Jharkhand High Court
Nilamber Pitamber University vs Brij Kumar Mishra on 8 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No.18 of 2022
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Nilamber Pitamber University, through its Registrar, N.P. University,
Medininagar, Palamau, PO & PS-Medininagar, Dist.Palamau
....... ... Appellant
Versus
1. Brij Kumar Mishra, Son of Late Paras Nath Mishra, Lecturer,
Department of Hindi, S.J.S.N. College, Garhwa, Nilamber Pitamber
University, Palamau (earlier under Ranchi Unversity, PO & PS-Garhwa,
Dist.-Garhwa ... ... Petitioner/Respondent
2. The State of Jharkhand
3. Ranchi University, through Registrar, Ranchi University, Ranchi,
Shahid Chowk, Ranchi-834001, PO+PS-Ranchi, District-Ranchi,
Jharkhand ........ ..... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Dr. Ashok Kumar Singh, Advocate
For the Respondents : Mr. Shadab Eqbal, Advocate
Mr. Vineet Prakash, AC to SC-IV
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C.A.V on 17.04.2025 Pronounced on 08/05/2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under Clause 10 of the Letters Patent is directed
against the order dated 21.12.2021 passed in W.P(S) No.1850 of 2018
whereby and whereunder the learned writ Court has directed the
appellant-University to consider the case of the petitioner and pass an
appropriate order regarding fixation of date of absorption from the date
of acquiring eligibility, i.e., 05.12.1987.
2. The brief facts of the case as per the pleadings made in the memo of
appeal needs to refer herein as under:
(i) That S.J.S.N College, Garhwa became a constituent college
of Ranchi University on 31.03.1987. The writ petitioner was
appointed as Lecturer on 22.02.1986 on the unsanctioned 5 th
post in the Department of Hindi in SJSN College, Garhwa.
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(ii) That on 22.02.1986 the petitioner did not have the basic
minimum qualification/ eligibility to be appointed as a
University teacher. The petitioner acquired the minimum
eligibility condition for appointment/absorption/regularization as
Lecturer on 05.12.1987.
(iii) That on 05.12.1987 the petitioner acquired the basic
minimum qualification of a high second class degree in post
graduation to be eligible for consideration to be appointed/
absorbed/ regularized as a University Teacher. Accordingly, the
petitioner was absorbed on 05.08.2005 with effect from
01.06.2003.
(iv) That Justice (Retd.) S.C. Agrawal Commission was
constituted by the Hon'ble Supreme Court of India vide its order
dated 12.10.2001 in the matter of "State of Bihar & Ors. V.
Bihar Rajya MSESKK Mahasangh & Ors." reported in (2005)
9 SCC 129 to give its recommendations on different points
including the issue of regularization/absorption of teachers
working in 40 affiliated colleges which had been made
constituent units in the then undivided Bihar including S.J.S.N.
College, Garhwa.
3. It is evident from the factual aspect that the writ petitioner was
appointed and joined the post of lecturer in Hindi Department on
22.2.1986 in S.J.S.N College, Garhwa, under the jurisdiction of Ranchi
University, now Nilamber-Pitambar University, Palamau.
4. The writ petitioner has been taken under the regular establishment
w.e.f. 01.06.2003.
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5. The writ petitioner being not satisfied with the decision taken by the
appellant-University for his absorption w.e.f. 1.06.2003 and not w.e.f.
05.12.1987 even though he was eligible on, all count, for inducting in
service under the regular establishment has preferred a writ petition being
W.P(S) No.1850 of 2018 praying therein for quashing of the notification
contained in Memo No. 317/05 dated 05.08.2005 by which the service of
the petitioner was absorbed w.e.f. 01.06.2003 instead of 05.12.1987, even
though the writ petitioner has attained the eligibility as per the
recommendation of Justice S.C. Agrawal Committee.
6. The learned writ Court, has come to the conclusion by taking into
consideration the recommendation of Justice S.C. Agrawal Committee
having been accepted by the Hon'ble Apex Court in the case of "State of
Bihar & Ors. V. Bihar Rajya MSESKK Mahasangh & Ors." (Supra)
and considering eligibility of the writ petitioner available w.e.f.
