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Judgment
Mihir Kumar Jha, J.—Heard learned counsel for the parties.
The prayer of the petitioner in this writ application reads as follows:
"1. That, this is an application for quashing the letter No. 1177/15 dated 29.05.2015 up to extent of which at item Nos. 4 and 6, it ahs been said that the payment of salary to the petitioner is not possible and the arrears of salary for the year 2012-13, 2013-14, 2014-15 has to be returned to the University, by issuance of writ in the nature of CERTIORARI as well as for issuance of writ in the nature of Mandamus or any other writ/writs, or direction/directions to the Respondents to pay the arrears of salary to the petitioner for the period March, 2013 to September, 2014 and November, 2014 till today as well as to pay the current salary to the petitioner in accordance with law."
Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that in view of the findings recorded by the Principal Secretary, Education Department, in terms of the order of this Court, holding there to be a sanctioned post of Lecturer in Botany in K.B. Jha College, Katihar for the petitioner, there ought to have been no difficulty in making payment of salary to the petitioner and as such the impugned order dated 29.05.2015 passed by the Registrar as well as the Finance Officer of the B.N. Mandal University (hereinafter referred to as ''the University''), denying payment of salary to the petitioner for the period 2012-13, is factually incorrect and legally impermissible.
Per contra, learned counsel for the State and the University has taken a stand that the payment of salary to the petitioner was not permissible inasmuch as absorption of services of the petitioner as a Lecturer in the Department of Botany in K.B. Jha College, Katihar was not possible in view of the judgment of the Apex Court in the case of State of Bihar and Others Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, and the subsequent order of Justice S.B. Sinha Commission dated 30.11.2014.
In order to decide the question of payment of salary to the petitioner involved in this writ application, it would be necessary for this Court to take into account some of the relevant facts. K.B. Jha College, Katihar is one of the 40 colleges (four out of them now in the State of Jharkhand), which was made constituent unit of the L.N. Mithila University and has now become part of the B.N. Mandal University in view of the decision of the State Government dated 19.08.1986.
As a matter of fact, when 40 affiliated colleges were made constituent on the specified terns and conditions set out in the order of State Government dated 19.08.1986 and the Government as well as University could not decide the issue of absorption of the working teaching and non-teaching employees in those 40 colleges within a period of next ten years and as such the matter had travelled to this Court. This Court, by a judgment dated 31.01.1997 in a batch of writ petitions including one filed by Mahasangh since reported in Bihar Rajya Mahavidyalaya Shikahak Avam Shiksheketar Karamchari Kalyan Mahasangh and Others Vs. The State of Bihar and Others, had held that it was well within the domain of the respective University to take a decision for absorption of teaching and non-teaching employees of the 40 colleges, which were made constituent in the fourth phase under the decision of the State Government dated 19.08.1986 by invoking the provisions of Section 4(1)(14) of the Bihar State University Act, 1976. Against the aforesaid judgment, the State of Bihar had gone in appeal before the Apex Court and the Apex Court having found that there were a number of factual disputes, it had constituted a One-man Enquiry Commission under its order dated 12.10.2001 which is known as Justice S.C. Agrawal Enquiry Commission to go into the various controversies and disputes with regard to the absorption of employees of the erstwhile affiliated colleges in the services of the converted constituent colleges. The terms of reference to be answered after inquiry, by one-member Commission of the Hon''ble retired Judge of the Supreme Court had read as follows:
"Terms of reference"
(1). How many sanctioned posts of teachers and non-teaching employees were there in the 40 colleges which were converted into constituent colleges pursuant to the sanction letter dated 19-8-1986 of the State of Bihar?
(2). How many proposals with regard to creation of posts for teachers and non-teaching employees had been submitted to the Education Department of the State of Bihar or universities before 30-4-1986, the cut-off date mentioned in Appendix ''Kha'' (p. 208 of SLP) with respect to 36 colleges converted into constituent colleges as per government letter dated 19-8-1986? [List of colleges is at pp. 206-07 of SLP and other dates mentioned in government communications in respect of four other colleges]?
(3). How many teachers and non-teaching employees seeking absorption in the constituent colleges were not appointed through selections made by the College Service Commission/University Service Commission and whether they possess the basic qualifications prescribed by the Act and statutes? This exercise will be without prejudice to the contention of the respondents that Section 57A is not applicable to such selection, as has been held by the High Court in the judgment?
(4). How many teachers and non-teaching employees would be entitled to absorption on the basis of the government letter dated 19-8-1986 and Appendix ''Kha'' and the agreement entered into between the university concerned and the constituent college under Section 4(1)(14) of the Bihar State Universities Act, 1976 and other orders of the Government?"
It is the matter of record that in respect of K.B. Jha College, Katihar, Justice S.C. Agrawal Commission had found there to be only one sanctioned post in the subject of Botany, which was sanctioned in the month of October 1985. This would become more clear from Annexure-1A of the report of Justice S.C. Agrawal Commission in respect of K.B. Jha College, Katihar, brought by the petitioner also on the record by way of Annexure-7 to the writ application, which reads as follows:
The One-man Enquiry Commission had also considered the cases of absorption of as many as 73 teaching employees of K.B. Jha College, Katihar including two in the Department of Botany, namely, (i) Ravindra Nath Tripathi and (ii) Sri Abdul Latif (petitioner), who were appointed on 04.12.1981 and 12.05.1986 respectively by the Governing Body of the affiliated college. As a matter of fact Justice S.C. Agrawal Commission has recommended for absorption of Sri Ravindra Nath Tripathi, against the solitary sanctioned post of Lecturer in Botany in K.B. Jha College, Katihar.
After the Justice S.C. Agrawal Commission report had been submitted before the Apex Court, all the cases were heard and disposed of by a judgment dated 12.10.2004 since reported in the case of State of Bihar and Others Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, . The Apex Court infact had made a threadbare discussion and in Para No. 21 of the judgment, it was held that the Commission''s recommendation with regard to absorption of only such teachers was permissible, who were either working against the sanctioned post or who were working against additional post for which proposal for sanction had been received from the Universities by the State Government before the cut off date i.e. 30.04.1986. To that extent, it would be also relevant to quote para-21 of the Judgment of the Apex Court in the case of Mahasangh (supra):
"21. We have perused carefully the contents of decisions of the Government taken by it from time to time which are contained in its letters dated 19-8-1986, 25-8-1986, 12-6-1987 and 18-12-1989. At this very stage, it would be proper for us to opine that we find no merit in the objections submitted to this part of the report of the Commission which is based on the contents of the various resolutions of the Government on the subject of converting affiliated colleges into constituent colleges. We agree with the opinion of the Commission that only such members of the staff are liable to be considered for absorption who were working against additional posts for which proposals had been received from the universities by the State Government before the cut-off date. The other proposals for creation of posts which were pending at the university level are outside the purview of the various decisions taken by the Government to take over the 40 affiliated colleges. The claims for absorption of services of employees working against posts for which proposals had not reached the State Government before the cut-off date, are liable to be rejected."
