Balram Pandey vs The State Of Bihar And Ors
2023 Latest Caselaw 566 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.250 of 2019
     ======================================================

Balram Pandey Son of Late Dhanushdhari Pandey, Resident of Village- Jaitiya, P.O.- Jaitiya, P.S.- Chanpatiya, District- West Champaran.

... ... Petitioner/s Versus

1. The State Of Bihar and Ors

2. The Additional Secretary, Education Department, Govt. of Bihar, Patna.

3. The Director, Higher Education, Education Department, Govt. of Bihar, Patna.

4. The Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga through its Vice Chan

5. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga.

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

7. The Secretary, Harihar Sanskrit College, Bakulahar Math, Chanpatiya, District- West Champaran.

8. The Principal, Harihar Sanskrit College, Bakulahar Math, Chanpatiya, District- West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 808 of 2019 ======================================================

1. Ghanshyam Jha S/oj Late Harikant Jha Resident of Village-Maranchi Khurd,P.S. Bachhawara,Dist.-Begusarai,At present posted as Assistant Professor in Sahitya Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

2. Indradeo Jha S/o Late Kamdev Jha Resident of Village-Dhuriakha,P.S.

Mufasil (Samastipur),dist.-Samastipur,At present posted in Histrory Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

3. Rudranand Jha S/o Late Visheshwar Jha Resident of Village-Hulash,P.s.

Raghopur,Dist.-Supoul. At present posted as Assistant Professor in Vyakaran Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

4. Raj Kumar jha S/o Late Gangadhar Jha Resident of Village-Rahimpur rudouli,P.S.Mufasil (Samnastipur) Dist.-Samastipur.At present posted as Assistant Professor in Economics Department of Saraswati Bilash Sanskrit College Shokahara,Barouni,Begusarai

5. Chandrabhushan Trivedi S/oj Late Krishna Nand Trivedi Resident of Village-Madhurapur,P.s. Teghra,Dist.-Begusarai.At present posted as Assistant Professor in Sanskrit College Shokahara,Barouni,Begusarai

6. Narayanj Upadhyay S/o Ramprapannacharaye, Resident of Village- Patna High Court CWJC No.250 of 2019 dt.01-02-2023

Basaukaia,P.S. Sikroul Lakh,dist.Buxar.At present posted as Assistant Professor in Sahitya Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

7. Vashistha Narayan Ojha S/o Late Ramchandra Ojha Resident of Village-

Gadhiyan,P.S. Sikroul Lakh,Dist.-Buxar. At present posted as Assistant Professor in Political Science Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

8. Hari Narayan Pandey S/o Late Rampujan Pandey Resident of Village-

Geruabandh, P.S. Itarhi, Dist.-Buxar. At present posted as Assistant Professor in Hindi Department of shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

9. Chhavinath Tripathi S/o Late Mahesh Tripathi Resident of Village-

Chikhuriya,P.s. Chenari,Dist.-Rohtas. At present posted as Assistant Professor in Vyakaran Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

10. Daya Shankar Tiwari S/o Late Raghunath Tiwari Resident of Village-

Tiwaripur,P.S. Barisar,Dist.-Gajipur(U.P.). At present posted as Assistant Professor in Sanskrit Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

11. Raghu Nandan Jha S/o Late Dasharath Jha Resident of Village-

Jhandapur,P.S. Bihpur,Dist.Bhagalpur. At present posted as Assistant Professor in Vyakaran Department of Goswami Lakshminath Madhusudan Sanskrit College Bangawan,Saharsa.

