education, Government of Bihr, Patna. 2.The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 3.The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. with CWJC No.6816 of 2003 PREM KUMARI wife of Sri Paras Nath Chaturvedi, Resident of Mohalla Salempur, Post Office G.P.O. Chapra, Police Station Town Thana, Chapra, District Chapra. (Saran). Versus 1.CHANCELLOR, KAMESHWAR SINGH SANSKRIT UNIVERSITY, DARBHANGA. 2.Vice Chancellor. Kameshwar Singh Sanskrit University, Darbhanga. 3.Pro Vice Chancellor Kameshwar singh Sanskrit University, Darbhanga. 4.Registrar, Kameshwar Singh Sanskrit University, Darbhanga. 5.Prinipal, Bharat Mishra, Sanskrit College, At & P.O.Chapra, District Chapra (Saran). ----------- 14 16.8.2010 Heard counsel for the parties. Pursuant to the order of this Court dated 30.7.2010 reading as follows:- "At the out set Mr. Sinha drawing attention of this Court towards the interim orders of this Court dated 20.3.2008 and 8.8.2008, which read as follows:- “20.3.2008:- From the resolution of the Absorption committee, as contained in Annexure- 10, 11 and 12, it appears that the Committee had resolved to absorb the services of writ petitioner of C.W.J.C. No.5850 of 2003 against the post of Lecturer in Economics whereas it had resolved to absorb the services of the writ petitioner of C.W.J.C. 6816 of 2003 against the vacant post of lecturer in Hindi. In that view of the matter, it appears that there is no conflict between petitioners of two writ applications and there should be no impediment with the university to release payment to the 2 petitioners against respective posts. Learned counsel for the University prays for some time to seek instruction on this issue and to ascertain as to whether it is possible to make payment to the petitioner of C.W. J.C. No.6816 of 2003 against the vacant post of lecturer of Hindi or not. For this purpose learned counsel for the University prays for four weeks time to seek instruction and file further affidavit, if necessary. Put up after four weeks, as prayed for, retaining its position.” “8.8.2008:- In this claim for salary by the two petitioners one of them, CWJC No.6816 of 2003, has an interim order of in her favour. Counsel for the University submits that for modern subject there is only one post of Lecturer sanctioned. He submits that modern subjects includes different disciplines of History, Geography, Political Science, English etc. and, therefore, in view of the interim order it was not possible to pay salary to the petitioner in CWJC No.5850 of 2003. The incongruousness of the stand of having one Lecturer in modern subjects consisting of different discipline is too apparent and perhaps reflective of chaos in the mind of the University itself. Learned Counsel for the University however does not dispute that apart from the present two petitioners addressing lectures of Economics and History it has no other lecturer on the subject and that but for them the College in question is not in a position to impart education to the students. It, therefore, requires their services, failing which the students may be left without lectures in the two disciplines and step outside Classroom for lack of lecture and Lecturer, yet the University expresses its helplessness to pay them salary. At the request of the Counsel for the University put up this matter at the same position after four weeks. Let Counsel for the State also seek instructions of the seriousness of the State to ensure quality education to its next generation of citizens. Let a copy of this order be made available to the Counsels for the University and the State expeditiously on payment of usual costs.” would submit that they have not been complied till date and in fact no counter affidavit has been filed by the Respondents to resolve the issue involved in these two cases. 3 In the opinion of this Court the aforesaid orders would leave nothing for speculation that this Court had directed both the State and the University to explain as to how it intends to manage the teaching working in the constituent Colleges of Kameshwar Singh Darbhanga Sanskrit University by not even sanctioning and consequently paying the salary to the Lecturers in the modern subjects of different disciplines of History, Geography, Political Science and English etc. The staffing pattern introduced for the Sanskrit University and its constituent Colleges, therefore, in a way is under scrutiny of this Court. The State, therefore, was expected to file its clear affidavit with regard to availability and sanction of the posts of Lecturer in the different disciplines of modern subjects. Unfortunately, despite aforesaid two clear orders of this Court dated 20.3.2008 and 8.8.2008 and in fact eleven adjournments in this case the State does not feel it necessary to even respond to the issue raised in the writ application. Constrained by the aforementioned circumstances, this court would now direct the Principal Secretary of the Human Resources Development Department and the Director, Higher Education to appear in person and explain as to why counter affidavit had not been filed in these two cases." the Principal Secretary and the Director Higher Education have appeared in person and have filed counter affidavit