05.12.1987 has quashed the order dated 05.08.2005 with a direction to
absorb the petitioner in service w.e.f. 05.12.1987.
7. The said order is under challenge by preferring the present appeal by
the appellant-Nilamber Pitambar University.
Argument on behalf of the appellant-University:
8. Dr. Ashok Kumar Singh, the learned counsel appearing for the
appellant-University has taken the following grounds in assailing the
order passed by the learned writ Court:
(i) It has been contended that the learned Single Judge has not
appreciated the consideration given by the subsequent
Committee constituted by the Hon'ble Apex Court which was
headed by Hon'ble Mr. Justice late S.B. Sinha wherein the fact
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about holding the eligibility has been found to suffer from an
error.
(ii) It has been contended that the learned Single Judge has also
relied upon Justice S.C Agrawal Committee report, but even on
the basis of the S.C Agrawal Committee report the case of the
present writ petitioner is not fit to be absorbed w.e.f. 05.12.1987
reason being that there were altogether four sanctioned posts in
the Hindi faculty and all posts were filled up as on 05.12.1987.
(iii) The writ petitioner was working against fifth posts, not
sanctioned, therefore, the writ petitioner cannot be absorbed
w.e.f. 05.12.1987 even though he has eligibility as on
05.12.1987 due to non- availability of the sanctioned post as on
05.12.1987 and due to filling up of the entire sanctioned posts.
(iv) The post fallen vacant on 01.06.2003 due to superannuation
of Dr. Ram Naresh Pathak, and, as such, the writ petitioner has
been absorbed in service w.e.f. 01.06.2003. But the learned
Single Judge has not considered the issue of the non-availability
of the sanctioned post as on 05.12.1987 and merely gone on the
issue of eligibility. Therefore, the order passed by the learned
Single Judge directing the University to absorb the writ
petitioner w.e.f. 05.12.1987 cannot be said to be proper.
(v) The learned Single Judge has also not appreciated the fact
that the element of fraud has been found to be there as has been
observed in the report of Justice S.B. Sinha (Retd.) Committee
in misrepresenting the fact showing only on the basis of
eligibility for absorption of the writ petitioner even though as on
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05.12.1987 there was no sanctioned post available in Hindi
faculty.
(vi) The learned Single Judge has also not appreciated the fact
that in absence of any sanctioned post there cannot be any
absorption but without appreciating the aforesaid fact direction
has been passed for absorption of the writ petitioner w.e.f.
05.12.1987.
(vii) The further ground has been taken that the entire fact has
been brought to the notice of the learned Single Judge even the
observation so made by late Justice S.B. Sinha Committee and
there is no finding in the impugned order and, as such, the
judgment passed by the learned Single Judge, without taking
into consideration the observation made in Justice S.B. Sinha
Committee report, the direction so issued cannot be said to be
proper.
9. Learned counsel based upon the aforesaid ground has contested the
case by showing the error in the impugned order.
Argument on behalf of the writ petitioner-respondent no.1:
10. Mr. Shadab Eqbal, the learned counsel appearing for the writ
petitioner-respondent no.1 herein has taken the following grounds in
defending the impugned order:
(i) The learned Single Judge has not erred in passing the
impugned order, reason being, the learned Single Judge has gone
into the report of Justice S.C Agrawal Committee wherein the
name of the writ petitioner was find mentioned under the list of
the recommended candidates, Annexure-IV A at Sl. No.4
(Hindi) and, as such, the learned Single Judge on consideration
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of the aforesaid fact since has passed the order, hence, the same
cannot be said to suffer from an error.
(ii) The ground has been taken that the learned Single Judge has
gone into the eligibility and the writ petitioner since was having
with the eligibility for absorption in service as on 05.12.1987,
hence, the denial of the said benefit of absorption w.e.f. the date
of eligibility has been considered to be improper. Therefore, the
direction has been passed for absorption of the writ petitioner
w.e.f. 05.12.1987 instead of 01.06.2003.