(underlining for emphasis)
The Apex Court, as with regard to finding of Justice S.C. Agrawal Commission, in terms of point of reference No. 4 in para-27, had again reiterated the findings of the Commission as with regard to identification of teachers of non-teaching employees who were entitled for absorption and it was categorically held that only teachers appointed against the sanctioned post or the teachers working against the recommended post sent by the University to the State Government prior to cut off date of 30.04.1986 were entitled for absorption. Para 27 of the judgment of Apex Court reads as follows:
In answer to Term of Reference 4 requiring identification of teachers and non-teaching employees who are entitled to absorption on the basis of government resolution dated 19-8-1986 and the agreements entered into between universities and the colleges concerned, the Commission after a thorough enquiry and probe into records of the various colleges has given three separate lists--(i) teachers appointed against the sanctioned posts have been placed in the order of the date they became eligible for consideration; (ii) list of teachers appointed against posts for which the recommendations were sent by the universities to the State Government up to the cut-off date are arranged in the order of the date they became eligible for consideration; and (iii) list of teachers appointed against posts for which recommendations were sent by the universities to the State of Bihar after the cut-off date and those for which no recommendations were sent by the universities."
As a matter of fact, from para 27 of the judgment, the concept of three list prepared by Justice S.C. Agrawal Commission also becomes very clear inasmuch as List-I was in respect of the teachers appointed against the sanctioned post whereas List-II was for the teachers appointed against the post of which recommendations were sent by the University to the State Government up to the cut off date and List-III was for the teachers appointed against the post for which recommendation were sent by the University to the State of Bihar after the cut off date as well as those for which no recommendations were sent by the University.
The Apex Court, in fact, had also gone into the issue of the recommended post separately and while upholding the recommendation of Justice S.C. Agrawal Commission as with regard to cut off date of 30.04.1986, it had held as follows:
After hearing the counsel appearing for various parties and considering their objections, we find no difficulty in accepting the report of the Commission so far as List No. (i) containing names of employees working on sanctioned posts and List No. (ii) containing names of employees working on posts for which recommendations were sent by the universities to the State up to the cut-off date. So far as List No. (iii) is concerned, it has been seriously objected to by the State Government and, in our opinion, there is justification for it. The teachers, who were appointed against the posts for which recommendations were sent by the universities to the State after cut-off date or for which there were no recommendations sent by the universities, can claim no right of consideration for absorption, whatever may be the reasons for alleged delay in sending recommendations. It is likely that due to fortuitous circumstances some recommendations which could have been sent by the universities to the State were not submitted before the cut-off date, nonetheless, on the basis of clear terms of the government resolution, such appointees working on posts recommended after cut-off date can legitimately claim no right of being considered for absorption.
This Court, in fact, will not be required to deal with other part of the findings in the judgment of Mahasangh (supra) inasmuch as in the operative portion of the judgment, the Apex Court had ultimately reached to the following conclusions:
Conclusions
The judgment of the High Court, to the extent of the interpretation placed by it on the provisions of Section 4(1)(14) and Section 35 with the directions issued in paras 24 to 26 therein, is hereby confirmed for the reasons recorded by us above.
The report of the Commission of Enquiry of Hon''ble Justice S.C. Agrawal (Retired), is accepted and all objections filed against the said report are rejected.
The members of the staff in various affiliated colleges identified and named in List (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the universities concerned.
The universities shall take a decision under Section 4(1)(14) of the Act in the matter of absorption of appointees named in List (ii) of the report of the Commission, being appointees against posts for which recommendations were sent by the universities to the State up to the cut-off date in accordance with the decision of the State Government conveyed in its letter dated 19-8-1986 followed by letters dated 25-8-1986 and 12-6-1987.
In considering the question of absorption of appointees named in List (ii) of the report of the Enquiry Commission, the universities concerned shall rely on the contents of the report of the Enquiry Commission and the present judgment of this Court.
The appointees mentioned in List No. (iii), being the appointees against posts for which recommendations were sent by the universities to the State Government after the cut-off date or those working against posts for which no recommendations were sent for approval of the State Government, have no right of being considered for absorption--whatever may be the fortuitous circumstances or otherwise in the matter of not sending recommendations for sanction in their cases. The negative report of the Enquiry Commission with regard to List No. (iii) is accepted and the universities are directed to exclude all such appointees named in List No. (iii) from consideration for absorption.
A large number of objections to the report of the Enquiry Commission filed before us by associations of employees and individuals pertain to the alleged lack of prescribed qualifications for the posts on which they are working. All those objectors have not been recommended for absorption in the report of the Enquiry Commission. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for the teaching and non-teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained above.
Pursuant to the aforementioned judgment, the University however despite the fact that the name of the petitioner was not included in List-I and was incorporated in List-III had, by its order dated 17.01.2006, issued an order for absorption of services of the petitioner in terms of Section 4(1)(14) of the Act. Based on that the State Government also had released funds for payment of salary to the petitioner vide its order dated 25.07.2006 to the tune of Rs. 2,98,409/-. It, however, appears that subsequently a dispute had arisen as with regard to payment of salary of the petitioner at the behest of the principal of K.B. Jha College, Katihar who had taken a stand that there was only one sanctioned post of Lecturer of Botany and the petitioner appointed on 12.05.1986 by the private management of the affiliated college being not working in the college on cut off date i.e. 30.04.1986 was not entitled for payment of his salary. That issue, in relation to payment of salary to the petitioner, had been thereafter raised by the petitioner before this Court by filing C.W.J.C. No. 8621 of 2006, which was disposed of by this Court by an order dated 22.01.2008, which reads as follows:
"Heard the learned Counsel for the petitioner and the learned Counsel for the State. No one appears on behalf of the University when the matter is called out and neither has any counter affidavit been filed on behalf of the University.
The petitioner was appointed as a Lecturer in the K.B. Jha College, Katihar in the Department of Botany in the year 1986. It is his case that he was appointed against a sanctioned post. The College was established with public donation and was taken over by the State Government in the year 1986 when it became a constituent unit of then L.N. Mithila University, Darbhanga.