and have assured that henceforth of the counter affidavit is each and every case will be filed promptly in this Court. This Court would accordingly exempt their personal appearance. The two writ applications involving a common question with regard to admissibility of payment of salary to both the petitioners has remained pending before this Court for the last seven years and its end is no where in sight inasmuch as the decision of the Full Bench with regard to absorption of the Lecturers in terms of the statutes framed by the Hon’ble Chancellor dated 29.1.1986 has remained still undecided. The two petitioners, however, are claiming payment of salary for their 4 work done and therefore interest of justice would be better served if a finality is given to determination of their rights at least in the matter of receiving payment of salary. Judged on this background if the relief sought by the two petitioners of these two writ applications are closely examined it would now appear that as per present staffing pattern approved by the State Government has only one post in the modern subject in the constituent colleges under Kameshwar Singh Darbhanga Sanskrit University. The government clarificatory letter to the University dated 27th September, 1999 with regard to availability of the sanctioned teaching and non teaching posts as contained in Annexure-A to the counter affidavit filed today would go to show that while six posts of Lecturers were meant exclusively for the oriental subject of Sanskrit, namely, SAHITYA VYAKARAN AND SHASTRA, the post of Lecturer for teaching modern subject was only one. A question, therefore, has now become eminent to be answered as to which of the two petitioners will be getting the benefit of being absorbed against the modern subject, inasmuch as, it is being claimed by the petitioner Gopal Krishna Gokhale that he was appointed by the Governing body of the affiliated college, Bharat Mishra Sanskrit Mahavidayalaya, Chapra (hereinafter referred to as the College) against the sanctioned vacant post of modern subject of Lecturer in Economics, whereas petitioner Smt. Prem Kumari claims that it was she who was appointed against the vacant sanctioned post of modern subject in the capacity of 5 Lecturer in History. From the counter affidavit itself it becomes clear that the University at the earliest point of time had recognized and approved services of Gopal Krishna Gokhale vide letter No.2995 dated 28.1.1982 giving approval of services of Sri Gokhale w.e.f. 1.8.1980 to 31.12.1981 with the benefit of payment of salary for the period 1980-81, whereas, in the case of Smt. Prem Kumari, though her services were approved provisionally by order of the Registrar dated 9.2.1982, but there was a specific condition imposed therein that her payment of salary would only be made after grant is received from the State Government. It appears that thereafter by an order dated 24.9.1983 the University had approved services of Smt. Prem Kumari w.e.f. 1.8.1980 to 30.6.1983 in the pay scale of Rs.510-1155/-, and immediately on the same day the earlier approval granted to the petitioner Gopal Krishna Gokhale for the period 1.8.1980 to 31.12.1981 was cancelled by approving his services on provisional basis. No discernable reason at least emanates from the counter affidavit of the University or the State as to how the earlier approval given to the petitioner Gopal Krishna Gokhale was cancelled and he was made a provisional Lecturer and how could the petitioner Prem Kumari be approved against the sanctioned post specially when there was a specific condition in her earlier order of approval passed by the University that her payment of salary would be made after grant is given by the State Government while 6 occupying the post of lecturer of History in the College. Naturally, as the rights of petitioner Gopal Krishna Gokhale were sought to be prejudiced by the aforementioned order of the Registrar of the University dated 24.9.1983, he had moved not only this Court but also the Hon’ble Chancellor, who ultimately by order dated 20.12.1995 had remitted the matter back to the University for considering the cases of absorption of both Gopal Krishna Gokhale and Prem Kumari in the light of the statutes framed for absorption dated 29.1.1986. The Chancellor’s order dated 20.12.1995 of course did not yield any fruitful result, save and except, the order of the University now stopping payment of salary of Prem Kumari vide memo no.1368 dated 12.2.2002 which has been assailed in the other writ application filed by Prem Kumari, C.W.J.C. No. 6816 of 2003. It appears that on 20.9.2004 this Court had stayed operation of the impugned order of the University dated 12.2.2002 and by virtue of that stay order the petitioner Prem Kumari has continued to draw salary, whereas, the petitioner Gopal Krishna Gokhale has remained without payment of salary for all these period. As noted above, there was a direction of the Hon’ble Chancellor to consider case of absorption of both the persons against one single post but the said exercise could not be completed in the last 15 years, primarily on account of question raised on the sanctity and validity of such statutes framed by the 7 Hon’ble Chancellor in derogation