(iii) The learned counsel has categorically relied upon
recommendation made by Justice S.C Agrawal Committee
which according to the learned counsel for the writ petitioner-
respondent has been adopted, in entirety, by the Hon'ble Apex
Court. Since the name of the writ petitioner is available in
Annexure-IVA under the recommended list and, as such, it is
incorrect on the part of the appellant-University to take the
ground that the case of the writ petitioner for absorption w.e.f.
05.12.1987 is not sustainable in the eyes of law.
11. Learned counsel based upon the aforesaid ground has submitted that
the impugned order therefore needs no interference.
Analysis:
12. We have heard the learned counsel for the parties and gone through
the findings recorded by the learned Single Judge in the impugned order,
as also the judgment passed by the Hon'ble Apex Court in the case of
"State of Bihar & Ors. V. Bihar Rajya MSESKK Mahasangh & Ors."
(supra).
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13. It is evident from the fact as has been referred hereinabove that the
writ petitioner was appointed on 22.02.1986. The issue of absorption has
been taken into consideration by the Hon'ble Apex Court after the matter
being travelled from Patna High Court in the case of "State of Bihar &
Ors. V. Bihar Rajya MSESKK Mahasangh & Ors." (supra). The
Hon'ble Apex Court has constituted a Committee headed by Hon'ble
Mr. Justice S.C. Agrawal (Retd.). The Committee has submitted its
report. It is evident from the paragraph-73 of the said judgment that the
following conclusion has been arrived at for acceptance of the same by
the Hon'ble Apex Court which is being referred hereinbelow:
"73. 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(1)(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
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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."
14.It is evident from the Justice Agrawal Commission Report that three
list have been prepared (i) under the head of Sanctioned Post, (ii) under
the list of the recommended candidates for creation of post, and (iii)
teachers who do not possess the requisite qualification on the date of
appointment, but became eligible after the appointment.
15. So far as the issue of sanctioned post which is available in Annexure-
I-A of the report altogether four posts have been shown to be there within
the sanctioned strength, for ready reference the number of sanctioned
post is being referred herein:
SANCTIONED POSTS OF TEACHERS Annexure-IA
Nature of posts Order sanctioning the post Total number
subject-wise subject-wise of posts subject-wise
Mar. Sept. Aug. Mar. Nov. Nov. Apr.
5 25 6 30 13 28 30
1980 1981 1985 1987 1987 1987 1988
Lecturers
(Civics)
(Logic)
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21. Labour &
16. Annexure-II A contains the list of the recommendation made by the
University upto the cut-off date pending consideration before the State
Government, for ready reference the extract of the Annexure-IIA is being
quoted herein:
Annexure-IIA
(a) RECOMMENDATIONS MADE BY THE UNIVERSITY UPTO THE CUT
OFF DATE PENDING CONSIDERATION BEFORE THE STATE
GOVERNMENT
NIL
(b) PROPOSAL SUBMITTED BY THE COLLEGE ADMINISTRATION
PENDING CONSIDERATION BEFORE THE UNIVERSITY
Nature of the Post Date of Letter Total number of
Recommended posts
subjective
Lecturers Jan.19 Jan.20 Jan.29 March 24
1987 1987 1987 1987
(6th post)
(5 to 8th )
th
17. It is evident from the Annexure-III A that the following persons have
been appointed in the Hindi faculty, i.e., (1) Dr. Ram Naresh Pathak at
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Sl. No.40, (2) Sri Subarn Mahto at Sl. No.41, (3) Sri Ghanshyam Pandey
at Sl. No.42 and (4) Sri Baij Nath Roy at Sl. No.43.