The issue of the legality of the appointment of the petitioner came to be then considered when after contest including writ petition before this Court, the Syndicate of the University by its order dated 6.6.2001 proceeded to consider his case for regularization. In pursuance of the Agrawal Committee Report under the orders of the Supreme Court, it is the case of the petitioner that his services came to be regularized by an order dated 17.1.2006 at Annexure-18.
Counsel for the petitioner submits that thereafter the original relief as sought in the writ application for release of salary withheld since March 2006 stands satisfied and to that extent the petitioner has no grievance.
He however submits from a supplementary affidavit filed today that even after such regularisation of the services of the petitioner, the respondent University has again not mentioned the name of the petitioner in the budget estimate sent to the Government for release of the fund for the year 2008-09. He therefore apprehends that he shall again illegally be denied salary notwithstanding his regularisation.
If the services of the petitioner have been regularized and the same has been acted upon by release of his arrears of salary there is no justification for the University not to include his name in the budget estimate for the year 2008-09.
This Court therefore considers it proper to dispose of this application with liberty to the petitioner to file a representation before the Registrar of the University. Upon filing of such representation, the Registrar is directed to examine the matter and make appropriate corrections in the budget estimate sent to the Government for the Year 2008-09 including any supplementary demand with regard to the same in so far as the petitioner is concerned. Such appropriate action shall be taken by the Registrar of the University within a period of six weeks from the date of submission of such representation before him.
The writ application stands disposed off with the aforesaid directions."
It, however, appears that the issue relating to payment of salary to the petitioner still remained disputed on account of stand of the Principal of the K.B. Jha College that there was only one sanctioned post of Lecturer in K.B. Jha College and the petitioner again moved this Court in CWJC No. 20737 of 2012 seeking a direction to the respondent authorities for making payment of his salary for the month of July, 2012 and September 2012.
During the pendency of this writ application, the petitioner had filed another writ application being CWJC No. 18204 of 2013 wherein he had sought quashing of an order dated 06.08.2013 whereby and whereunder claim of payment of salary of the petitioner had been rejected and in that writ application, apart from claiming of payment of salary, the petitioner had also sought a declaration that the University had no authority to withhold the salary of the petitioner after passing of the order of absorption of services of the petitioner on 17.01.2006.
This Court, having taken into consideration the stand of the Principal of the College that the petitioner was not entitled for payment of salary on account of his name being not recommended by the Justice S.C. Agrawal Commission, had recorded its findings in its judgment dated 11.12.2013 in C.W.J.C. No. 18204 of 2013, which for the sake of clarity and convenience is quoted hereinbelow:
Heard learned Counsel for the parties.
In both the writ applications, the petitioner, claiming to be an Associate Professor in the Department of Botany, is basically aggrieved of the actions/orders of the State Government and the University including the Principal of K.B. Jha College, Katihar (hereinafter referred to as "the College") as with regard to payment of his arrears and current salary. To make thing more clear, it would be necessary to extract the reliefs sought by the petitioner in the writ application, CWJC No. 20737 of 2012, which reads as follows:
"(i) for issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of salary to the petitioner for the month of July, 2012 to September, 2012, which has already been paid to other teacher of the College but despite grant of fund by the State Government and the Respondent University, the Respondent No. 5 has mentioned "Zero" salary against the name of the petitioner in the statement which he had forwarded to the Bank for payment of salary to the teachers of K.B. Jha College, Katihar.
(ii) For a declaration that if the petitioner is discharging his duties uninterruptedly in between the period July, 2012 to September, 2012, he also entitled for payment of salary and the respondent No. 5 is not competent to withhold it, if there is no order of any competent authority withholding the salary of the petitioner for the aforesaid period and if sufficient grant has been made available to the respondent No. 5 for payment of salary to the petitioner also."
It has to be noted that during pendency of the writ application, CWJC No. 20737 of 2012 which was filed on 02.11.2012, another writ application, CWJC No. 18204 of 2013, has been filed wherein the petitioner has sought following relief:
"(I) For issuance of an appropriate writ in the nature CERTIORARI for quashing the letter dated 06.08.2013 issued under the signature of the respondent No. 5 and contained in his letter No. A/C�70/13 dated 06.08.2013 whereby and whereunder he has been pleased to communicate the reasons to the petitioner for withholding his salary from March, 2013 till date.
(II) For issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the respondent Authorities for payment of salary to the petitioner for the month of July, 2012 to September, 2012 and March, 2013 and onwards which has been illegally withheld by the respondent No. 5 though the petitioner is working on his post and the State Government as also the University has already released funds to the respondent No. 5 for payment of salary to the petitioner also.
(III) For a declaration that when after the Hon''ble Agrawal Commission recommendation and pursuant to the direction of the Hon''ble Supreme Court in the case of State of Bihar Versus Bihar Rajya M.S.E.S.K.K. Mahasangh if the service of the petitioner has been regularized by the University vide Notification contained in memo. No. 73 dated 17.01.2006 and the notification of the University still holds good, the respondent No. 5 has not authority to withheld the salary of the petitioner if the petitioner has been working on his post and State Government as also the Respondent University has already allowed sufficient fund to the respondent No. 5 for payment of salary of the petitioner."
Mr. S.B.K. Manglam, learned counsel appearing on behalf of the petitioner in both the writ applications, has submitted that once the issue, relating to absorption of service of the petitioner, was not only recommended by Justice S.C. Agrawal Commission but also acted upon by the University by issuance of a formal Notification of absorption, he could have been denied the benefit of such absorption which essentially includes payment of arrears and current salary. To that extent, he has also relied on the recommendation of the Agrawal Commission showing the petitioner to be entitled for absorption against a sanctioned post of Lecturer in the Department of Botany in the College. He has further extended his submission by assailing the action of the Principal of the College, who according to him, has been unnecessarily creating problem in the matter of payment of salary.
When writ application, CWJC No. 18204 of 2013, was heard on 23.10.2013 and this Court had found that the State of Bihar and its officials were not made party and thus opportunity was given to the learned counsel for the petitioner for impleading the officials of the State of Bihar as party to the writ application and two copies of the writ application were served on the learned counsel for the State. But today, when this case has been taken up, learned counsel for the State has submitted that he could not file the counter affidavit because copy of the supplementary affidavit was not served upon him. This Court fails to understand such callous/negligent attitude of the officials of the State of Bihar and in any event, the plea of non-service of supplementary affidavit could not have made any impact on this Court, had the respondent officials, State of Bihar, filed their counter affidavit to the averment made in the main writ application.
The position infact gets worse improved in absence of counter affidavit on behalf of the respondent University. There is no explanation whatsoever coming from the learned counsel for the University for not filing of the counter affidavit who has simply submitted that he has not been able to receive instruction in respect of either of the two writ applications filed by the petitioner.