12. Bal Ram Jha S/o Late Budhan Jha Resident of Village-Lalmanpatti,P.S. Ratanpur,Dist.Supoul. At present posted as Assistant Professor in Jyotish Department of Goswami, Lakshminath Madhusudan Sanskrit College,Bangawan,Saharsa

13. Hari Mohan Khan S/o Late Ramsundar Khan Resident of Village-

Bangawn,P.S. Bangawn,Dist.Saharsa. At present posted as Assistant Professor in Maithili Department of Goswami Lakshminath Madhusudan Sanskrit College,Bangawan,Saharsa

14. Gulab Chandra Mishra S/o Late Bhallar Mishra Resident of Village-Lagma Rambhadrapur,P.S. Sakatpur,Dist.-Darbhanga. At present posted as Assistant Professor in Sahitya Department of Kirti Narayan Kamakhya Sanskrit College Maharail,Madhubani

15. Khelanath Jha S/o Late Medhanath Jha Resident of Village-Raiyam,P.S. Bhairawsthan,Dist.Madhubani. At present posted as Assistant Professor in English Department of Kirti Narayan Kamakhya Sanskit College Maharail,Madhubani

16. Nagedndra Kumar Jha S/o Late Rameshwar Jha Resident of Village-

Ranipur,P.S. Benipatti,Dist.Madhubani. At present posted as Assistant Professor in Engilish Department of Devshnakar Haldhar Chaudhary Sanskrit College Chanpura,Madhubani

17. Shivchandra Jha S/o Late Maneshwar Jha Resident of Village-Sarisav,P.S. Benipatti,Dist.Madhubani. At present posted as Assistant Professor in Vyakaran Department of Devshankar Haldhar Chaudhary Sanskrit College Chanpura,Madhubani Patna High Court CWJC No.250 of 2019 dt.01-02-2023

18. Pramod Kumar Jha S/o Late Ramlakhan Jha Resident of Village-Piprahi Punarwas,P.S. Purnahiya,Dist. Sitamadhi. At present posted as Assistant Professor in Political Science Department of Gurukul Sanskrit College Bairgania,Sitamadhi.

19. Neelambar Jha S/o Late Rewati Kant Jha Resident of VillageTelhara Kala,P.s. Kundwa Chaipur,Dist.-East Champaran. At present posted as Assistant Professor in Sahitya Department of Gurukul Sanskrit College Bairgania,Sitamadhi.

20. Suresh Mishra s/o Late Eknath Mishra Resident of VillageGharwara,P.S. Supi,Dist.-Sitamarhi. At present posted as Assistant Professor in Sahita Department of Gurukul Sanskrit College Bairgania, sitamarhi.

21. Umanath Rai S/o Late Gangadhar Rai Resident of Village-Dharha,P.S. Rosera,Dist.-Samastipur. At present posted as Assistant Professor in Vyakaran Department of Sanskrit College Rosera (Samstipur) ... ... Petitioner/s Versus

1. The State Of Bihar through its Principal Secretary Human Resource Development Department Govt. of Bihar,Patna

2. The Director Higher Education Department Govt. of Bihar, Patna

3. The Kameshwar Singh Darbhangaj Sanskrit University, Darbhanga through its Registrar

4. The Vice -Chancellor Kameshwar Singh Darbhanga Sanskrit University,Darbhanga

5. The Registrar, Kameshwar Singh Darbhanga Sanskrit University,Darbhanga ... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 250 of 2019) For the Petitioner/s : Mr. Prashant Sinha, Adv.

Mr. Satish Kumar Pandey, Adv.

       For the State             :       Mr. Madanjeet Kumar- Gp20
       For the University        :       Mr. Sanjay Singh, Sr. Adv.
                                         Mr. Deepak Kumar, Adv.

(In Civil Writ Jurisdiction Case No. 808 of 2019) For the Petitioner/s : Mr. Sanjeev Kumar Jha, Adv. For the University : Mr. Sanjay Singh, Sr. Adv.

Mr. Binay Kumar Singh, Adv.

       For the State             :       Mr. Kameshwar Kumar, GP 17
                                         Mr. S.K. Ranjan, AC to GP 17

CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA

ORAL JUDGMENT

Date : 01-02-2023

1. The petitioners by way of this writ petition have prayed for

quashing of the letter dated 23.09.2018, whereby the Education Patna High Court CWJC No.250 of 2019 dt.01-02-2023

Department, State of Bihar has refused to release the grant for

the teachers who were working in the various colleges under the

Sanskrit University and were appointed by the University. In

C.W.J.C. No. 808/2019, the prayer has been made to provide

release of salary of petitioners since June 2011 which has been

withheld by the authorities concerned inspite of several

proposals made by the University concerned and reminder sent

to the State Authorities.

