State
of Bihar & others
Vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh. & Ors [2004] Insc 635 (12 October 2004)
Y. K. Sabharwal & D. M. Dharmadhikari
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] 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 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.
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.
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 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 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 (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 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'.
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. (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) 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. '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. 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 one for 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 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 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 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 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 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] 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 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 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 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.
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 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.
Back