Let it be noted that copy of the writ application, CWJC No. 20737 of 2012, was served upon the learned counsel for the University way back on 01.11.2012 whereas copy of the second writ application, CWJC No. 18204 of 2013, was served upon the learned counsel for the University on 09.09.2013. Thus, there was sufficient time for the officials of the University also to file their counter affidavit and if they have not done so, they cannot now be allowed to keep these writ applications pending.
In CWJC No. 18204 of 2013, the Principal of the College, after being issued notice, has filed his counter affidavit which goes to show that there was bona fide reason for the Principal of the College in refusing to make payment of salary to the petitioner inasmuch the letter of the University dated 04.10.2013, releasing fund for payment of arrears of salary of the teachers of the College for the period 01.01.2006 to 31.07.2010, bears a specific remarks as against the name of the petitioner that he would not be entitled for payment of any amount as his name was not included in the report of Agrawal Commission.
Whether the Principal of the College, therefore, could have made payment in presence of such order of the University or not is to be adjudicated only after taking into account the service history of the petitioner. The Principal in this regard has also taken a plea that since the petitioner is not working in the College and he is claiming to be continuing in the University headquarters as a Co-ordinator in National Services Scheme (NSS), will have to be examined in the backdrop of the issue of absorption of the petitioner.
It is not in doubt that the College, in question, in which the petitioner claims to be appointed as a Lecturer in the Department of Botany, is one of the 36 constituent college of the fourth phase of the year 1986. For almost two decades, no decision could be made for absorption of the teaching and non-teaching staffs working in the colleges and ultimately it was the Apex Court which had to constitute S.C. Agrawal Commission for making recommendation for absorption. There are unimpeachable documents to show that the name of the petitioner was recommended by the Agrawal Commission showing him to be the second teacher in the Department of Botany working against a sanctioned post. As a matter of fact, the working of the petitioner in the College is also not disputed inasmuch as even in the list of teachers, whose cases were screened by the Agrawal Commission, the name of the petitioner finds place against a recommended post. The report of Agrawal Commission was accepted by the Apex Court in the judgment of State of Bihar Versus Bihar Rajya M.S.E.S.K.K. Mahasangh; {2005 (1) PLJR (SC) 464}. The Apex Court, having approved the report of the Agrawal Commission in toto, had issued certain directions as with regard to issuance of formal letter of absorption in favour of the teachers whose names were recommended for absorption by the Agrawal Commission.
It is also not in doubt that in terms of the order of the Apex Court, the University had issued an order absorbing the service of the petitioner by Notification dated 17.01.2006 (Annexure-12). In view of this Notification, probably, there should have no any difficulty in making payment of salary to the petitioner either arrears of salary or current salary, but then whatever has been stated by the Principal would open a new window so far it relates to the service of the petitioner. The Principal has gone on record to say that there is only one sanctioned post of Lecturer in the Department of Botany in the College, which is being occupied by one Rabindra Nath Tripathi and as such the petitioner''s absorption against the sanctioned post was/is not proper.
Dr. Mayanand Jha, learned counsel appearing on behalf of the Principal of the College, has also submitted that as a matter of fact, this College was initially affiliated to Bihar Intermediate Council and the first post of Lecturer was sanctioned, neither in the Department of Botany nor in the Zoology, but in the Department of Biology. According to Mr. Jha, there is only one sanctioned post in the Department of Botany which is being occupied by Rabindra Nath Tripathi and therefore, the petitioner cannot claim to have been absorbed against a sanctioned post and that is why the University had given its remarks in the impugned order of petitioner''s name not found any place in the report of the Agrawal Commission becomes relevant. Mr. Manglam, learned counsel for the petitioner, however, has refuted this submission of Mr. Jha on the ground that the State Government''s order, contained in memo. No. 1147 dated 19th October 1985, would leave nothing for speculation that there were two sanctioned posts in the Department of Botany of the College and as such there will be no scope for any confusion with regard to the petitioner being appointed against a sanctioned post as also absorbed against that post.
In the considered opinion of this Court, had a counter affidavit been filed by the University and the State Government, the issue could have become easily decided inasmuch as if the Department of Zoology has got two sanctioned posts and so has the Department of Botany in the College, there could hardly be a scope for denying the payment of salary to the petitioner after issuance of the order of absorption in the manner indicated above. It is true that the Principal of the College is circumscribed by the direction of the University and when the University has restrained the Principal by not allowing payment on the ground, the name of the petitioner being not included in Agrawal Commission''s report, it is the State Government which alone can find out as to whether the absorption of the petitioner in the Department of Botany was permissible in terms of the finding recorded by the Agrawal Commission.
Let it be noted that the State Government till date has not issued any order for denying payment of salary to the petitioner; nor has questioned the finding of the Agrawal Commission in which the name of the petitioner finds place as a fit person for being absorbed in the University''s service against a sanctioned post vide Annexure-III-A (Annexure-A/5 of the counter affidavit) under the heading "Teachers who were working on the date of conversion arranged subject-wise" as also vide Annexure-IV-A (Annexure-22 of the supplementary affidavit) under the heading "Teaching staff who are eligible to be considered for absorption". This Court, however, would find that there is a material discrepancy in the distribution of sanctioned post in Annexure-III A and Annexure-IV-A inasmuch as the nature of post in Annexure-III A, against the name of the petitioner, has been shown to be sanctioned on 12.05.1986 whereas such sanctioned post in case of Rabindra Nath Tripathi has been show to be with effect from 04.12.1981. In the Department of Zoology, there is one sanctioned post dated 26.03.1983 against which Ravishankar Misra is shown to have been working and Ranjit Kumar Choudhary as also Gourikant Jha, the two teachers in the Department of Zoology, are shown to have been working against recommended post. As a matter of fact, the name of Ravishankar Misra, Ranjit Kumar Choudhary and Gourikant Jha also find place in Annexure-IV-A as the persons fit for absorption in service.
As noted above, the chart of sanctioned post, prepared by the Agrawal Commission of the Department of Botany, shows only one sanctioned post whereas in the Department of Zoology two sanctioned posts are being shown in the chart of Agrawal Commission vide Annexure-IA & IIA (Annexure-A/5 of the counter affidavit). Apart from the three sanctioned posts, two recommended posts were shown up to 30.04.1986 in the Department of Zoology and one sanctioned post in the Department of Botany was also placed before the Agrawal Commission.
