Birendra Narayan Choudhary vs The State Of Bihar And Ors
2021 Latest Caselaw 5410 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
             Civil Writ Jurisdiction Case No.7204 of 2016
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Birendra Narayan Choudhary Son of Late Ekbal Narayan Choudhary resident of Village - Kothia, Police Station - Bhairav Asthan, District - Madhubani.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Principal Secretary, Human Resources Department, Government of Bihar, Patna.

3. The Vice-Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga.

4. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga.

5. The Governing Body , Krit Narayan Kamakhya Sanskrit College, Mahrail, Madhubani through its Secreta

6. The Principal, Krit Narayan Kamakhya Sanskrit College, Mahrail, Madhubani.

... ... Respondent/s ============================================== Appearance :

     For the Petitioner/s   :     Mr. Abhinav Srivastava
                                  Mr.Akash Raj
     For the Respondent/s   :     Mr. Ajit Kumar
     For the University     :     Mr. Binoda Nand Mishra

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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 23-11-2021

1. Heard Mr. Abhinav Srivastava, the learned

counsel for the petitioner, Mr. Binoda Nand Mishra, the

learned Advocate for the respondent / University and Mr. Ajit

Kumar, learned Advocate for the State.

Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

2. This writ petition has been filed for a direction to

the respondent authorities for making payment of dues of

salary of the petitioner from April 2003 to February 2013

and 50% of salary from March 2013 to September 2015 on

which date, he superannuated from service and other

benefits which have been listed in paragraph -1 of the writ

petition.

3. Some confusion appears to have been created in

the concerned college which is an affiliated college of the

respondent / University.

4. The petitioner was appointed as a lecturer in

Economics in the year 1978 after observing the due

procedure for appointment of lecturers in a private affiliated

college. There was an another advertisement in the year

1981 for appointment of lecturer in Economics subject in

the college and the petitioner was again appointed against

such advertisement. His appointment was confirmed by the

syndicate of the University and later was approved by the

College Service Commission.

5. In the college, there are only ten sanctioned Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

posts of lecturers including that of the Principal. Out of the

said ten posts, one is reserved for English, the other for

Sanskrit and one each for Hindi and one of the subjects of

Social Science. It would also be relevant here to state that

since the college in question is a private affiliated college, it

is a deficit grant in-aid college and the State Government

releases the deficit grants for payment of salary to the

employees of the college who are appointed in accordance

with law against the sanctioned vacant posts.

6. The whole dispute began when one Jai Ram Jha

was appointed against an un-sanctioned post of Maithali

subject. He was being paid his salary against the sanctioned

post of Hindi on which one Umesh Mishra had been

appointed. Since, Umesh Mishra was not being paid his

salary, he approached this Court vide C.W.J.C. No. 5444 of

1996. In the aforesaid writ petition, Jai Ram Jha was

respondent no. 6.

7. While disposing of the aforesaid writ petition,

the Bench observed that it was nobody's case that any other

person was working against the sanctioned post of lecturer in Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

Hindi. The only dispute raised was as to whether the

petitioner therein was working against the said post or

respondent no. 6 had been working on that post. The Court,

on finding that the petitioner therein (Umesh Mishra) was

still functioning as a lecturer in Hindi, came to the

conclusion that even if the appointment of Umesh Mishra

was not regular in terms of the provisions of the Act and he

was working by way of an Ad-hoc agreement on the basis of

temporary concurrence of the College Service Commission,

the college authorities were under an obligation to pay him

the salary for the period that he had actually performed his

duties and his services were temporarily approved by the

Commission. However, while parting with the case, the

Bench further clarified that the decision and direction in

favour of Mr. Umesh Mishra will not stand in the way of

respondent no. 6 (Jai Ram Jha) for payment of his salary

against the post of lecturer in the subject Maithali "which

stood sanctioned". This side wind of an observation of the

learned Single Judge was taken as a direction for treating

the post of Maithali as a sanctioned post. Based on this Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

observation, the University stopped making payment of

salary to aforesaid Jai Ram Jha because there were only four

posts of lecturers available in four subjects out of ten in the

college, one being a subject under Social Science which was

never specified.

8. The stoppage of salary of Mr. Jai Ram Jha ( Maithali)

led him to approach the Court vide C.W.J.C. No. 4437 of

1999. A Bench of this Court while hearing that writ petition

took note of the judgment passed in C.W.J.C. No. 5444 of

1996 referred to above and concluded that he also deserved

to be paid on parity.

9. When this order was passed, the University

chose to make payment to Umesh Mishra and Jai Ram Jha

that only after stopping the payment to the petitioner who

was working on sanctioned post of Economics in the college.

10. The petitioner, thereafter, approached this Court

vide C.W.J.C. No. 9362 of 1999 seeking straightening of

records to the extent that even if the subject Maithali was

deemed to have been sanctioned, that would not have

excluded an earlier sanctioned post of Economics against Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

which the petitioner was appointed and had been working

since before. The petitioner was paid his salary till the year

2003 whereafter it was stopped because of his deemed to

have been working against on a non-sanctioned post.

11. The Bench did not agree with the arguments

advanced on behalf of the petitioner as it was of the view

that the petitioner would have been well advised to challenge

the judgment and order passed in C.W.J.C. No. 5444 of

1996 (Umesh Mishra) dated 12.01.1998. Since the

petitioner was adversely affected by judgment in that case,

he could have challenged it even without being a party to the

aforesaid judgment. The petitioner was thus given the

liberty to prefer an appeal against the order passed in

C.W.J.C. No. 5444 of 1996 with the observation that in case

the issue of limitation would ever arise, he would be

perfectly within his rights to seek condonation of such delay.