2. Brief facts which required to be noticed are as under :-

In C.W.J.C. No. 250/2019, petitioner states that he had applied

under an advertisement issued on 21.06.1979 for the post of

Lecturer and he was appointed for a period of six months. The

appointment was approved by the University and extension was

granted till further orders with effect from 1st July 1983 vide

order dated 30th November 1983. He continued to draw salary

and University confirmed the services in terms of decision of

the syndicate vide letter dated 28.08.2010. Since February 2012,

the petitioner's salary was stopped. The Education Department

sent a letter to the University to get the recommendation of

selection committee in case of such teachers who are appointed

by the governing bodies of the respective colleges. He attained

superannuation on 31st January 2016, but did not receive salary Patna High Court CWJC No.250 of 2019 dt.01-02-2023

for want of confirmation of service in terms of Section 57 (A)

(6) vide order dated 29.02.2016. The University upon

recommendations of the selection committee regularized the

services of the petitioners with effect from 01.09.1977 but his

retiral benefits were not released. He filed C.W.J.C. No.

18751/2017 before this Court. During the pendency of the writ

petition the impugned order dated 23.09.2018 was passed and

granting liberty to the petitioner to challenge the said order, the

writ petition was disposed of and therefore the present writ

petition has been filed.

In C.W.J.C. No. 808/2019, it is stated that the petitioners had

been appointed in several faculties against the sanctioned post

of Assistant Professors in various affiliated colleges under the

Kameshwar Singh Darbhanga Sanskrit University, Darbhanga

after following due selection process. They were being granted

salary till May 2011 as per U.G.C. pay scale but their salary was

withheld by the authorities thereafter. Since June 2011, the same

has not been released. Representations were made, whereafter

the issue was taken up by the Government directing the

Education Department to release the salary from June 2011. A

C.W.J.C. No. 444/2018 was preferred by thirty seven teachers

where directions were issued to the respondents on 11.05.2018 Patna High Court CWJC No.250 of 2019 dt.01-02-2023

with following directions :-

"In view of above, the respondent-State, as well as the

University are required to proceed further and ensure

payment of salary within a maximum period of 3 months

from the date of receipt/production of a copy of this order.

It is made clear that after Annexure 13, the State cannot

take plea that the matter is pending at the level of the

University, and in view of the para 19 of the counter

affidavit of the State, the University cannot take plea that

the matter is pending at the level of the State.

In view of the development noted above, the University and

the State are required to see that the payments are made to

the petitioners both arrears as well as current within the

time frame indicated hereinabove.

With the aforesaid, the writ petition stands disposed of."

3. In spite of above directions, the respondents did not release

the salary. The Additional Secretary of the Bihar Legislative

Council also directed to release the salary vide its order dated

06.07.2018, but the same was also not complied with and an

order rejecting claim was passed on 23.09.2018, therefore fresh

writ petition was filed.

4. This Court passed an order on 20th August 2019 directing the

State to file specific affidavit with regard to the recommendation

of the University in C.W.J.C. No. 808/2019. However, the same Patna High Court CWJC No.250 of 2019 dt.01-02-2023

was not complied with. Again on 05.09.2022, this Court

directed the respondents to file the affidavit. Thereafter, an

affidavit has been filed by the Deputy Director, Higher

Education, Patna stating that the petitioners were appointed as

temporary teachers in different colleges under Section 35 (2) of

the Bihar State Universities Act 1976 which only provides for

appointment for a period of six months. The same has to be

continued only after further approval from the State. The

University in consultation with the management of the colleges

allowed them to continue the petitioners and salaries were paid

to them up to the year 2011, when it was brought to the

knowledge of the State Government the payment of salaries for

such teachers was stopped. It is further stated that so far as

amendment made under Section 57(A)(6) of the State

Universities Act is concerned the same is to extend the benefits

to teachers of affiliated colleges which are being provided grants

taking into consideration the performance of the students

appearing in the examination and the said amendment was not

meant for the teachers of deficit grant affiliated colleges. It is

asserted by the State that provisions of Section 57(A)(6) would

have no application relating to the teachers working in the

colleges which are receiving deficit grant-in-aid and therefore, Patna High Court CWJC No.250 of 2019 dt.01-02-2023

