Full Judgment Text
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CASE NO.:
Appeal (civil) 6098 of 1997
PETITIONER:
State of Bihar & others
RESPONDENT:
Bihar Rajya M.S.E.S.K.K.M.& others
DATE OF JUDGMENT: 12/10/2004
BENCH:
Y. K. Sabharwal & D. M. Dharmadhikari
JUDGMENT:
J U D G M E N T
With
Special Leave Petition (C) No. 18168 of 2002
Contempt Petition (C) Nos. 5, 53, 54, 83, 353, 363, 549, 82 of 2002
and 343, 377, 441 of 2004 in CA No. 6098 of 1997
With
I.A. Nos. 102-103
I.A. Nos. 105-108, 110-113, 119, 143, 146, 150, 154, 157, 158, 159,
173, 178, 183, 188-189, 195-198, 201, 203-204, 212-215, 224, 234,
236-237, 244, 247, 250, 273, 276, 278-280, 286, 293, 295, 299, 303,
318, 320, 329, 332 [Applications for impleadment].
I.A. Nos. 114, 115, 120, 121-124, 145, 151, 160, 161, 164, 174, 177,
179, 185-187, 190-192, 199, 202, 208, 210, 211, 216, 217, 219, 221,
222-223, 225, 226-227, 229, 231, 233, 235, 238, 241-242, 243, 246,
249, 252-255, 260, 281, 288-289, 290-291, 294, 297-298, 302, 305-
307, 311-317, 322-328, 343, 346, 347-349, 351, 354-355, 363, 364,
367-371, 375, 377 [Applications for permission to file
objections].
I.A. Nos. 116-118, 207, 262, 282, 345, 365 [Applications for
intervention]
I.A. Nos. 125-142, 144, 147, 149, 152, 155, 156, 162-163, 165, 167-
168, 170-172, 175, 179-182, 184, 193, 205, 239, 256, 258, 264-272,
277, 284-285, 292, 201, 308-309, 333, 360-361, 373, 374
[Application for directions)].
I.A. No. 353 [Application for change of name of Advocate-on-
Record]
I.A. No. 304 [For substitution]
I.A. No. 275 [For modification]
I.A. No. 331 [For condonation of delay]
I.A. Nos. 357-358 [Applications for permission to file Addl.
Documents and exemption]
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I.A. Nos. 148, 153, 166, 169, 176, 194, 200, 206, 209, 218, 220, 228,
230, 232, 240, 245, 248, 251, 257, 259, 261, 263, 274, 283, 287,
289A, 296, 300 [Application for exemption].
Dharmadhikari J.
In this appeal, preferred by the State of Bihar against the
judgment dated 31.1.1997 of the High Court of Patna, the dispute is
concerning the absorption of about 4,000 employees working on
teaching and non-teaching posts in 40 colleges affiliated to various
universities which were taken over as constituent colleges in
accordance with the provisions of Bihar Universities Act, 1976. The
aforementioned affiliated colleges were made constituent colleges of
respective universities under the Resolution of the Government of
Bihar taken in the year 1986 and implemented by the respective
universities on entering into formal agreements with the affiliated
colleges in the year 1987.
This appeal is being decided along with the connected special
leave petition and contempt petitions. Our decision in the present
main appeal, which we take as a lead case, would dispose of all other
connected cases and interlocutory applications.
It is not necessary for us to go into all the facts and details as
we would be confining our decision to the legal issues raised before us.
The necessary factual background for the purpose of
understanding the legal issues raised before this court in these cases is
as under:-
The State of Bihar took a decision to convert affiliated colleges of
different universities into constituent colleges of concerned universities
in a phased manner.
The words ’Affiliated college’ and ’constituent college’ are defined
in section 2(c) and 2(i) of the Bihar State Universities Act, 1976 [ for
short ’the Act’]. Every institution recognized and receiving privileges of
the universities in accordance with provisions of the Act and
universities’ statutes is called ’affiliated college’. ’Constituent college’
means a teaching institution maintained and controlled by the
university itself.
By letter dated 19.8.1986, the State of Bihar conveyed its
decision to all the Vice-Chancellor of various universities in the State of
converting 36 affiliated colleges mentioned in the appended list as
constituent colleges. Three other colleges were similarly decided to be
converted as constituent colleges under decision conveyed by letter
dated 03.7.1987. One minority educational institution was also
decided to be converted as constituent college. In all thus 40 affiliated
colleges were decided to be converted into constituent colleges. In the
decision conveyed by the State, the universities were instructed in
accordance with the provisions of Section 14 of the Act to pass a
formal resolution for taking over the assets and liabilities of the
various affiliated colleges falling within the respective universities and
enter into formal agreements with their governing bodies for the
purpose of converting them into constituent colleges.
In the same decision of the State Government, the universities
were directed to obtain from each of the affiliated colleges information
regarding sanctioned teaching and non-teaching posts existing on the
date of taking over of the colleges as constituent colleges and also
ascertain information with regard to proposals for creation of
additional posts in the affiliated colleges which were received from the
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universities by 30.4.1986 and were pending with the government. The
list of teachers appointed against such additional posts pending for
approval of the State Government were also directed to be separately
prepared for the purpose of consequential action on the part of the
State Government.
Consequent upon the above decision of the government with
instructions to the universities to take various steps for identifying the
number of sanctioned posts, the proposals for additional posts
received by the universities and pending with the government for
approval, a further decision was conveyed by the State Government by
letter dated 12.6.1987. The aforesaid subsequent decision has
created the present controversy on the claims of various categories of
teachers and non-teaching employees for absorption in the services of
their respective converted constituent colleges. By the subsequent
decision contained in letter dated 12.6.1987, it was directed that in
addition to the proposal for creation of additional posts pending with
State Government, the proposals for approval of posts for additional
subjects in the colleges which had been received from the universities
up to 30.4.1986 and pending with the government, be also ascertained
and necessary information in the prescribed proforma be sent to the
government to consider creation of posts, granting of affiliation to
additional subjects and absorption of teachers who were appointed
against such posts. In the resolution of the government, each
university was directed to constitute a three-member committee to
ascertain existing sanctioned teaching and non-teaching posts,
proposals pending for additional posts, proposals pending for
posts for additional subjects and list of various teachers who were
working against sanctioned and non-sanctioned posts before the cut-
off date.