and in teeth of section 57 of the Bihar State Universities Act. The matter, however, is still subjudice before the Full Bench but then as issue of payment of salary has been agitated in both the writ application and that is how this Court on 20.3.2008 and 8.8.2008 had examined the matter at length and had found rather a piequant situation that in a constituent college under the University there was provision only either for the post of Lecturer in Economics or in History and had accordingly directed the University and the State Government to file their counter affidavits. That having been not done, this Court by order dated 30.7.2010 had directed for personal appearance of both the Principal Secretary of the Human Resources Development Department and the Director of Higher Education. They have appeared in person and offered apology and have also explained that so far the State Government is concerned, it has consistently maintained its policy in giving grant-in-aid by way of payment of salary to the constituent colleges of Sanskrit University on a fixed a parameter wherein there is a provision only for one lecturer in the modern subject and as such the government cannot release fund for payment of salary to both the petitioners. In view of the fact that now post is one and there are two claimants, petitioner Gopal Krishna Gokhale by virtue of his appointment on the post of lecturer in Economics and petitioner Prem Kumri on the post of lecturer in History and both are claiming to be appointed on the same day by the same Governing 8 body at a point of time when the college was only affiliated college and both of them have also claimed to be continuing in the college which became a constituent in the March 1982, this Court would find it necessary that the University in exercise of its power under section 4 (1) (14) of the Act should decide as to who out of the two or whether any one of the two is entitled to be absorbed in the services of the University. Sections 4 (1) (14) reads as follows:- “Purposes and powers of the University:- (1) There shall be the following purposes and powers of the University:- (14)to enter into agreement with other bodies and persons for promoting the purposes of this Act and to assume the management of any institution under them and to take over its assets and liabilities; Provided that before entering into such an agreement the University shall obtain the sanction of the State Government, or shall do so upon receiving such a proposal from the State Government; Provided further that if at any time any irregularity is found in determination and payment of any pay, special pay or allowances, or in any appointment in an institution taken over by the University in its management under such an agreement, then, notwithstanding anything to the contrary contained in this Act, the University shall have the powers to take decisions after reviewing it and such a decision shall be final and binding.” Admittedly this college was made constituent in the March 1982 and therefore, the University will have to exercise its power and jurisdiction to decide the case of both the petitioner for their continuance in service and payment of salary from the funds of the State Government. As the provision of section 4 (1) (14) will go to show that in such exercise the University has to also find out as to whether there was any illegality in the earlier 9 determination made and to review such decision, any earlier order passed either in favour of Gopal Krishna Gokhale or Prem Kumari will not stand in the way of the University to take an appropriate decision. In such exercise the University will however take into account the provisions which were then in force at the time of their appointment on the post of lecturer and if it is found that either of them or both of them did not possess the requisite qualification, there will be no question of their appointment being approved and absorbed with the consequential benefit of payment of salary. The University must take a final decision within a period of six months, but only after affording an opportunity of personal hearing to both Gopal Krishna Gokhale and Prem Kumari, who may produce any evidence that they may choose for demonstrating that their appointment was made validly by the governing body and such appointment could be approved by the University. Since there is a provision of only for one post in modern subject, the University will also decide as to who amongst the two will be entitled for payment of salary at least from the date of order. The claim for payment of arrears of salary, in case of Gopal Krishna Gokhale is found to be rightful person for being absorbed in services of the University, would be examined separately, but in case of appointment Prem Kumari is found to be valid, her payment of salary shall be kept continued. However, payment of salary of Prem Kumari henceforth i.e, from the month of September, 2010 shall not be made till the issue as with regard 10 to absorption of services of Gopal Krishna Gokhale and Prem Kumari is finally decided by the University in exercise of powr under section 4 (1) (14) of the Act. With the aforementioned observation/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)