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Judgment
S.N. Jha, J.—The petitioner seeks direction upon the L.N. Mithila University to pay him salary from 23-7-2001. He is a Reader in the Department of Commerce in LNJ College, Jhanjharpur, under L.N. Mithila University. While in service of the University he contested the election for the office of Mukhiya from Mahrail Gram Panchayat within Andhrathadhi Block of Madhubani District and was declared elected on 15-5-2001. He took oath of the office on 23-7-2001 and has been holding the office of Mukhiya since then.
The case of the petitioner is that he contested the election after taking permission from the University. After election he has been performing the duties of two posts without any difficulty. If for any unavoidable reason he is not able to perform the duties of Mukhiya, the Up-Mukhiya can function in his absence. Thus petitioner''s continuance as Mukhiya is not likely to cause any obstruction in discharge of his duties as Reader, and as he has been actually performing the duties of post of Reader, he is entitled to salary. It was stated that the post of Mukhiya is not a salaried post.
On behalf of the University it was submitted that the petitioner was no doubt given permission to contest the Panchayat election but the permission was on express condition that he will be deemed to be on leave without pay. Having obtained permission on that condition, he cannot claim salary. In other words, the petitioner cannot approbate and reprobate. Reliance was placed on Naga Bhai v. B. Shama Rao, AIR 1956 SC 539. It was submitted that the fact that office of Mukhiya does not carry salary is not relevant, for holder of office of Mukhiya is entitled to certain perks which go by the office. In any view having opted for the office of Mukhiya in his own volition, the fact that the post is not a salaried post is totally inconsequential. As a matter of fact, it was submitted, in view of the provisions of Section 139(1)(d) of the Bihar Panchayat Raj Act, 1993 as amended by Bihar Panchayat Raj (Amendment) Act (Bihar Act 14 of 1995) the petitioner was not qualified to contest the election for the post of Mukhiya.
In my opinion, it is not necessary, and in any case, proper to consider the latter limb of the respondents'' objection, for, expression of any opinion on the point may have a bearing on petitioner''s election as Mukhiya, Section 139 of the Act contains disqualification clause. It lays down that "notwithstanding anything contained in the Act a person shall be disqualified for election or after election for holding the post of Mukhiya" etc. One of the items of disqualification, were Clause (d) is if a person is in service of any such institution receiving aids from Central or State Government or any local authority. The Act provides machinery to decide dispute relating to disqualification of candidate. Expression of opinion would have a bearing on the petitioner''s continuance as Mukhiya and it would, therefore, not be proper to go into that aspect collaterally in another proceeding. The petitioner has approached this Court for payment of salary and the only question for consideration is whether he is entitled to salary during his tenure as Mukhiya.
I have no difficulty in answering the question in the negative in view of the express clause contained in the office order dated 23-2-2001 by which permission was granted to the petitioner to contest the Panchayat Election. The said office order may usefully be quoted as under :
"The following teachers of L.N.J. College, Jhanjharpur are given Administrative permission to contest the ensuring Panchayat Election District Board Election 2001 provided that they will be deemed to be on leave without pay u/s 68(2) of the Bihar State Universities Act, 1976 amended up-to-date from the date of taking oath in case they are elected. They will have to give undertaking to their Principal concerned to this effect with a copy to the Registrar.
(1) Sri Gita Nath Jha, Reader, Deptt. of Commerce, LN.J. College, Jhanjharpur.
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A bare glance of the above office order leaves no room for doubt that the permission to contest the election was conditional. Clearly, the petitioner contested the election with full awareness that in the event of being elected, he would be on deemed leave without pay.
The petitioner cannot question the validity of the office order. In Naga Bhai v. B. Shama Rao, (supra) the Apex Court observed that the maxim ''approbate and reprobate'' means application of doctrine of election. Where a party takes advantage of an order it is not open to him to say that it is invalid and ask to set it aside or to be stayed nor he can be allowed to go behind the order. Undisputedly, permission was granted on the own request of the petitioner and in terms of Section 68(2) of the Bihar State Universities Act. Section 68(2) runs as under:
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It was submitted on behalf of the petitioner that permission u/s 68(2) of the Universities is required only where holding an elective (or non-elective) post is likely to cause obstruction in teaching or other duties. The College is only 3 kms. away from the Panchayat and therefore, there is no likelihood of any such obstruction.
It is manifest that any teacher or non-teaching employee of the University/College/ Institute holding elective or non-elective post or accepting membership of any institution is required to take permission from the University/College/Institute and leave without pay for the fixed period. The petitioner having applied for permission which was granted in accordance with Section 68(2) of the Act, he cannot turn around and claim salary contrary to the terms of the permission order. He would not have contested the election without risk of disciplinary action if he had not taken permission. Permission was granted on the condition that he would be on deemed leave without salary a clause consistent with Section 68(2) of the Universities Act, his claim for salary is not maintainable.
In the result, I do not find any merit in this writ petition which is accordingly dismissed.