In implementation of the resolution of the government to
convert the 40 affiliated colleges into constituent colleges formal
resolutions were passed by the governing bodies of the affiliated
colleges. The three-member committees constituted by the universities
completed their investigation for submitting necessary information in
the prescribed proforma showing separately names of teachers and
non-teaching employees working against sanctioned posts and those
working against posts the creation of which was recommended by the
University for sanction of the State Government.
On 17.1.1987, the Government of Bihar constituted a separate
committee headed by Chairman of Inter-Universities Board to examine
the proposals received before the cut off date i.e. 30.4.1986 for
creation of posts of teachers and non-teaching staff in affiliated
colleges which were converted into constituent colleges. On the report
of the said Committee which were subsequently reconstituted on
01.2.1988, the State Government passed an order to absorb
employees working against teaching and non-teaching posts but only
on provisional basis because there were disputes with regard to the
claims for absorption of certain members of the staff in various
colleges.
The State Government later constituted eight-member
committee and thereafter a five-member committee to go into the
question of absorption of members of the staff in the converted
constituent colleges and ascertain number of posts duly created before
the cut-off date and which were pending with the Government for
approval or sanction.
On the recommendations of the above mentioned two
committees, on 18.12.1989, the Government of Bihar took a formal
decision to provisionally absorb teachers against sanctioned posts and
posts which were recommended for sanction by some of the
universities.
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It seems that with the change of elected government there was
rethinking on the decision of the earlier government to absorb
members of the staff working against additional posts for the creation
of which sanction was awaited. Large number of employees, it was
reported, got surreptitious entry into the services of the erstwhile
affiliated colleges in connivance with the members of governing bodies
of the said colleges and tried to take advantage of conversion of those
colleges into constituent colleges. A large number of complaints of
manipulations and fabrication of records in affiliated colleges were
received by the Government which became a subject of hot debate in
Legislative Assembly and public.
The State Government took a decision to set up a vigilance
enquiry into the alleged malpractices adopted by the various affiliated
colleges in inducting employees, who had not been legally appointed in
various affiliated colleges prior to cut-off date fixed in the resolution of
the Government to take over the colleges. On the setting up of the
vigilance enquiry, apprehensions arose of large scale termination and
dispensation with the services of employees of various categories of
employees working on teaching and non-teaching posts in erstwhile
affiliated colleges. The association of the employees representing both
holders of teaching and non-teaching posts approached the High
Court in writ petition leading to the passing of the impugned judgment
and the present appeal. In the writ petitions, the association of the
employees of the affiliated colleges claimed a writ of prohibition
restraining State and the universities from dispensing with or
terminating the appointments of nearly four thousand employees
working in different colleges under universities. They also sought a
further relief that their services be protected and not interferred with.
The Division Bench of the High Court after examining the record
of the case, the contents of proceedings of the various committees
and construing the provisions of the Act, allowed the writ petitions of
the employees’ association. The High Court made the following
observations and issued following directions in the concluding part of
its judgment:-
"In that view of the matter, the controversies have not reached
a finality as contemplated under section 4(14) of the Act. This
Court, therefore, directs the concerned universities to take steps
under sub-section (14) of section 4 of the said Act in respect of
regularization of the services of the teachers of the colleges
which have become constituent colleges of the different
universities in the fourth phase.
Even though, the universities have been made parties including
the chancellors of the said universities, and they have been
served with notice, but nobody appeared on behalf of the
universities or on behalf of the chancellors nor any affidavit has
been filed.
In that view of the matter, this Court directs the universities
who are parties of this proceeding to take steps in accordance
with the communication of the State Government which is at
annexure-5 of the writ application in the light of the observation
made in this judgment and in accordance with the provisions of
section 4(14) of the said Act within a period of four months
from the date of receipt/production of a copy of this order.
It is, however, made clear that till such steps are taken by the
respective universities, the status quo as existing on today will
continue. With the aforesaid direction this writ petition is
allowed to the extent indicated above. No order as to costs.
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Aggrieved by the judgment and the directions made by the High
Court, the State of Bihar has preferred this appeal. From the record of
the proceedings in this appeal, it seems this Court thought that
before the universities are directed to implement the order of the High
Court and to complete the process of absorption of employees of
various categories in the constituent colleges, an independent enquiry
is required to be made through a high power Commission so as to
identify alleged bogus appointees in various affiliated colleges who
sneaked into the services of the erstwhile affiliated colleges in
connivance with the authorities of the various Colleges and Universities
of the State. With the above view, after adding new State of
Jharkhand as a separate party (as a result of bifurcation of State of
Bihar into two States), this Court by order dated 12.10.2001 appointed
Shri Justice S. C. Agrawal, retired Judge of this Court as one member
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 enquiry, by the one-member
Commission of the hon’ble retired Judge read as under :-
"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
pp206-207 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(14) of the Bihar State
University Act, 1976 and other orders of government?"
The one-member Commission completed within two years the
stupendous task of examining the records, hearing various authorities
of the State and the colleges as also individual employees. After
seeking extension of period for completing the enquiry, the
Commission has submitted a detailed report on 19.12.2003. On
submission of the report of the enquiry commission, parties were
granted time to submit their written objections, if any. Objections have
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also been filed before this Court in large number. The Commission has
purposely, as was expected of it, avoided to express any opinion on
the legal issues involved and which are pending decision before this
Court. Some opinions have been expressed by the Commission on the
provisions of the Act with the limited purpose of providing necessary
information to this Court, for coming to a right and just conclusion.
In answer to ’terms of reference’ no. 1, enquiry commission has
taken different cut-off dates for different affiliated colleges with
reference to the dates on which decision was taken to convert them
into constituent colleges. Thus taking 30.4.1986 or 31.3.1987 or
01.1.1987 as dates applicable to the particular colleges, the
Commission has identified the number of sanctioned posts and the
members of the staff working against each of them. It has given
separate report for one minority institution in which there was no
indication of cut-off date. To answer term No. 2, the commission has
divided it into two parts and answered each separately. Identification
has been done in respect of each college which had sent proposals
with regard to creation of additional posts and which have been
submitted by concerned universities to the education
department of the State before the cut-off date.