18. Thus, these four persons had been shown to be appointed under the
sanctioned strength. The name of the writ petitioner appears at Sl. No.44
in the category of post recommended up to the cut-off date, for ready
reference the extract of the aforesaid tabular chart as available in
Annexure-III A is being quoted herein:
Annexure-III A
TEACHERS WHO WERE WORKING ON THE DATE OF CONVERSION ARRANGED
SUBJECT WISE
Name of the Teacher Date of eligibility Date of appointment
1. Sri Bhagwan Tiwari Principal 5.2.1984 'S'
2. Sri Praveen Prabhakar Economics 14.8.1981 'S'
3. Sri Raj Kumar Sinha " 19.1.1986 'S'
4. Sri Brahamdev Singh " 19.1.1986 'S'
5. Sri Vijay Kumar Prasad " 8.9.1986 'S'
6. Sri Ram Kumar Prasad " 27.11.1986 'S'
7. Sri Raj Kishore Singh " 20.1.1987 'S'
8. Sri Sheo Kumar Prasad Gupta " 12.2.1987 'S'
9. Sri Surendra Prasad Verma History 21.6.1974 'S'
10. Sri Akhila Nand Pandey " 16.1.1981 'S'
11. Sri Anil Kuniar Verma " 12.9.1984 'S'
12. Sri Awadh Kishore Panday " 19.1.1986 'S'
13. Sri Sachidanand Upadhyay " 19.2.1986 'S'
14. Sri Baidynath Singh " 14.3.1986 'S'
15. Sri Arun Kumar " 12.9.1986 'S'
16. Sri Devinder Kumar Dwivedi " 12.2.1987 'S'
17. Sri Madan Choubey " 15.2.1987 'S'
18. Sri Purushottam " 19.2.1987 'S'
19. Sri Bhagwat Ram Geography 2.10.1978 'S'
20. Sri Binod Kumar " 26.1.1984 'S'
21. Sri Sataya Prakash Choudhary " 25.6.1985 'S'
22. Sri Inderjeet Prasad " 19.1.1986 'S'
23. Sri Akhilesh Kumar Yadav " 10.1.1987 'S'
24. Sri Arvind Kumar " 12.2.1987 'S'
25. Sri Sunil Kumar " 12.2.1987 'S'
26. Smt. Mithila Singh English 6.10.1974 'S'
27. Sri Narendra Kumar Singh " 19.12.1983 'S'
28. Sri Sunil Kumar Singh " 20.12.1985 'S'
29. Sri Manoj Kumar Srivastava " 1.9.1986 'S'
30. Sri Birendra Kumar " 29.1.1987 'S'
31. Sri Shakeel Ahemad " 29.1.1987 'S'
32. Sri Uma Sankar Singh " 29.1.1987 'S'
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33. Sri Mahendra Prasad Singh Political Science 06.10.1974 'S'
34. Sri Purushottam Upadhyay " 06.10.1976 'S'
35. Sri Mahendra Nath Tewari " 1.9.1984 'S'
36. Sri Dilip Kumar " 30.11.1984 'S'
37. Ms. Chhaya Chatterjee " 9.2.1986 'S'
38. Sri Jagdishwar Pandey " 9.2.1986 'S'
39. Smt. Pushpa Ojha " 29.1.1987 'S'
40. Sri Ram Nariesh Pathak Hindi 20.7.1975 'S'
41. Sri Subarn Mahto " 26.6.1981 'S'
42. Sri Ghansyam Pandey " 25.6.1983 'S'
43. Sri Baij Nath Rai " 25.6.1985 'S'
44. Brij Kumar Mishra " 22.2.1986 'R-I'
45.Sri Sudeshawar Mahto " 12.2.1987 'R-I'
46. Sri Qazi Abdul Hadi Urdu 2.12.1974 'S'
47. Sri Abdul Jabbar Khan " 6.3.1986 'S'
48. Smt. Rokhsana Hadi " 27.1.1987 'S'
49. Sri Safruddin Sheikh " 12.2.1987 'S'
50.Sri Sheopujan Prasad Singh Philosophy 31.12.1982 'S'
51. Sri Ram Badan Mehta " 31.12.1982 'S'
52. Smt. Bibha Kumari " 16.7.1984 'S'
53.Smit. Nita Rani Sinha " 1.5.1985 'S'
54.Smt. Sarita Kumari " 1.2.1986 'S'
55.Sri Vinod Kumar Pathak Sanskrit 17.7.1984 'S'
56. Sri Manoj Kumar Pathak " 26.8.1985 'S'
57. Sri Laxmi Narayan Mishra " 28.12.1985 'S'