Therefore, when there is already a direction in the case of Gourikant Jha vide order dated 06.09.2010 in CWJC No. 8636 of 2006 to settle his case of absorption, any order to the detriment of Gourikant Jha cannot be passed by this Court unless the State Government itself decides as with regard to availability of sanctioned post in the Department of Botany and Zoology as the entitlement of absorption of the petitioner vis-�-vis Gourikant Jha.
Considering all these aspects, this Court would direct the Principal Secretary of the Education Department to consider the grievance of the petitioner as also Gourikant Jha and take a firm decision with regard to availability of sanctioned post absorption of service of the petitioner vis-�-vis Gourikant Jha after taking into account the number of sanctioned post/recommended post as on 30.04.1986 in the Department of Botany and the Zoology. While doing so, the Principal Secretary must also keep in mind the recommendation of the Agrawal Commission.
It will be open for the petitioner to place any document which he would like to in support of his claim along with a copy of this order, but the Principal Secretary before taking any decision must give opportunity of hearing both, the petitioner as also Gourikant Jha.
This Court, however would make it clear that while remitting the matter back to the Principal Secretary primarily on account of not filing the counter affidavit explaining the availability of sanctioned/recommended post in the Department of Botany and Zoology in the College, the recommendation of the Agrawal Commission must be respected as the same has acquired finality.
If, however, any adverse decision is taken against the petitioner, the Principal Secretary of Education Department will be under obligation to give reasons. The Registrar of the University and the Principal of the College are also hereby directed to give the required assistance by way of documents and/or information relating to the teachers working the Department of Botany and Zoology including the petitioner and Gourikant Jha. Such decision by the Principal Secretary shall be taken as early as possible but not beyond the period of four months from the date of receipt of this order.
With the aforementioned observation and direction, both the writ applications are disposed of.
From the reading of the aforementioned judgment, it would be clear that this Court had noted with regard to the availability of the sanctioned post as approved by Justice S.C. Agrawal Commission showing only one sanctioned post of Lecturer in Botany. This Court had also noted that as against one post of Lecturer in the Department of Zoology, one Gauri Kant Jha was taking his claim and therefore, a direction was issued to the Principal Secretary of the Education Department to consider the grievance of the petitioner as also Gauri Kant Jha and take a final firm decision with regard to availability of sanctioned post for absorption of services of the petitioner vis-�-vis Gauri Kant Jha after taking into account a number of sanctioned post and/or recommended post as on 30.04.1986 in the Department of Botany and Zoology of K.B. Jha College, Katihar.
The petitioner, however, felt aggrieved with the aforesaid direction against and he had filed an appeal, LPA No. 374 of 2014, which, however, was withdrawn by him as is recorded by a division bench of this Court in the order dated 18.04.2014, which reads as follows:
"The appellant, claiming to be an Associate Professor in the Department of Botany, filed C.W.J.C. No. 20737 of 2012, seeking therein a direction to be issued to the respondent University including the Principal, K.B. Jha College, Katihar, for payment of arrears and current salary to the appellant.
The case of the appellant, in the writ petition, was founded on the ground that there are two sanctioned posts of Botany in K.B. Jha College, Katihar, and he had been appointed against the second sanctioned post. The claim of the appellant was disputed by the Principal of K.B. Jha College, Katihar, as well as by the respondent University.
As there was no counter affidavit filed on behalf of the State with respect to the number of posts, which stood sanctioned in the Department of Botany, a learned Single Judge of this Court, by order, dated 11.12.2013, remitted the matter to the Principal Secretary, Education Department, Government of Bihar, for taking a firm decision on the question as to whether a second post, in the Department of Botany stood, sanctioned or not. It was further observed that the Principal Secretary, Education Department, Government of Bihar, should take a decision as early as possible, but not beyond the period of four months from the date of receipt of the order.
Being aggrieved by the order of learned Single Judge, the appellant has preferred this appeal.
However, after some arguments, learned counsel for the appellant has sought to withdraw this appeal seeking an early disposal of the matter by the Principal Secretary, Education Department, after providing an opportunity of hearing to the appellant herein.
Having regard to the facts and circumstances of the present case, this appeal is, in the interest of justice, disposed of as withdrawn with direction to the Principal Secretary, Education Department, Government of Bihar, to dispose of the matter within a period of two months from the date of receipt of a copy of the order after providing opportunity of hearing to not only the appellant, but also all concerned.
It is, however, made clear that if the appellant feels aggrieved by the decision, which may be arrived at by the Principal Secretary, Education Department, Government of Bihar, or by the order, which may be passed by Principal Secretary, Education Department, Government of Bihar, the appellant shall remain at liberty to take recourse to such provisions of law as may be permissible."
After disposal of the LPA No. 374 of 2014, the Principal Secretary of the Department, by pointing out certain anomalies in the report of Justice S.C. Agrawal Commission, had decided the matter, as remitted by this Court, by his reasoned order dated 12.06.2014 and had held that the petitioner was not entitled for his absorption on the post of Lecturer in K.B. Jha College on account of there being only one sanctioned post in the Department of Botany. Though, the petitioner has not enclosed this reasoned order dated 12.06.2014 in this writ petition but the same is available in the record of CWJC No. 10820 of 2014, which reads as follows:
As would be evident in the aforesaid order, the Departmental Secretary had gone into the correctness of the claim of the petitioner of his working against the alleged sanctioned post, and had found that there was only one sanctioned post of Lecturer in the Department of Botany on which Dr. Ravindra Nath Tripathi having been appointed five years earlier than the petitioner on 04.12.1981, as against the claim of the petitioner to have been appointed on 12.05.1986, had already been absorbed. This order, in fact, also makes it clear that the petitioner was not entitled for his absorption in service of the University as per the recommendation of Justice S.C. Agrawal Commission inasmuch as his claim ought to have been figured either in List I or II and not in list-III and the Supreme Court had categorically held that the names included in the list-III would not be valid in the eye of law.
Let it be also kept in mind that this order dated 12.06.2014 of the Principal Secretary of Education Department was assailed by the petitioner in C.W.J.C. No. 10820 of 2014 wherein an interim order was passed on 25.07.2014 while issuing notice to the respondent No. 8, namely, Gauri Kant Jha. Order dated 25.07.2014 in C.W.J.C. No. 10820 of 2014 reads as follows:
"Issue notice to respondent No. 8 under registered cover with A/D as well as by ordinary process. Requisite etc. for the same shall be filed within one week, failing which this application, as against him, shall stand rejected without further reference to a Bench.
Put up after service report is received.
Pendency of this writ application shall not come in the way of petitioner in representing before the authority for payment of his salary."