Separate identification has been done by the Commission
regarding proposals for creation of additional posts submitted by
each college before the cut-off date and which were pending
with the concerned universities.
On the basis of the decision of the government conveyed from
time to time by various letters to the universities, the Commission has
come to a conclusion that the decision taken was to absorb services of
members of teaching and non-teaching staff of converted constituent
colleges only against additional posts for which proposals had
been received from the universities by the State Government
by the cut-off date and were pending for consideration with the
State Government. In the opinion of the Commission, there is no
decision of the Government to consider for absorption the staff
working against such posts, the proposal for creation of which
had been submitted by the governing bodies to the universities
before the cut-off date.
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, 30.6.1986 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 to the State Government before cut off date, are liable to
be rejected.
With regard to term of reference no. 3, requiring identification of
teaching and non-teaching members of the staff, who have not been
appointed through selection made by College Service Commission/
Universities Service Commission and enquiry about their possessing or
not possessing basic qualifications prescribed for the posts in
accordance with the Act and the Statutes, the conclusions of the
commission are that the revised list submitted by the screening
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committee dated 30-1-1987 containing names of employees
recommended for absorption is not worthy of acceptance.
In the course of its enquiry, the commission found that there
were interpolation and tampering with records including the
proceedings of governing bodies of certain colleges. The screening
committees constituted by the universities under the resolution of the
government have gone into that aspect and have prepared a list of
members of the staff who deserved to be absorbed. According to the
opinion of the Commission after the screening committee had
completed its task, the screening committee, without assigning any
reasons, could not have submitted revised list to include some more
names or exclude others. This inclusion and exclusion can be an
omission or error in original report or it was done on other extraneous
consideration. In the opinion of the commission, the last mentioned
eventuality is not ruled out. It is in these circumstances that the
commission has recommended that revised list of the screening
committee dated 30.1.1987, deserves no consideration.
After reading the report of the commission and considering the
objections raised to it by the various parties before us, in our opinion
the report of the Commission proposing rejection of the revised list
submitted by the screening committee on 30.1.1987, which show
inclusion or exclusion of certain names from its original list, deserves
to be accepted.
So far as the qualifications of the various categories of holders of
teaching and non-teaching posts are concerned, the commission has
gone into contents of the various statutes prescribing the qualifications
for different teaching posts pursuant to the recommendations of
University Grants Commission which were adopted by the universities
with implementation of revised scales of pay.
In our opinion, decision on absorption of the existing teaching
and non-teaching staff of the affiliated colleges, which are taken over
as constituent colleges, is within exclusive jurisdiction of the
universities concerned. Decision in individual cases, with due regard
to the qualification of each employee and corresponding statute
applicable at the relevant time prescribing qualification, if any, for the
teaching and non-teaching post, is required to be taken by the
university based on the findings in the report of Justice Agrawal
Commission and in the light of the legal position explained in this
judgment.
In answer to the terms of reference no. 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 between universities and the concerned
colleges, the commission after a thorough enquiry and probe into
records of the various colleges have given three separate lists \026 (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 upto 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.
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
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were sent by the universities to the State upto the cut-off date. So far
as list no. (iii) is concerned, it has been seriously objected to 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.
The Division Bench of the High Court construed the relevant
provisions of the Act and accepted the contentions advanced on behalf
of the employees that in accordance with section 4(I)(14), the
concerned universities themselves, in respect of colleges within their
jurisdiction, are empowered to take a decision on the disputes
regarding the validity of the appointments in the affiliated colleges and
the absorption of those appointees in the constituent colleges. The
High Court was of the opinion that in view of the non-obstante clause
contained in proviso in section 4(I)(14), the constraints in section 35
of the Act which provides for grant of prior approval to the creation
and appointment to the posts in the affiliated colleges, will have no
application to absorption of existing staff of affiliated colleges taken
over by the universities on their conversion as constituent colleges.
The High Court rejected the contentions advanced on behalf of
State that it alone has jurisdiction to set up enquiries including a
vigilance enquiry for identification and considering the absorption of
only such staff of the erstwhile affiliated colleges which had been duly
appointed with the prior approval of the State Government. The High
Court allowed the writ petitions filed by the Federation of the
employees and issued a writ directing the universities, which are
impleaded as parties to the petitions, to take steps and consider
absorption of the existing staff of the affiliated colleges in accordance
with section 4(I)(14) of the Act within a period of four months from
the date of the order.
Learned senior counsel Shri Rakesh Dwivedi appears for the
State of Bihar as the appellant before us. He has mainly attacked the
judgment of the High Court on the ground that it placed erroneous
interpretation on the relevant provisions of the Act and has arrived at
a wrong conclusion that the respective universities alone in respect of
affiliated colleges within their jurisdiction have to consider the merits
of the claims for absorption of various categories of members of the
staff [teaching and non-teaching] of affiliated colleges in accordance
with section 4(I)(14) of the Act.
We take up first the legal submissions advanced on behalf of the
State as appellant on the interpretation of the relevant provisions of
the Act.
To appreciate the rival contentions advanced on the
interpretation of the various relevant provisions of the Act, it would be
necessary to examine the scheme and make a brief survey of relevant
provisions of the Act.
The Act has been passed in the year 1976 ’to establish and
incorporate affiliating teaching universities at Muzafferpur, Bhagalpur,
Ranchi, Gaya [Bhodgaya] and Dharbhanga in the State of Bihar’.
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Section 2(c) defines the affiliated college thus :-
"2(c). ’Affiliated College’ means educational institution having
received privileges of the University according to the
provisions of this Act and University statutes relating
thereto."
Section 2(i) defines the ’constituent college’ as under :-
"2(i). ’Constituent College’ means a teaching institution
maintained or controlled by the University."
Section 4 enumerates various purposes and powers of the
universities and clause 14 of sub-section (I) of section 4 of the Act
which is directly under consideration for interpretation before us,
confers power on the university to assume management of any
educational institution as also take over its assets and liabilities. This
power can be exercised by the university after obtaining sanction of
the State Government. The university can also take over by entering
into an agreement with the concerned governing body, management
of any educational institution upon receiving a proposal for the same
from the State Government. In the instant case, the proposal to take
over affiliated colleges emanated from the State Government which
was conveyed to the universities by its letter dated 19.3.1986.