58. Sri Diwakar Ram Pauranik " 29.1.1987 'S'
59. Sri Kaika Prasad Singh Psychology 4.10.1983 'S'
60. Sri Chandreswar Mehta " 2.1.1984 'S'
61. Smt. Nita Kumari Sinha " 19.1.1986 'S'
62. Sri Ramesh Kumar Agrawal " 14.9.1986 'S'
63. Sudhanshu Tiwari " 12.2.1987 'S'
64. Sri R.K. Dwivedi Anthropology 20.11.1983 'S'
65. Sri Dinesh Kumar " 10.4.1986 'S'
66. Sri Ardhendu Shekhar " 25.7.1986 'S'
67. Sri Kedar Nath Singh " 12.2.1987 'R-I'
68. Sri Dharam Chand Lal Agarwal Commerce 15.7.1983 'S'
69. Sri Kailash Nath " 25.1.1984 'S'
70. Sri Shyam Bihari Prasad Gupta " 24.2.1986 'S'
71. Sri Surendra Kumar Pandey " 5.9.1986 'S'
72. Sri Satish Kumar Gupta " 12.1.1987 'S'
73. Sri Sanjeev Chaturvedi " 12.2.1987 'S'
74. Sri Suraj Dev Prasad " 12.2.1987 'S'
75. Sri Ashwini Kumar Vaidya " 12.2.1987 'S'
76. Sri Birendra Kumar Sociology 26.8.1986 'S'
77. Sri Kameshwar Singh " 12.2.1987 'R-I'
78. Sri Ajay Prasad Botany 4.8.1984 'S'
79. Sri Brajesh Kumar Sinha " 26.6.1985 'S'
80. Sri Jashbir Bagga " 19.1.1986 'S'
81. Sri Binod Singh " 12.2.1987 'S'
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82. Sri Nathuni Pandey Mathematics 14.8.1984 'S'
83. Sri Uday Kumar " 9.9.1985 'S'
84. Sri Ram Vilash Azad " 6.2.1986 'S'
85. Sri B.P: Pandey Chemistry 2.7.1985 'S'
86. Sri Sant Kishore Prasad " 14.9.1985 'S'
87. Sri Sushil Kumar Sinha " 12.11.1986 'S'
88. Sri Raja Ajit Kumar " 12.2.1987 'S'
89. Sri K.C. Jha Physics 13.7.1986 'S'
90. Sri R.N. Tewari " 29.1.1987 'S'
91. Sri Sunil Kumar Singh " 12.2.1987 'S'
92. Sri Sunil Kumar " 12.2.1987 'S'
93. Sri D.P. Pandey. Zoology 17.2.1985 'S'
94. Smt. Ambalika Prasad " 19.1.1986 'S'
95. Smt. Shobha Rani " 12.2.1987 'S'
96. Sri Vijaya Bhadur Singh " 12.2.1987 'S'
97. Sri Bijaya Pandey Geology 23.11.1985 'S'
98. Sri Mrityunjay Mahto " 12.2.1987 'R-I'
S: Sanctioned Post
'R-I': Post recommended up to the cut-off date.
19. The sanctioned post since is four in numbers and which have been
shown to be occupied by Sri Ram Naresh Pathak, Sri Subarn Mahto, Sri
Ghanshyam Pandey and Sri Baij Nath Roy having been appointed on
20.07.1975, 26.07.1981, 25.06.1983 and 25.06.1985 against the
sanctioned post, respectively. While, the writ petitioner had been
appointed on 22.02.1986 under the category of post recommended upto
the cut-off date. Therefore, all the four sanctioned posts have been
occupied. The writ petitioner since was working in the Hindi faculty
contrary to the sanctioned strength, however, in the post recommended
up to the cut-off date. But the State Government has not recommended
by creating the fifth post under the sanctioned strength as would be
evident from Annexure-II A under the caption head recommendation
made by the University up to the cut-off date pending consideration
before the State Government has been shown to be NIL. Meaning
thereby, the Government has not approved the recommendation by
creating the fifth post said to be sanctioned one.