C.W.J.C. No. 10820 of 2014, however, was brought again under the heading ''To be mentioned'' at the instance of the learned counsel for the petitioner stating that some portion of the order dated 25.07.2014 dictated in Court has been left out and this Court, on 05.08.2014, had passed an order modifying the order dated 25.07.2014 by recording as follows:
"This application has been listed under the heading "To be mentioned" at the instance of learned counsel for the petitioner. He submits that probably some portion of the order dated 25.07.2014 dictated in Court has been left out from being printed.
After cross-checking the shorthand notebook of the concerned Secretary, it appears that following portion was dictated in the order:--
"During the pendency of this application, petitioner will not be deprived of continuing in the College, if so advised. However, any payment to the petitioner shall depend on the result of this application."
Let the above reproduced order be treated as part of the order dated 25.07.2014."
The petitioner, thereafter, had moved this Court by filing a civil review application, being Civil Review No. 254 of 2014 against the aforesaid interim order dated 25.07.2014 and 05.08.2014, wherein it was stated as follows:
"2. That the petitioner has filed the instant writ petition challenging the order passed by the Respondent No. 2 holding that since in the report of the Hon''ble Justice (Retd.) Sri S.C. Agrawal Commission only one sanctioned post for the department of Botany is sanctioned, therefore, notwithstanding the availability of Government Notification regarding sanction of post for the department of Botany, from whom it is apparently clear that two posts were sanctioned for the department of Botany and only one post was sanctioned for the department of Zoology.
That, it is relevant to state that it is not that only in respect of the number of sanctioned posts in the department of Botany and Zoology, there exists a dispute rather since there were several defects in Hon''ble Justice (retd.) Sri S.C. Agrawal Commission Report, therefore, large number of impleadment applications were filed before the Hon''ble Supreme Court in the previous round of litigations.
That, since the impleadment applications were large in number which were not possible for their Lordships of the Hon''ble Supreme Court to short out individually, those intervener petitioners were relegated to the University for rectification of any such defects and the Universities were authorized to hear and pass appropriate order.
That, when the petitioner had shown all these documents regarding number of sanctioned posts for the department of Botany, notification under Section 4(14) of the Bihar Universities Act was issued by the University and the service of the petitioner was regularized against the second sanctioned post of Botany.
That, the petitioner was discharging his duties and he was getting his salary but when the present Principal joined the college, he started creating trouble in the smooth functioning of the writ petitioner. He had stopped payment of salary only after four years of his posting as Principal in the College.
That, the writ application was filed by the petitioner but because no counter affidavit was filed by the State, the petitioner was relegated to the Principal Secretary, who also did not pass any order after due consideration of the materials supplied by the petitioner along with his representation.
That, now recently under the order of the Hon''ble Supreme Court, one man Commission of Hon''ble Justice (Retd.) Sri S.B. Sinha has been again constituted and the said Commission is considering the defects crept in the Hon''ble Justice (retd.) Sri S.C. Agrawal Commission.
That, since the Commission is functioning for consideration of defects of Hon''ble Justice (retd.) Sri S.C. Agrawal Commission report, the petitioner is also intending to represent his case before Hon''ble Justice (Retd.) Sri S.B. Sinha Commission but the petitioner apprehends that one may take an objection that the petitioner is ventilating his grievance at two forums.
That, therefore, a prayer was made by the petitioner to hear the writ petition out of term for stay of the impugned order passed by the respondent No. 2 and for permission of this Hon''ble Court to approach Hon''ble Justice (Retd.) Sri S.B. Sinha Commission during the pendency of the writ petition.
That, the case was heard on 25.07.2014 under the headings for order when notices were issued to the respondent No. 8 during the pendency of the writ petition, the petitioner was directed not to be deprived of continuing in the College, if so advised. However, any payment to the petitioner shall depend upon the result of the application and it was also observed that pendency of this writ application shall not come in the way of petitioner to approach Hon''ble Justice (Retd.) Sri S.B. Sinha Commission for rectification of defects crept in Hon''ble Justice (retd.) Sri S.C. Agrawal Commission Report.
That, but when the petitioner had taken the web copy of the aforesaid order, surprisingly the order which was dictated in the open court was substantially not recorded in the order-sheet.
That, the case was, therefore, mentioned for its listing under the heading to be mentioned for correction of the order and it was listed under the heading to be mentioned on 05.08.2014. This Hon''ble Court assured that it would be checked up the short hand note book of the concerned Secretary and if it appears that if any portion of the order which was dictated on 25.07.2014 has not been incorporated in the order dated 25.07.2014, it would be corrected.
That, thereafter it appears that short hand note book of concerned Secretary was cross checked and when it was found that some portion of the order ahs not been printed in the order sheet dated 25.07.2014, this Hon''ble Court was pleased to incorporate that part of the order in the order dated 25.07.2014 vide order dated 05.08.2014.
That, the two orders passed by the Hon''ble Court on 25.07.2014 and 05.08.2014 are on record but if both are read together, the last paragraph of the order dated 25.07.2014 does not make a sense at all. In the order sheet dated 25.07.2014, it has been mentioned that pendency of this writ application, shall not come in the way of the petitioner in representing before the Authorities for payment of salary but if that part of the observation would be looked at with the order dated 05.08.2014 in which some portion of the order dated 25.07.2014 was inadvertently not included, it would be evidently clear that in the order dated 25.07.2014 this Hon''ble Court had categorically said that any payment to the petitioner shall depend upon the result of this writ application.
That, infact the last paragraph of the order dated 25.07.2014 was not correctly recorded by the Secretary. In fact, by the last part of the order, this Hon''ble Court was pleased to observe that pendency of this writ application shall not come in the way of the petitioner to approach Hon''ble Justice (Retd.) Sri S.B. Sinha Commission for rectification of defects crept in Hon''ble Justice (Retd.) Sri S.C. Agrawal Commission.
That, the petitioner has serious apprehension that if he would approach Hon''ble Justice (Retd.) Sri S.B. Sinha Commission for rectification of defects crept in Hon''ble Justice (Retd.) Sri S.C. Agrawal Commission Report for which the petitioner has more than sufficient documents an objection can be raised by the counsel of the State that during the pendency of this writ application, the petitioner cannot avail his remedies before Hon''ble Justice (Retd.) Sri S.B. Sinha Commission and if the petitioner withdrawn this writ application he may be in difficulty because Hon''ble Justice (Retd.) Sri S.B. Sinha Commission cannot set aside the order passed by the Principal Secretary on remand from this Hon''ble Court.
That, because of this inadvertence mistake, the petitioner would suffer in his life and, therefore, it is expedient for the petitioner to seek review of a part of the order dated 25.07.2014 and seek leave of this Hon''ble Court to approach Hon''ble Justice (Retd.) Sri S.B. Sinha Commission for rectification of defects and for the future observation that the pendency of the writ application would not come in his way.