Proviso to clause 14 of Section 4(I) contains a non-obstante clause. It
confers power on the university to take decision with regard to the
appointments, special pay or allowances and irregularity, if any, found
in respect thereof in affiliated colleges of which management is
assumed by the university with its assets and liabilities. As it is stated
in the proviso, the decision taken by the university ’shall be final and
binding’. Clause 14 of section 4(I) of the Act with its proviso needs full
reproduction :-
"4. Purpose and powers of the University. \026 (I) 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."
[Emphasis supplied]
Other relevant provision is section 35 of the Act which prohibits
any affiliated college from creating a post or making appointment to
any post without prior approval of the State Government. Sub-clause
(i) of clause (b) of section 35 has been substituted by Act No. 3 of
1990 but without any material change over the original sub-clause (i)
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of clause (b) of section 35. Sub-clause (i) of clause (b) of section 35
prior to its substitution by new clause under Act No. 3 of 1990 reads
as under :-
"35. No post for appointment shall be created without the prior
sanction of the State Government. \026 ’Notwithstanding anything
contained in this Act’, no University or any college affiliated to such
a university, except such college :-
(a) .....................
(b) as is established by a religious or linguistic minority;
(i) shall after the commencement of this Act, create any
teaching or non-teaching post involving financial
liability;
(ii) ...................
(iii) ...................
(iv) ......without prior approval of the State
Government.
Sub-clause (i) of clause (b) of section 35 inserted by Act No. 3 of
1990 reads as under :-
"35. No post for appointment shall be created without the prior
sanction of the State Government. \026 Notwithstanding anything
contained in this Act, no University or any college affiliated to such a
university, except such college :-
(a) .....................
(b) as is established by a religious or linguistic minority;
(ii) after the commencement of this Act no teaching or non-
teaching post involving financial liabilities shall be
created without the prior approval of the State
Government.
[Emphasis supplied]
A new sub-section (3) of section 35 of the Act has also been
added by Act No. 17 of 1993 which reads thus :-
"Section 35(3). Any appointment or promotion made contrary to the
provisions of this Act, or Statutes, Rules or Regulations made
thereunder or made in irregular or unauthorized manner shall be
invalid and shall be terminated at any time. The expenditure incurred
by the University against such appointment or promotion shall be
realized from the officer making such appointment or promotion as a
public demand under the provisions of the Public Demand Recovery
Act, 1914.
Under section 57, there is a provision of appointment of Bihar
State University [Constituent Colleges] Service Commission for making
selections nd recommendations for appointment to posts in constituent
colleges. Section 57A which was inserted by Act No. 68 of 1982 and
was applicable at the relevant time to affiliated colleges converted as
constituent colleges, provides for requirement of consultation with a
’College Service Commission’ set up for affiliated colleges on dismissal,
termination, removal and retirement of employees of affiliated
colleges. Clause (c) of sub-section (2) of section 57A substituted by
Act No. 3 of 1990 is relevant only for the purpose of ascertaining the
legislative intention and as an aid to the interpretation of the
provisions regulating the absorption of staff of affiliated colleges. Sub-
section (2) of section 57A requires recommendation of ’College Service
Commission’ for making appointments to teaching posts in affiliated
colleges. Thus, there are two separate commissions \026 one for
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constituent colleges to be set up under Bihar State University
[Constituent Colleges] Service Commission Act 1987 and another for
affiliated colleges to be set up under Bihar College Service Commission
Act of 1976. Section 57A with all sub-sections and clauses added to it
by various amendment Acts read as under :-
" 1[57A]. (I) Appointment of teachers of affiliated colleges not
maintained by the State Government shall be made by the Governing
Body on the recommendation of the College Service Commission.
Dismissal, termination, removal, retirement from service or demotion
in rank of teachers of such colleges shall be done by the Governing
Body in consultation with the College Service Commission in the
manner prescribed by the Statutes :
Provided that the Governing Bodies of affiliated minority colleges
based on religion and language shall appoint, dismiss, remove or
terminate the services of teachers or take disciplinary action against
them with the approval of the College Service Commission :
Provided further that the advice of the College Service Commission
shall not be necessary in cases involving censure, stoppage of
increment or crossing of efficiency bar and suspension till investigation
of charges is completed.
(2) Recommendation for the appointment of teachers of colleges shall
be made in accordance with the following provisions :-
(a) College Service Commission shall give its consent/
recommendation for the appointment, dismissal or
termination etc. of teachers of affiliated colleges till the
date of their being made constituent colleges. Its
consent recommendations shall be deemed valid only till
that date.
(b) If an affiliated college becomes a constituent college of a
university by the time the recommendation of the
college service commission is received, the Syndicate
shall take action in accordance with sub-section (4) of
section 57 of the said Act, as if the recommendation has
been made by the Commission.
2[(c)] For the purpose of absorbing the service of the teachers
of the affiliated colleges, who were appointed by the
governing body of the college against the sanctioned
post before the Establishment of the College Service
Commission and whose services have been approved by
the University as also the services of such teachers who
were appointed by the governing body on the
recommendations of the University Service Commission
(Dissolved College Service Commission) as the case may
be, approval of the Bihar State University (Constituent
Colleges) Service Commission shall be necessary, and
such teachers shall be absorbed, in the University
Service from the date of making the college constituent
and their seniority shall be determined according to the
rules prescribed in the Statutes.