the request made by the University even after regularizing their

services was not acceptable to the State Government and the

letter dated 06.10.2022 has been placed on record to assert that

the State grant is not required to be released for such teachers

and they could not have been confirmed by the University. A

similar stand has been taken by the State in C.W.J.C. No.

250/2019.

5. Learned counsel appearing for the petitioners has invited

attention to the Section 57(A)(6) of the Bihar State

Universities Act 1976 which has been brought in force from

27th August 2015 to submit that a selection committee was

required to be formed for scrutinizing the cases of the teachers

appointed without the recommendation of the Commission prior

to 19.04.2007 in the affiliated degree colleges on the basis of the

qualifications enforced at the time of appointment of six

teachers till 31st March 2018. The petitioners who were

appointed in the respective colleges cannot be excluded from

the said provision on the basis of the nature of grant being

issued by the State Government.

6. I have considered the submission. It would be apposite to

quote the amendment made in Section 57 (A) of the Bihar

Universities Act 1976 notified as on 27th August 2015 :-

"Preamble :- Whereas, the State Government has taken a Patna High Court CWJC No.250 of 2019 dt.01-02-2023

policy to abolish the Vitta Rahit Shiksha Niti and to provide

grants to the institutions including degree colleges vide

resolution no. 1846, dated 21.11.2008. In course of

distribution of grants amongst the teachers of the affiliated.

2. Amendment in Section 57A of the Bihar Act 23, 1976 -

In the Bihar State Universities Act, 1976 (Bihar Act 23,

1976), the following new sub-section (6) shall be added

after sub-section (5) of Section 57A of Bihar Act 23 of

1976 :-

"(6) The Selection Committee, subject to this Act, will

complete the scrutiny of the cases of the teachers of

affiliated degree colleges appointed prior to 19.04.2007,

without the recommendation of the Bihar College Service

Commission on the basis of qualifications in force at the

time of appointment of such teachers upto 31.03.2017,

otherwise such appointments will not be treated valid.

Thereafter the Governing Body of the college will accept

the names recommend by the Selection Committee, which

shall be finally approved by the concerned University.

Distribution of the amount of grant sanctioned by the State

Government will be made amongst the teachers in the

concerned affiliated degree colleges by its Governing Body

upto 31.03.2017."

7. It appears that vide gazette notification of Act of 2017, the

Section 57(A)(6) was further amended and following provisions

were added. The affiliated degree colleges has been added. The Patna High Court CWJC No.250 of 2019 dt.01-02-2023

amendment which was made in 2017, was on the basis of a

Preamble which requires to be noticed. From the perusal of the

aforesaid amendments and the Preamble to the amendment

made on 4th September 2017, it is apparent that the State

Government wanted the Department to scrutinize all the cases

of all those working teachers appointed without the

recommendation of the Bihar College Service Commission

without making any distinction between those who were

receiving different kinds of grants namely the deficit grant or

the grant against performance. It is noticed that the Vitta Rahit

Shiksha Niti have been abolished by the State Government and

therefore, no distinction could have been drawn by the State

Authorities in between the teachers who were appointed in

colleges which were receiving different types of grants. This

Court, further finds that the University has in terms of

provisions of Section 57 (A) exercise its power and scrutinize

the cases of the petitioners and found them fit to be confirmed

on their post. Recommendation for releasing of grant was sent

to the State Government vide letter dated 25 th March 2019

informing that the teachers have been duly recommended for

release of the salary. Opinion of the Additional Advocate

General had already also been taken by the University before Patna High Court CWJC No.250 of 2019 dt.01-02-2023

sending the request for release of grant.