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20. The said Annexures are the part of the Justice S.C. Agrawal
Committee report. The said report has been accepted in entirety by the
Hon'ble Apex Court as would be evident from paragraph-73 of the
judgment passed in "State of Bihar & Ors. V. Bihar Rajya MSESKK
Mahasangh & Ors." (supra).
21. It needs to refer herein that the dispute since was still subsisting
therefore, the Hon'ble Apex Court in the aforesaid case has consisted one
another Committee headed by Justice S.B. Sinha (Retd.). The case of the
other similarly situated person has also been taken in to consideration in
CA No.6098/1997.
22. The occasion to make an application by claimant has been arisen on
account of the constitution of subsequent commission headed by late
Justice S.B. Sinha. The contention of the claimant made before the
Justice S.B. Sinha (Retd.) Committee was that the recommendation for
application of the subject in question was sent to the State Government
by the University prior to the cut-off date and, as such, in terms of the
Justice S.C. Agrawal Commission and the judgment of the Hon'ble Apex
Court in the case of "State of Bihar & Ors. V. Bihar Rajya MSESKK
Mahasangh & Ors." (supra) they are entitled to absorb in the service of
the University.
23. The grievance of the writ petitioner was that the writ petitioner was
absorbed w.e.f 01.06.2003 vide notification dated 05.08.2005 on
retirement of Sri Ram Naresh Pathak ignoring the fact that the writ
petitioner was eligible to hold the post since 05.12.1987.
24. The contention so raised on behalf of the writ petitioner has been
rebutted by the University by taking the ground which was brought on
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record by an affidavit that the four number of sanctioned post was for
Department of Hindi and the same had been taken into consideration in
the report of Justice S.C. Agrawal Commission wherein the reference has
been made of their recommendation made by the University on
13.11.1987, 28.11.1987 and 30.04.1988. The recommendation made by
the University after cut-off date of the college, i.e. on 31.03.1987, having
regard to the decision of the Hon'ble Apex Court in the case of "State of
Bihar & Ors. V. Bihar Rajya MSESKK Mahasangh & Ors." (supra),
cannot be taken into consideration in view of the law laid down therein as
is available at paragraph-28 thereof. For ready reference, paragraph-28 is
being referred hereinbelow:
"28. 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. (1) 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."
25. It is evident from the observation made in paragraph-28 that the
Hon'ble Apex Court has been pleased to observe that no difficulty will be
there in accepting the report of the Commission so far as List No.(i)
containing names of the employee working on sanctioned post, and List
No.(ii) containing names of the employee working on the post to which
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recommendations were sent by the University to the State Government
upto the cut-off date.
26. So far as the List No.(iii) is concerned, it has seriously been objected
to the State Government and in the opinion, there is justification for it.
27. The teachers who were appointed against the post for which
recommendations were after cut-off date or which there were no
recommendation sent by the University, can claim no right of
consideration for absorption, whatever may be the reasons for alleged
delay in sending recommendation. It has further been observed in the said
paragraph that some recommendation which could have been sent by the
University to the State Government were not submitted before the cut-off
date, none the less, on the basis of clear terms of the Government
Resolution, such appointees working on post recommended after cut-off
date can legitimately claim no right of being considered for absorption.
28. Justice S.B. Sinha (Retd.) Committee report while considering the
case of the writ petitioner wherein the ground was taken that name of the
writ petitioner appears at Sl. No.44 in Annexure-IIIA of the report and as
such, the writ petitioner ought to have been absorbed w.e.f. his date of
appointment i.e. 22.02.1986. But, after going through the affidavit of the
University, it has been referred in the said report sofar as the case of the
writ petitioner is concerned, that one post have fallen vacant due to
retirement of Dr. Ram Naresh Pathak on 31.05.2003.
29. The further observation has been made in the said report by making
reference of page no.1030 of the report of Justice S.C. Agrawal
Commission wherein reference of several letters of recommendations
dated 05.03.1980, 25.09.1981, 06.08.1985, 30.03.1987, 13.11.1987,
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28.11.1987 and 30.04.1988 have been made. The cut-off date in respect
of this college being 30.03.1987 while the letters of recommendation
have been made on 13.11.1987, 28.11.1987 and 30.04.1987 said to be
sent after cut-off date. Post of lecturer (Hindi) was recommended on
13.11.1987.