1. Ins. by Act, 68 of 1982.
2. Subs. By Act 3 of 1990.
Learned counsel appearing for State of Bihar has argued that
power to sanction additional posts and appointments against the same
in the affiliated colleges is within the exclusive jurisdiction and power
of the State under section 35 of the Act. The section opens with a
non-obstante clause meaning thereby that section 35 would have
overriding effect on clause 14 of section 4(I). The contention
advanced is that such appointees of the affiliated colleges who were
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working against non-sanctioned posts can claim no right of absorption
after the conversion of affiliated colleges into constituent colleges. It is
pointed out that taking advantage of the decisions dated 12.6.1987
and 18.12.1989 of the State Government by which information was
called with regard to appointees against post for which sanction was
pending either with the university or the State Government, large
number of manipulations and fabrications of the records took place in
various affiliated colleges to facilitate surreptitious entry in services of
the constituent colleges of several employees who were either
appointed after the cut off date or appointed illegally. It is also
contended that the second decision of the Government dated
18.12.1989 was taken after the change of elected government and it
had no prior approval of the Council of Ministers. The said decision of
18.12.1989, which is purported to have been issued with the approval
of the Chief Minister for and on behalf of the Cabinet, cannot be
treated to be a valid resolution of the Government. It being not
formally taken and expressed in the name of Governor in accordance
with Article 166 of the Constitution of India, is not binding on the State
Government. On behalf of the State, therefore, it is contended that the
High Court committed a serious error in allowing the writ petition
preferred by the association of employees of erstwhile affiliated
colleges and directing the universities concerned to re-examine
regularity or otherwise of all appointments in the affiliated colleges for
absorption of the staff into converted constituent colleges in
accordance with Section 4(I)(14) of the Act.
On behalf of the teachers and employees, learned counsel who
appeared separately in the cases in which they are engaged, advanced
arguments projecting different points of view on the interpretation of
the provisions of section 4(I)(14) and section 35 of the Act. In
substance common argument advanced is that section 4(I)(14), which
deals with powers of the university to review and take a decision on
the regularity or otherwise of appointments of affiliated colleges, after
they are taken over by the universities as constituent colleges, as a
result of non-obstante clause contained in its proviso gives an
overriding effect to the said provision over section 35. The State
Government, it is argued, cannot be allowed to arrogate to itself the
power of the university in the matter of absorption of members of the
staff working in the affiliated colleges against sanctioned posts or
against posts for creation of which sanction was pending with the
university or the State Government on the date of taking over the
colleges. Learned Senior Counsel Shri Ranjit Kumar by reading the
text of clause 14 of section 4(I) and section 35 highlighted the
different language employed in the non-obstante clauses in the two
above-mentioned sections. It is pointed that in proviso to clause 14 of
section 4(I), the non-obstante clause uses the expression
’notwithstanding anything to the contrary contained in this Act’
whereas non-obstante clause in the opening part of section 35 uses
the expression ’notwithstanding anything contained in this Act’.
Pointing out above distinction in the two expressions of non-obstante
clauses in section 4(I)(14) and section 35, the contention advanced is
on the subject of absorption of teachers of affiliated colleges which are
converted into constituent colleges, section 4(I)(14) overrides
section 35 and the directions made by the High Court, therefore,
deserve to be maintained.
For deciding to the question of interpretation of section 4(I)(14)
and section 35 and the competing claims of the State and the
University concerning their powers in the matter of absorption of the
staff of erstwhile affiliated colleges converted into constituent colleges,
a closer examination of the two provisions in the light of other
provisions of the Act becomes necessary. Section 35 is couched in
mandatory terms. It prohibits any affiliated college either to create a
teaching or non-teaching post involving financial liabilities or to make
any appointment against such post without prior approval of the State
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Government. Compared with this provision, clause 14 of section 4(I)
enables the university, after obtaining sanction from the government
or on the basis of the proposals of the State Government, to take over
any ’institution’ affiliated or non-affiliated. It is with the purpose of
enabling universities to take over any institution that it has been
conferred with a power to enter into an agreement with the Governing
and/or Managing Body of such institution. After entering into such
agreement the university is empowered by the proviso to clause 4 to
review the appointments made in the institution which is taken over
and take a decision with regard to the regularity or otherwise of the
appointments. The decision of the university in the above regard is to
be held as ’final and binding’.
Taking note of the difference in language employed in the non-
obstante clauses in section 4(I)(14) and somewhat similar clause in
section 35, we do find that the legislature intends to give overriding
effect to one provision over the other. Proviso to clause 14 of section
4(I) uses the expression ’notwithstanding anything to the
contrary contained in this Act’ whereas opening part of section 35
uses the expression ’notwithstanding anything contained in this
Act’.
A non-obstante clause is generally appended to a section with a
view to give the enacting part of the section, in case of conflict, an
overriding effect over the provision in the same or other Act mentioned
in the non-obstante clause. It is equivalent to saying that inspite of
the provisions or Act mentioned in the non-obstante clause, the
provision following it will have its full operation or the provisions
embraced in the non-obstante clause will not be an impediment for the
operation of the enactment or the provision in which the non-obstante
clause occurs. [See ’Principles of Statutory Interpretation’, 9th Edition by
Justice G.P. Singh \026 Chapter V, Synopsis IV at pages 318 & 319]
When two or more laws or provisions operate in the same field
and each contains a non-obstante clause stating that its provision will
override those of any other provisions or law, stimulating and intricate
problems of interpretation arise. In resolving such problems of
interpretation, no settled principles can be applied except to refer to
the object and purpose of each of the two provisions, containing a
non-obstante clause. Two provisions in same Act each containing a
non-obstante clause, requires a harmonious interpretation of the two
seemingly conflicting provisions in the same Act. In this difficult
exercise, there are involved proper consideration of giving effect to the
object and purpose of two provisions and the language employed in
each. [See for relevant discussion in para 20 in Shri Swaran Singh & Anr. v. Shri
Kasturi Lal; (1977) 1 SCC 750]
Normally the use of phrase by the Legislature in a statutory
provision like ’notwithstanding anything to the contrary contained in
this Act’ is equivalent to saying that the Act shall be no impediment to
the measure [See Law Lexicon words ’notwithstanding anything in this Act to the
contrary’]. Use of such expression is another way of saying that the
provision in which the non-obstante clause occurs usually would
prevail over other provisions in the Act. Thus, non-obstante clauses
are not always to be regarded as repealing clauses nor as clauses
which expressly or completely supersede any other provision of the
law, but merely as clauses which remove all obstructions which might
arise out of the provisions of any other law in the way of the operation
of the principle enacting provision to which the non-obstante clause is
attached. [See Bipathumma & Ors. v. Mariam Bibi; 1966(1) Mysore Law
Journal page 162 and at page 165]
If we examine the scheme of the Act and object of the two
provisions, they seem to operate in two different fields and there is no
conflict in them. Section 35 is expressly applicable to affiliated colleges
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and mandates that new posts giving rise to financial liabilities cannot
be created and appointments against them cannot be made without
prior approval of the State Government.