12. The reason for the petitioner approaching this

Court now is that after the dismissal of the writ petition

preferred by him (C.W.J.C. No. 9362 of 1999), the

University had constituted a Three Men committee to inquire Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

into the matter. The committee found that the petitioner had

been regularly appointed against the sanctioned post of

Economics and that he ought to have been paid his salary on

a regular basis. The committee was also of the view that the

"deemed to be sanctioned" post in the subject of Maithali by

virtue of the judgment passed in C.W.J.C. No. 5444 of

1996 be also ratified by the Government so that the

necessary payments could be made to the lecturer appointed

against the "deemed to be sanctioned" subject of Maithali.

13. Mr. Abhinav Srivastava, the learned counsel for

the petitioner has very emphatically asserted that

notwithstanding the two orders passed by this Court in

C.W.J.C. No. 5444 of 1996 and C.W.J.C. No. 4437 of

1999, there was no order or direction of treating the

sanctioned post of Economics in the concerned college to be

excluded from the list of such four subjects for which staffing

pattern had been provided and the petitioner had been

working against one such sanctioned post in the subject of

Economics. It has also been brought to the notice of the

court that the respondent / University vide its letter no. 867 Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

dated 21.06.2021 has made a request to the State

Government for sanction of Rs. 54,49, 524/- for payment of

salary to the petitioner. Another request has been made by

the University on 17.07.2021 to the State Government for

sanctioning of total number of eleven posts in the college so

as to accommodate either Maithali or Economics as the case

may be against such staffing pattern in the Sanskrit College.

14. From the last of the affidavits filed by the State

Government, it appears that the aforesaid letters of request

by the University has been considered by the Education

Department but the same has been rejected. The State

Government has gone on to direct that whoever has been

instrumental in wrong disbursement of money towards

salary be made responsible and such money be recovered

from him.

15. From the conspectus of the afore-noted

developments, it becomes absolutely clear that there never

was there any dispute with respect to the appointment of the

petitioner against the sanctioned post of Economics. He was

being paid his salary on a regular basis till 2003. Even after Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

the stoppage of his salary for good two years, the petitioner

was again paid his salary but it was with a cut of 50% so

that the balance 50% would be given to the person serving

on the post of lecturer against so called sanctioned post of

Maithali in the college.

16. What has really caught the attention of this

Court is that nowhere was the sanction of the Economics

subject was in dispute but the petitioner serving as a lecturer

in the said subject has been left totally high and dry. True it

is that according to the staffing pattern, only one subject was

sanctioned under the Social Science category. Nonetheless,

since there was no dispute with respect to the subject

Economics, no order of this Court could have been read or

interpreted in any manner which could lead to the inclination

of the consideration of Economics subject as the sanctioned

subject against which the petitioner had been working.

17. Mr. Srivastava contends that the observation

made by the Bench in the case of Umesh Mishra (C.W.J.C.

No. 5444 of 1996) was misunderstood and misinterpreted

and the claim of the petitioner was rejected in order to Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

comply with the two orders passed by this Court referred to

above in its entirety.

18. The reason for the petitioner to approach this

Court again after the dismissal of the case filed by him

seeking payment of salary is that after the order was passed

against him, the University chose to constitute a Three Men

committee to find out that correct state of affairs. The

petitioner being very sanguine and hopeful that his claim is

absolutely justified, did not approach the Division Bench as

was suggested by this Court. He further submits that the

order passed by this Court in C.W.J.C. No. 9362 of 1999

( Birendra Narayan Choudhary vs. the State of Bihar) ought

not to be taken as an impediment by this Court in passing a

fresh order after the Three Men committee report violating

the claim of the petitioner. As an alternative, it has also been

suggested that the State be directed to release funds to

meet the seventh unit in the college with a direction to the

University to make payment of salary dues to the petitioner.

It has also been argued that the State be directed to

sanction the eleventh post so that nobody is subjected to Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

any injustice. He has also reiterated that in the two

decisions passed by the Bench of this Court in C.W.J.C. No.

5444 of 1996 and C.W.J.C. No. 4437 of 1999, the

petitioner was neither a party nor the discussion in such

orders ever veered around the subject of Economics as one

of the sanctioned subjects in the Social Science category.

That being the situation, the decisions of the Court ought not

be read against him as no decision of the Court harms

anybody (actus curiae neminem gravabit).

19. However, this Court finds itself in great

constraint in overcoming the roadblock of the order having

been passed against the petitioner in C.W.J.C. No. 9362 of

1999 whereby his prayer for grant of salary on a regular

basis for his having worked against the sanctioned post till

his superannuation, has been rejected.

20. This Court, therefore, deems it appropriate to

dispose of this writ petition with a liberty to the petitioner to

approach the Division Bench of this Court in appeal against

the judgment and order passed in C.W.J.C. No. 5444 of

1996. The delay in doing so is self-explanatory and the Patna High Court CWJC No.7204 of 2016 dt.23-11-2021

petitioner, therefore would have every right to seek

condonation of such delay in preferring such appeal.

21. The petition stands disposed of with aforesaid

observation.

(Ashutosh Kumar, J)

sunilkumar/-

AFR/NAFR              AFR
CAV DATE              N/A
Uploading Date        24.11.2021
Transmission Date     N/A