(underlining for emphasis)
It, thus, becomes clear that when the petitioner was not successful in either getting the order of the Principal Secretary dated 12.06.2014 set aside or stayed, he himself had made a prayer that his case should be referred to Justice S.B. Sinha Commission and on his such prayer made in Civil Review No. 254 of 2014, an order was passed on 09.09.2014, which reads as follows:
"As prayed for, let defects, as pointed out by the office, be removed in course of the day.
After removal of defects, this review application shall stand disposed of with an observation that, during the pendency of the main writ application, petitioner will be at liberty to move Justice Mr. S.B. Sinha Commission for redressal of his grievances as raised in the writ application."
What really now shocks this Court is that after the prayer of the petitioner for moving Justice S.B. Sinha Commission had been allowed, the order passed by the Departmental Secretary on 12.06.2014 was sought to be reviewed by the Principal Secretary on the ground that such order was passed without hearing the petitioner and, therefore, that order dated 12.06.2014 was being recalled and was being substituted by an order dated 10.11.2014 allowing the petitioner to move Justice S.B. Sinha Commission constituted by the Apex Court for redressal of the grievance of teaching and non-teaching employees of 40 constituted colleges in the matter of their absorption and consequently payment of salary. Such order of the Principal Secretary dated 10.11.2014 reads as follows:--
Pursuant to the aforementioned order of the Principal Secretary of the Education Department, when C.W.J.C. No. 10820 of 2014 had been taken up wherein this Court also, while holding C.W.J.C. No. 10820 of 2014 to have become infructuous on account of order passed by the Principal Secretary on 10.11.2014, made it clear that final decision taken by Justice S.B. Sinha Commission shall govern the fate of the petitioner. The order dated 13.11.2014 in C.W.J.C. No. 10820 of 2014 reads as follows:
"In view of Memo. No. 1494 dated 10.11.2014 issued by the Principal Secretary, Education Department, Government of Bihar, the present writ application has become infructuous as of now in the context of contents and the decision taken in the said notification. In view of the above, the petitioner would be treated as if no decision has been taken against him contrary to his interest, which was subject matter of challenge in the writ application, till final decision is rendered by Justice S.B. Sinha Commission."
It appears that the petitioner thereafter had moved Justice S.B. Sinha Commission and his claim was the tune of Rs. 2,98,409/-. It, however, appears
"BEFORE JUSTICE S.B. SINHA (RETD.) COMMISSION NEW DELHI
The Claimant has approached this commission purportedly for rectification of an error which has crept in the report of Justice Agrawal Commission while recording the number of sanctioned posts in the Department of Botany in the aforementioned college.
The Claimant was appointed on 12.06.1986, that is, after the cut off date declared by the State of Bihar and which has also been noticed by Justice Agrawal Commission at page 360 of its report.
Mr. Saket Singh, learned counsel appearing on behalf of the Claimant, would contend that the Claimant''s appointment having been recommended by the Bihar College Service Commission and he having been appointed against the second sanctioned post in the Department of Botany, is entitled to a direction upon the Respondent to absorb him in the services of the University.
The Claimant on the selfsame plea filed a Writ Petition before the Hon''ble Patna High Court which was marked as CWJC No. 30737 of 2012.
By a judgment and order dated 11.12.2013, the High Court directed as under:
"Considering all these aspects, this Court would direct the Principal Secretary of the Education Department to consider the grievance of the petitioner as also Gourikant Jha and take a firm decision with regard to availability of sanctioned post absorption of service of the petitioner vis-�-vis Gourikant Jha after taking into account the number of sanctioned post/recommended post as on 30.04.1986 in the Department of Botany and the Zoology. While doing so, the Principal Secretary must also keep in mind the recommendation of the Agrawal Commission.
It will be open for the petitioner to place any document which he would like to in support of his claim along with a copy of this order, but the Principal Secretary before taking any decision must give opportunity of hearing both, the petitioner as also Gourikant Jha.
This Court however would make it clear that while remitting the matter back to the Principal Secretary primarily on account of not filing the counter affidavit explaining the availability of sanctioned/recommended post in the Department of Botany and Zoology in the College, the recommendation of the Agrawal Commission must be respected as the same has acquired finality."
Pursuant to or in furtherance of the said direction, it is now accepted that the Principal Secretary of the Education Department, Bihar, directed that the Claimant may be paid his salary till this Claim Petition is determined by this Commission.
It appears that the Claimant filed a Review Application, and by an order dated 09.09.2014 the following directions were issued:
"After removal of defects, this review application shall stand disposed of with an observation that, during the pendency of the main writ application, petitioner will be at liberty to move Justice S.B. Sinha Commission for redressal of his grievances as raised in the writ application."
Mr. Hansaria, learned senior counsel appearing on behalf of the State of Bihar, submitted that with regard to the fact that the Claimant has been appointed on 12.06.1986, that is after the cut off date, the question as to whether he had validly been appointed against the second sanctioned post or not, need not to be determined.
Attention of this Commission has, however, been drawn to paragraph of the affidavit filed on behalf of the University in respect of SNSRKS College and K.B. Jha College, stating that the same having been made constituent unit of the University on the direction of the State Government after 30.04.1986, the service conditions of the staff cannot be treated at par with the service conditions of the teaching and non-teaching staff of four other colleges which had been taken over before 30.04.1986.
Mr. Atul Jha, learned counsel appearing on behalf of the University, has drawn the attention of this Commission to page 375 being Annexure IIIA and at page 378 containing Annexure IVA of the report of Justice Agrawal Commission in respect of the said College, to contend that from a perusal thereof it would appear that a large number of the members of the teaching and non-teaching staff had infact been appointed after the cut-off date i.e. 30.04.1986.
It was submitted that not only a large number of employees have been absorbed in the services of the University, but the State of Bihar also directed payment of their salaries, and in that view of the matter this Commission should hold that such appointments made in the two colleges, even after the cut-off date, are valid.
This Commission is, however, of the opinion that having regard to its Terms of Reference outlined by the Hon''ble Supreme Court of India, in terms of its order dated 22.01.2013; it is not possible for this Commission to determine the questions raised by the learned counsel for the University.
At page 360 of the report of Justice Agrawal Commission, the cut-off date in respect of the said college has been stated to be 30.04.1986.
The Hon''ble Supreme Court of India also, in paragraphs 18, 20 & 21 of the judgment in the case of Mahasangh, recorded its agreement with the findings of Justice Agrawal Commission that only such members of the staff are liable to be considered for absorption who were working against additional posts for which proposals has been received by the State from the University before the cut-off date.