In contrast, clause 14 of section 4(I) operates in a totally
different field that is where on grant of sanction by the government or
on receiving a proposal from the State Government, the university
enters into an agreement with any affiliated or non-affiliated institution
to take over its management with assets and liabilities. It is with
regard to such institutions which are taken over with the staff working
in them that the university has been given exclusive power to review
the appointments made in such institution and take a decision
regarding absorption of the staff with due regard to the regularity or
otherwise of their appointments. Clause 14 of section 4(I), by the
language employed in it, contemplates taking over of even such
institutions where there may be staff employed or working without
valid sanction of the posts. University is empowered to make a review
of such appointments and consider absorption of such employees. The
non-obstante clause using the expression ’notwithstanding anything to
the contrary contained in this Act’ has to be construed and given effect
to with the above object and purpose evinced by express language
employed in clause 14 which enables the university not only to take
over the assets and liabilities of the institution but also the staff
appointed regularly or otherwise.
Section 35 is applicable to all ’affiliated colleges’ but does not
cover a situation at a stage when an ’affiliated college’ is proposed to
be taken over as ’constituent college’ by the university on the sanction
or proposal of the State Government. The subject of taking over
institution affiliated or non-affiliated with assets, liabilities and staff is
regulated by provisions of clause 14 of Section 4(I) alone. Section 35
of the Act requiring obtaining of prior approval to creation of posts or
appointments against them, is not intended to restrict the powers of
university in absorbing staff of institutions taken over in accordance
with the terms of agreement entered into with the governing bodies of
those institutions. It is a different matter that in taking a decision for
absorbing the staff of non-affiliated or affiliated institution under an
agreement to be entered into with the Governing Bodies or
Managements of such institution, the university may bestow due
regard to the validity or otherwise of the appointments where the
institution is an affiliated college and the qualifications of persons
appointed. University may also take into consideration the provisions
of section 35 to decide whether any appointment made against posts,
without prior approval of the State Government, should be recognized
for absorption or not.
In the course of argument on behalf of the State, it is urged that
the provision requiring prior approval for creation of posts and
appointments against them in section 35 is mandatory in nature and
no ex-post facto approval can be granted.
On the other hand on behalf of the employees, learned counsel
has argued that looking to the other provisions of the Act particularly
those permitting absorption of existing staff regularly appointed or
otherwise, the provision requiring ’prior approval’ in section 35 is to
be construed as merely directory meaning that it does not prohibit
State Government granting an ex-post facto approval to a post created
and appointment made against it.
We do not consider it necessary to express any final opinion as
to whether the provision of ’prior approval’ contained in section 35 for
creation of posts and appointments in affiliated college is mandatory or
directory. For the purpose of this batch of cases, it is sufficient for us
to opine that clause 14 of section 4(I) operates in exclusive field of
considering and taking decision on absorption of staff appointed
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regularly or otherwise in an institution including an affiliated or non-
affiliated college which is to be taken over as ’constituent college’
under a formal agreement reached between the university and the
Governing Body of that college. In the process of taking over of
management, assets, liabilities and staff of the affiliated or non-
affiliated college, the university has to take a decision with regard to
absorption of existing staff. In this process of consideration for
absorption, it may have regard to the provisions of the Act including
observance of the provisions of section 35 of the Act. In the matter of
absorbing staff of colleges taken over, any alleged non-observance of
alleged mandatory provision of obtaining prior approval under section
35, before creation of posts and appointments to them, would not be
an impediment in the way of university to permit absorption of an
employee working against a post. It may for the above purpose seek
ex-post facto approval of the State Government. The decision of the
government contained in its communication dated 18.12.1989 itself
allows consideration of absorption of the members of the staff working
against post for which sanction for creation of posts was pending with
the State Government on recommendations of the university. We do
not find any conflict in the provisions of section 4(I)(14) and section
35, although each contains a non-obstante clause. They intend to
override each other in field exclusively assigned to each.
Appointments in affiliated college in normal circumstances has to be
with prior approval of State Government in accordance with section 35
but subject matter of absorption of services of staff taken over shall be
within exclusive jurisdiction of concerned university in accordance with
Section 4(I)(14) of the Act .
The two non-obstante clauses with slightly different wordings
have thus to be harmoniously construed so as to fulfil the object of
each one of them. On examination of the scheme of the Act and the
relevant provisions, we find that Section 35, requiring prior sanction of
the State Government for creation of posts and appointments, applies
to all affiliated colleges. Compared with Section 35 - Section 4(I)(14)
has limited operation at a stage when university enters into an
agreement with the management or governing bodies of private
institutions affiliated or non-affiliated for taking over its management,
assets, liabilities and staff. The effect of non-obstante clause in
Section 4(I)(14) is that the matter of absorption of staff of such
institution/college proposed to be taken over, would be within the sole
power and jurisdiction of the university concerned within whose
jurisdiction the affiliated college or institution falls. On matter of
absorption of staff of taken over institutions, Section 35 requiring prior
sanction or approval of the State Government for creation of posts and
appointment, would not be a constraint on the power of the university.
It is a different thing that the university in considering absorption of
the staff of institution taken over may give due consideration to the
legality/regularity or otherwise of a particular appointment but it would
not be inhibited by the absence of prior sanction or approval of the
State as contemplated in section 35 of the Act. This is how the two
non-obstante clauses have to be harmoniously construed and applied
as giving overriding effect to each and restrict their operation within
exclusive field assigned to each. In the matter of creation of posts and
appointments in affiliated colleges in normal circumstances,
requirement of prior sanction or approval of the State Government, as
contained in Section 35, is not dispensed with because of the contrary
provision contained in section 4(I)(14) and the latter Section is
restricted in its operation to absorption of staff of a taken over
institution by the university.