30. The Committee on the aforesaid factual background, while
considering the additional affidavit the five posts in Hindi being 5 th to
9th,, had been said to be recommended. But the same has not been
accepted by the Commission in view of the fact that the 5 th post has not
been recommended by the State Government as has been taken note by
the making reference of same as above.
31.Therefore, Justice S.B. Sinha (Retd.) Committee report has come to
the finding that since the writ petitioner has been absorbed in the service
of the University w.e.f. 01.06.2003, i.e., after the post having been fallen
vacant due to retirement of Dr. Ram Naresh Pathak.
32. The learned Single Judge has accepted the plea of the writ petitioner
and considering the fact that the writ petitioner was having the eligibility
as on 05.12.1987 has passed the direction for absorption of the writ
petitioner shifting it from 01.06.2003 to 05.12.1987.
33. The ground has been taken on behalf of the University that such
direction cannot be passed since the same has also cannot be said to be in
consonance with Justice S.C. Agrawal Commission report.
34. We have considered the aforesaid issue and again coming to the
Justice Agrawal Commission Report wherefrom it is evident that four
posts have been shown to be sanctioned in the Hindi subject as per the
Annexure-I A. The posts have also been recommended for its sanction by
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the State Government, but the State Government has not accepted the
recommendation and, as such, the 5th post of Hindi subject has not been
sanctioned as per the details furnished by making reference of the same
hereinabove.
35. The question therefore arises as to whether service of the writ
petitioner can be absorbed merely on the ground of having eligibility in
absence of the sanctioned post.
36. The law is well settled in this regard that there cannot be any
appointment contrary to the sanctioned post. The same is also the view
taken by the Justice Agrawal Commission which has been accepted in its
entirety by the Hon'ble Apex Court in the case of "State of Bihar & Ors.
V. Bihar Rajya MSESKK Mahasangh & Ors." (supra).
37. It is admitted fact as has been admitted by the learned counsel for the
writ petitioner that in the Hindi subject only four posts were sanctioned
as on 05.12.1987 and the writ petitioner was fifth one as per the tabular
chart referred herein above. The fact about four posts having been
sanctioned since is not in dispute and the writ petitioner is 5 th one in
Hindi subject, as such, there cannot be any absorption merely on the
ground of eligibility in absence of sanctioned post. However, on account
of the retirement of Dr. Ram Naresh Pathak w.e.f. 31.05.2003, the
decision has been taken by the competent authority for absorption of the
writ petitioner w.e.f. 01.06.2003.
38. The aforesaid issue has been agitated by the writ petitioner before the
Justice S.B. Sinha (Retd.) Committee that has been taken into
consideration in its entirety and based upon the fact of availability of
sanctioned post on 05.12.1987 and one post fallen vacant after
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superannuation of Dr. Ram Naresh Pathak on 31.05.2003 therefore the
decision of absorption of the writ petitioner w.e.f. 01.06.2003 has been
sustained.
39. This Court after having discussed the issues as above and after
adverting to the order passed by the learned Single Judge it has been
found therefrom that the learned Single Judge has gone only with the
issue of eligibility of the writ petitioner and considering the same to be
available to the writ petitioner the direction has been passed for his
absorption w.e.f. 05.12.1987.
40. The learned Single Judge has not taken into consideration the
availability of post said to be sanctioned which was four in number and
admittedly the writ petitioner was 5th in Hindi subject. The learned Single
Judge, therefore, has not considered the issue of non-availability of the
sanctioned post as on 05.12.1987.
41. The learned Single Judge, therefore, according to our considered
view has erred in passing such direction even in absence of availability of
sanctioned post in Hindi subject.
42. The learned Single Judge ought to have taken into consideration the
Justice S.C. Agrawal Commission report primarily the number of
sanctioned post and the writ petitioner having been in the 5th in number.
43. Further, the issue of writ petitioner has been taken into consideration
by the fresh committee headed by Justice S.B. Sinha (Retd.) Committee.