It was furthermore observed that services of the employees working against posts for which proposals had not reached the State were liable to be rejected.
From the said judgment it is evident that as in the matter of absorption of the members of the staff was required to be considered from the point of view as to who had been working before the cut-off date, which clearly implies that those who had been appointed after the cut-off date cannot legitimately claim any right to be absorbed in the services of the University.
Mr. Saket Singh, however, would urge that this Commission may at least determine the question as to the number of posts available for absorption of the teachers in the Department of Botany.
Keeping in view the fact that the Claim Petition of the Claimant is not maintainable before this Commission, and furthermore having regard to the fact that the Claimant has the right to approach in appropriate forum, this Commission is of the opinion that it need not enter into the said question which has become academic in nature.
The Claim Petition is, dismissed with aforementioned observations.
New Delhi
(S.B. Sinha)"
(underlining for emphasis)
From reading of the order passed by Justice S.B. Sinha Commission, which surprisingly has not been assailed in this writ petition as would be more apparent from the relevant portion of prayer in this writ application, it is more than clear that the appointment of the petitioner was made on 12.06.1986 whereas the cut off date, as approved by the Apex Court was for recommended post (additional post) for the working teachers, was only 30.04.1986. Thus, Justice S.B. Sinha Commission had gone to hold that in view of the appointment of the petitioner on 12.06.1986 i.e. after cut off date, there would be no question of examining the claim of the petitioner by the Commission inasmuch as he had stood completely covered by the judgment of the Apex Court in the case of Mahasangh (supra) wherein it was held that only such members or staffs are liable to be considered for absorption who were working against additional post for which proposal has been received by the State Government from the University before the cut off i.e. 30.04.1986.
In fact, Justice S.B. Sinha Commission had also gone to hold that in view of the judgment of the Apex Court in the case of Mahasangh (supra), the matter of absorption of any teaching staff was to be required verified from the point of view as to who had been working before the cut off date, which clearly emphasized that those who had been appointed after the cut of date i.e. 30.04.1986 cannot allegedly claim any right to be absorbed in service of the University. As a matter of fact, the observations and findings of Justice S.B. Sinha Commission is still the fate of the petitioner.
Let it be noted that the petitioner himself wanted to go to Justice S.B. Sinha Commission, as is apparent from the underlined portion of his review application filed before this Court and, therefore, once an order was passed at the behest of the petitioner for referring the matter to Justice S.B. Sinha Commission in Civil Review No. 254 of 2014 and consequently even the Principal Secretary of the Education Department had reviewed his order in the light of the observation made by this Court for referring the matter to Justice S.B. Sinha Commission, the petitioner cannot now turn around and overcome the finding of Justice S.B. Sinha Commission inasmuch as that order between him and the University having become final on contest before the Justice S.B. Sinha Commission and also not assailed by the petitioner in this writ application, will definitely make the University entitled to hold that the petitioner was not entitled for payment of salary because of his absorption itself being not possible in terms of the judgment of the Apex Court in the case of Mahasangh (supra).
This Court does not, therefore, find any error in the impugned order dated 29.05.2015 passed by the University disallowing the claim of payment of salary of the petitioner.
The long and short, therefore, of the case of the petitioner is that he was appointed in K.B. Jha College, Katihar on 12.06.1988 i.e. beyond the cut off date of 30.04.1986 as approved by Justice S.C. Agrawal Commission and also the Apex Court in the case of Mahasangh (supra). The absorption of only such of the teaching and non-teaching employees of the 36 constituent colleges was, in fact, made whose appointments were made prior to 30.04.1986 either on the sanctioned post or in the recommended post.
As noted above, there was only one sanctioned post in the subject of Botany, as is apparent from Annexure-7 to the writ petition. As a matter of fact, Justice S.C. Agrawal Commission having given the date-wise number of sanctioned post, the petitioner cannot be allowed to read into the order dated 19.10.1985 to be serving on the second post when the Principal Secretary of the Department also in his orders has found existence of only one sanctioned post of Lecturer in the department of Botany in K.B. Jha College, Katihar. This aspect of the matter has been also examined at length by Justice S.C. Agrawal Commission and again by Justice S.B. Sinha Commission for coming to the conclusion that there was only one sanctioned post of Lecturer of Botany in K.B. Jha College, Katihar against which Ravindra Nath Tripathi was absorbed and working. Though the petitioner is harping about the sanction of second post by an order dated 19.10.1985, but he has miserably failed to produce the order of sanctioning the first post in the Department of Botany in K.B. Jha College, Katihar. It is here that the findings of Justice S.C. Agrawal Commission will still prevail over the petitioner''s case inasmuch as in the report of Justice S.C. Agrawal Commission, there is only one sanctioned post in the Department of Botany in the K.B. Jha College, Katihar is in the date of 19.10.1985.
It is this factual premises, which will distinguish the case of the petitioner. As a matter of fact, if the terms and conditions of the take over 40 colleges (36 of which now remain in the State of Bihar) dated 19.08.1986 is taken into account, it will be absolutely clear that the cut off date of 30.04.1986 was evolved for examining the claim of each and every person whose services were to be absorbed after making of the college constituent. The petitioner admittedly, as on 30.04.1986, was not even appointed in the K.B. Jha College, Katihar but his such appointment made by the Governing Body on 12.6.1986 much after 30.04.1986, will, therefore, not qualify for his absorption in terms of the report of Justice S.C. Agrawal Commission and its affirmance by the Apex Court in the case of Mahasangh (supra).
In view of the aforesaid discussions, as the services of the petitioner cannot be absorbed, there would be also no question of payment of salary by the State of Bihar to the petitioner inasmuch as the University of its own cannot make payment of salary unless funds for the same is released by the State Government. It is here that the finding of Justice S.B. Sinha Commission, arrived at the behest of the petitioner, in view of his prayer made in Civil Review No. 254 of 2014 followed by the order of the Principal Secretary dated 10.11.2014, will bind him inasmuch as this Court, while disposing of C.W.J.C. No. 10820 of 2014 by an order dated 13.11.2014, had also made it clear that the final decision rendered by Justice S.B. Sinha Commission will govern the parties. The petitioner, who has been time and again moving this Court for every drop of hat, therefore, has to thank his own efforts and stars for obtaining an order which now would bind him. Thus, the claim of the petitioner of being a teacher in the Department of Botany in K.B. Jha College, Katihar and consequential payment of his salary must come to an end.
For the reasons indicated above, this writ application must fail and is accordingly dismissed.