Clause (c) to sub-section (2) of section 57A was introduced by
Act 3 of 1990 and has no retrospective application to the cases of
affiliated colleges taken over as constituent colleges prior to the year
1990. The said clause (c) to sub-section (2) of section 57A requires
further approval of Bihar State University [Constituent Colleges]
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Service Commission before absorbing the services of teachers of the
affiliated colleges converted into constituent colleges. The aforesaid
piece of subsequent legislation amending the same Act can
appropriately be taken as an aid to the interpretation of the
unamended provisions of the Act. The amended provisions of the Act is
an indication that subject of absorption of staff of taken over affiliated
colleges is treated as a subject distinct from regular recruitment to the
posts in affiliated colleges which is to be made with prior sanction or
approval of the State Government as provided in section 35 of the
Act. Similarly, Sub-section (3) added to section 35 by Act 17 of 1993
is also prospective in application and has no adverse effect on the
absorption of the services of the teaching staff of the affiliated colleges
taken over as constituent colleges prior to 1993. Sub-section (3)
applies to normal mode of recruitment to staff [teaching or non-
teaching] of affiliated colleges and is merely reiteration of the legal
position that appointments and promotion made contrary to the
provisions of the Acts, statutes, rules and regulations would be invalid
and liable to be terminated at any time. It also provides that any
expenditure incurred by the university against such illegal, irregular,
unauthorized appointments/promotions shall be realized from the
officers found responsible for committing such illegality as a public
demand under the provisions of Public Demand Recovery Act 1914.
Clause (c) of section 57A (2) introduced in the year 1990 and sub-
section (3) of section 35 introduced in the year 1993 being
prospective in operation have no application to the affiliated colleges
taken over as constituent colleges with the existing staff prior to the
year 1990. Those provisions introduced subsequently in the year 1990
and 1993 are being referred to for a limited purpose to show that the
Legislature has always treated differently the normal recruitment
which has to be made with approval of State Government to teaching
and non-teaching posts in affiliated colleges and the matter of
absorption of existing staff appointed against sanctioned or non-
sanctioned posts in the affiliated colleges taken over and converted as
constituent colleges.
The two non-obstante clauses, although slightly differently
worded one in proviso to Section 4(I)(14) and the other in Section 35
of the Act have thus, been construed harmoniously. Our conclusion is
that they operate in two different fields \026 former to consideration of
absorption of staff of taken over colleges and the latter to affiliated
colleges when they are not under any proposal of being taken over by
the university. The two provisions being intended to operate in two
different situations and fields both have an overriding effect on each
other. That is why the Legislature has employed a non-obstante
clause in each.
Based on the various decisions taken by the State Government
from time to time to which reference has already been made above, by
order passed on 01.2.1988, the State Government on the
recommendations of the Committee constituted by it to consider
proposals for creation of additional posts and proposals for affiliation
which had been received from the universities up to 30.4.1986,
decided to grant sanction to the proposals.
On behalf of State of Bihar and State of Jharkhand, learned
counsel appearing have contended that the order dated 01.2.1988
granting sanction and affiliation for certain posts received by the
universities before the cut-off date on recommendation of the
Committee constituted by the State Government cannot be treated to
be a valid order of the government sanctioning posts because there
was no Cabinet approval to the same. It is submitted that the order
dated 01.2.1988 was issued by the Deputy Secretary to Government
of Bihar without any approval of the Cabinet. It has no legal efficacy.
Any valid order of the government has to be formally expressed in the
name of Governor in accordance with Article 166 of the Constitution of
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India.
Similar objection has been raised against the order dated
18.12.1989 by which, relying on the recommendations of the
Committee constituted, the State Government directed absorption of
incumbents working on posts sanctioned and recommended before the
cut-off date.
The validity and authenticity of the two orders dated 01.2.1988
and 18.12.1989 of the State Government were not questioned before
the High Court in the writ petition filed by the employees of the
converted constituent colleges. Question on their validity was raised
only before the one-member Enquiry Commission of Shri Justice S. C.
Agrawal [Retd.]. On the question of validity of the order dated
01.2.1988, the Enquiry Commission delved into the notings in the
government files and found that the Education Minister had recorded
in one of the files that the Cabinet in its meeting held on 22.6.1988
had authorized the Chief Minister to take a decision in that regard.
According to the Commission, the order dated 01.2.1988 is duly
authorized order of the State Government and this fact is evident from
the subsequent Resolution No. 307 dated 08.3.1988, which is duly
authenticated order issued in the name of the Governor of Bihar. The
subsequent Resolution formally issued in the name of Governor is a
sequel to the order dated 01.2.1988 and does not disturb it.
So far as the order dated 18.12.1989 of the State Government
directing absorption of employees against posts sanctioned and
recommended by the Committee, the Commission did not go into that
question stating that it was subject matter for decision before this
Court in the present pending appeal.
Since the validity and authenticity of the two orders dated
01.2.1988 and 18.12.1989 were not raised before the High Court and
were raised for the first time before the Commission, we decline to go
into them. The joint stand taken on behalf of the State of Bihar and
the State of Jharkhand before this Court, deserves to be rejected.
That apart the Commission has taken note of the fact that the
order dated 01.2.1988 was followed by a formal Resolution No. 307
dated 08.3.1988 which was duly authenticated order issued in the
name of Governor of Bihar and did not disturb the order dated
01.2.1988. It is a resolution formally taken and expressed in the name
of Government of Bihar in accordance with Article 166 of the
Constitution of India to give effect to the order made on 01.2.1988.
So far as the order dated 18.12.1989 is concerned, the State
being the author of that decision merely because it is formally not
expressed in the name of Governor in terms of Article 166 of the
Constitution of India, the State itself cannot be allowed to resile or go
back on that decision. Mere change of the elected government does
not justify dishonouring the decisions of previous elected government.
If at all the two decisions contained in the orders dated 01.2.1988 and
18.12.1989 were not acceptable to the newly elected government, it
was open to it to withdraw or rescind the same formally. In the
absence of such withdrawal or rescission of the two orders dated
01.2.1988 and 18.12.1989, it is not open to the State of Bihar and
State of Jharkhand [which has been created after reorganization of the
State of Bihar] to contend that those decisions do not bind them.