44. The learned Single Judge has further erred in interfering with the
impugned order without appreciating the findings so recorded by the
Justice S.B. Sinha (Retd.) Committee, since, the recommendation made
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by the University upto the cut-off date has also been taken into
consideration by Justice S.C. Agrawal Commission.
45. The learned Single Judge while showing interference with the order
dated 05.08.2005 has not considered the report of the Justice S.B. Sinha
(Retd.) Committee which has been decided by holding that the date of
absorption of the writ petitioner w.e.f. 01.06.2003 is proper.
46. The learned Single Judge after considering the findings so recorded
by the Justice S.C. Agrawal Commission without appreciating the fact
that the report of Justice S.B. Sinha (Retd.) Committee has not been
questioned by the writ petitioner since no specific prayers to that effect
has been made in the writ petition.
47.The writ petition being W.P(S) No.1850 of 2018 has been filed
seeking therein the following prayer:
"(a) For issuance of an appropriate writ(s), order(s) or direction(s)
to the respondents to allow the claim of the petitioners in accordance
with the report submitted by Hon'ble Mr. Justice Agarwal
Commission and the verdict of Hon'ble Supreme Court in CA no.
6098/1997 (Annex-4).
(b) For issuance of an appropriate writ, order or direction,
commanding upon the respondents to allow the claim of the petitioner
in light of judgment of Hon'ble Supreme Court of India in C.A No.
6098/2017, which they have not considered, by issuing notification
vide memo no. RU/VC/R/317/05 dated 5.8.2005 of Provisional
Absorption against recommended post based on Justice S.C Agarwal
Commission Report. (Annexure-12).
(c) For issuance of an appropriate writ, order or direction,
commanding upon the respondents to absorb petitioner from
5.12.1987 i.e., the date of eligibility as decided by Hon'ble Mr. Justice
Agarwal Commission and the verdict of Hon'ble Supreme Court in
C.A No. 6098/1997.
(d) Any other appropriate writ / writs be issued / order /orders be
passed / direction / directions be made as to this Hon'ble Court may
deem fit and proper for doing conscionable justice to the petitioners."
48.The first prayer is that absorption may be given on the basis of the
Justice S.C. Agrawal Commission report but as per the Justice Agrawal
Commission report also the writ petitioner is not entitled to be absorbed
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w.e.f. 05.12.1987 in absence of the sanctioned post. Further, the said
issue has subsequently been considered by the Justice S.B. Sinha (Retd.)
Committee wherein the writ petitioner has agitated his claim however CA
No.6098/2017 in which also the date of absorption has been found to be
proper w.e.f. 01.06.2003.
49.The writ petitioner, therefore, cannot claim the absorption on the basis
of the Justice Agrawal Commission report since the claim of the writ
petitioner has fully been considered by the subsequent Committee, i.e,
Justice S.B.Sinha (Retd.) Committee.
50. The writ petitioner was aggrieved with the decision so taken of
absorption w.e.f. 01.06.2003 then the findings so recorded along with the
conclusion by the Justice S.B. Sinha (Retd.) Committee report ought to
have been questioned by the writ petitioner.
51. The learned Single Judge has not appreciated the aforesaid aspect of
the matter and even case of the writ petitioner has been adjudicated by
Justice S.B. Sinha (Retd.) Committee, but even then the impugned
decision vide Memo No. 317/05 dated 05.08.2005 has been quashed and
set aside with a direction to absorb the writ petitioner w.e.f. 05.12.1987
which is contrary to the adjudication made by the Justice S.B. Sinha
(Retd.) Committee.
52. This Court, therefore, based upon the aforesaid reasons, that the order
passed by the learned Single Judge suffers from an error, hence, the
instant appeal is fit to be allowed, accordingly, allowed.
53. In consequence thereof, the order dated 21.12.2021 passed in W.P(S)
No.1850 of 2018 by the learned Single Judge is hereby quashed and set
aside.
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54. In the result, the writ petition being W.P(S) No.1850 of 2018 stands
dismissed.
55. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Jharkhand High Court,
Dated 08/05./2025
AFR