Special Leave Petition (C) No. 18168 of 2002
This Special leave petition arises out of an order of the Division
Bench of the High Court of Patna whereby the claim for retirement
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dues of the appellant, as member of the teaching staff of the erstwhile
affiliated colleges, which were converted into constituent colleges have
been directed to be paid to him subject to the outcome of the present
appeal pending before this Court.
As we have held above, the University has to take a decision on
the claim of retrial dues, on the basis of the findings of the enquiry
commission. The university shall examine the question of regularity or
otherwise of the appointment of the appellant in the concerned college
and if he was found to be entitled to be absorbed, the university, shall
disburse his retrial dues. The special leave petition of Chander Kishore
Sharma thus, stands disposed of with the above directions.
Contempt Petition (C) Nos. 5, 53, 54, 83, 353, 363, 549, 82 of
2002 and 343, 377, 441 of 2004 in CA No. 6098 of 1997
The contempt petitions have been filed by members of the staff
individually and jointly. Many of them were not even parties before
the High Court. They complain non-compliance of order of this Court.
After the Commission of Enquiry to be headed by Justice SC Agrawal
(retired judge of this Court) was set up, the employees were directed
to be paid their salary along with admissible allowances pending
decision of this appeal.
In the counter-affidavit filed by alleged contemnors, who are
the authorities of the State, the defence taken is that since the
question of validity of appointment in various affiliated colleges and
absorption of members of the staff was under investigation before the
enquiry commission and in this Court, it was not possible for the State
to make payment of salary to such persons whose appointment itself
was in serious doubt. The Commission has also found several cases of
manipulations and interpolations in the records. It is submitted that in
the above circumstances, non-disbursement of salaries to such
employees, whose appointments itself were in serious doubt, cannot
be held to be a deliberate contempt which deserves any punitive
action. The stand taken by the contemnors seems reasonable and
justified. Salaries could not have been disbursed to such employees
whose appointments were in serious doubt. We find no good ground
to take any punitive action against the authorities. The Contempt
Petitions, thus, stand disposed of.
For Impleadment/interventions :
Large number of applications individually and collectively have
been filed by the employees objecting to the report of the Commission
to the extent it adversely affects their status, right of absorption and
payment of salaries to them. By different applications, they have
sought their joinder as parties to the appeals before us and filed
objections to the enquiry report. We have considered all the written
objections and submissions filed in support thereof. Most of the written
objections by individual employees preferred independently or through
their associations are mainly based on the reports of the Committees
constituted by State Government and the recommendations for
absorption made by the concerned universities.
We have already mentioned above that this Court decided to set
up one-member Enquiry Commission of retired Judge of this Court
only because serious doubts were raised on the authenticity of the
records of the affiliated colleges converted into constituent colleges as
also the proceedings of the Committee and the recommendations of
the universities. The Enquiry Commission set up by this Court had
granted opportunity to all affected parties to place their cases before
it. Some of the parties and individuals availed the opportunity before
the Commission.
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Most of the objections to the report of the Enquiry Commission
are based on the reports of the various committees set up by the State
and the recommendations of the universities. Thereafter, we set up an
Enquiry Commission which has given its report. It is, therefore, not
possible to grant any relief or directions in favour of the objectors on
the basis of the reports of the various committees and
recommendations of the universities. We have now directed the
universities concerned, in respect of colleges within their respective
jurisdiction to issue formal orders of absorption in the constituent
colleges on the basis of the report of the Enquiry Commission and in
the light of our judgment.
In some of the written objections, certain mistakes of names and
descriptions of employees in the Report of the Commission have been
pointed out. Such mistakes in the Report of the Commission may be
brought by the affected employees to the notice of the universities
concerned. It would be open to the universities, for the above limited
purpose to undertake enquiry and verification of the records to rectify
and rely upon the report of the Commission with the necessary
corrections only with regard to the names and descriptions of the
employees.
In view of this judgment and the directions made herein to the
University to take a final decision based on the report of the enquiry
commission, all the applications for impleadment as parties and
objections filed to the enquiry report are rejected. It is for the
University to take a final decision concerning the individual employees.
For the same reason, no further orders are required on the
Interlocutory applications seeking certain directions pending the
appeal and for modification of earlier orders made. Other interlocutory
applications also need no further directions or orders. They all stand
disposed of.
Conclusions :
1. The judgment of the High Court to the extent of the
interpretation placed by it on the provisions of section 4(I)(14)
and section 35 with the directions issued in paragraphs 24 to 26
therein, is hereby confirmed for the reasons recorded by us
above.
2. The report of the commission of enquiry of Hon. Justice S. C.
Agrawal [retired], is accepted and all objections filed against the
said report are rejected.
3. The members of the staff in various affiliated colleges identified
and named in list no. (i) being appointees against the sanctioned
posts shall be absorbed and formal order to that effect shall be
issued by the universities concerned.
4. The universities shall take a decision under section 4(I)(14) of
the Act in the matter of absorption of appointees named in list
no. (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 25.08.1986 and
12.06.1987.
In considering the question of absorption of appointees named in
list no. (ii) of the report of the Enquiry Commission, the
universities concerned shall rely on the contents of the report of
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the enquiry commission and the present judgment of this Court.
5. 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 maybe 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.
6. 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.
The universities concerned shall now complete the process of
absorption of the staff of the affiliated colleges [teaching and non-
teaching] in the manner and to the extent stated above in our
judgment within a period of four months from the date of
receipt/production of the copy of this order.
The arduous work of scrutinizing large number of files, hearing
large number of individual employees and their associations as also
concerned authorities and preparing and submitting a detailed report
to facilitate this Court in deciding these cases, was completed by Mr.
Justice S. C. Agrawal [retired] as one-member Enquiry Commission
within a reasonable period. Before parting with this case, we thankfully
acknowledge the valuable services of the Commission.
In the result, the appeal, the connected special leave petition
and contempt petitions, all are dismissed. The applications for
impleadment as parties, applications seeking interventions and other
applications raising objections to the report of the Enquiry Commission
and seeking directions, all stand rejected.
In the circumstances, we leave the parties to bear their own
costs incurred in this Court.