8. However, the Director, Education Department has rejected the

request merely mentioning the provisions of Section 57 (A)(6).

The letter does not mention any reasons for not releasing the

grant. In the circumstances, the Director, Education Department

was called by the Court to be personally present in the Court to

explain. Whereafter, she is present in the Court and states that

since there are two different kinds of grants being released by

the State Government, the provisions of Section 57(A)(6) would

apply only to the affiliated colleges which are receiving grant

for performance and not for those which are receiving grant in

deficit. It is further stated that the work of regularizing/

confirming the services of the teachers is that of the University

and not of the State Government and no approval is required

from the State Government for the said purpose.

9. Having heard the Director, this Court finds that the University

in its letter dated 25th March 2019 does not request the Director

to approve the appointments of the concerned teachers but on

the other hand, states that the University has finally approved

their services in terms of Section 57(A)(6) and requests the

Department to release their salary.

10. It appears that the State Government and their officials have Patna High Court CWJC No.250 of 2019 dt.01-02-2023

adopted a stubborn approach and there is complete non

application of mind on her part. Inspite of their being a direction

issued by this Court earlier. In C.W.J.C. No. 444/2018 dated

11.05.2018 (supra), the salary of the teachers who have worked

for the University for more than almost thirty years has been

withheld from 2011/2012. It is an admitted position that all of

them have been performing their duties till their superannuation.

Some of them are still working. Article 23 of the Constitution

of India provides as under :-

"23. Prohibition of traffic in human beings and forced

labour.

(1) Traffic in human beings and begar and other similar

forms of forced labour are prohibited and any

contravention of this provision shall be an offence

punishable in accordance with law.

(2) Nothing in this article shall prevent the State from

imposing compulsory service for public purpose, and in

imposing such service the State shall not make any

discrimination on grounds only of religion, race, caste or

class or any of them."

11. In fact no person shall be asked to perform duties without

being paid their due salary. No plausible reasons are coming

forward for not taking appropriate action at that relevant time to

remove these teachers if they were not appointed in accordance Patna High Court CWJC No.250 of 2019 dt.01-02-2023

with the law. The State Government has not passed any order

directing the University to take any steps for removing them and

in an arbitrary illegal manner contrary to the principles and

ethos of the Constitution, direction has been issued to withhold

the salary. Such action is an anaethema to the ethos of the

Constitution as laid down under Article 21 of the Constitution

of India. The action is depricated. This Court has reminded

earlier in its order dated 11.05.2018 on similar footings.

However, the State Government and its officials have failed to

perform their duties as required and have passed orders without

contesting the writ order passed by this Court in appeal. The

action is contemptuous. However, instead of proceedings to

initiate any contempt proceedings, this Court deems it

appropriate to pass specific directions in the present case

clarifying the entire position of law. Section 57(A)(6) carved

out an exception to Section 57(A). It is to take care of the

situation where the concerned colleges had appointed through

their governing body teachers in a situation where the same

were not available by the Commission. Said appointments were

approved by the concerned University and they continued to

perform their duties and were also being granted their due salary

under the U.G.C. pay scale. It appears that in 2011, 2012, the Patna High Court CWJC No.250 of 2019 dt.01-02-2023

State officials arose from a slumber and objected to their

appointment on the ground that their appointments had not been

recommended by the concerned Commission. In 2000, the issue

was taken up in Legislative Assembly and an amendment act

was brought into force by issuing a notification on 27 th August

2015 which provided for scrutiny of cases of teachers of

affiliated degree colleges appointed prior to 19.04.2007. The

distinction on the basis of different grants was not mentioned in

the amendment. However, the State Authorities have proceeded

to carve out the distinction between the two. Admittedly, the

colleges where the petitioners were performing their duties are

affiliated to the University. In view thereof, the scrutiny of their

cases was required to be done in terms of the amendment made

on 27th August 2015. It appears that the University has

conducted that exercise and has made recommendations but the

State Authorities did not accept it on a ground that the aid

released is under the deficit grant and not under the grant

against performance. Although, such a submission has been

made before this Court and in the counter-affidavit the orders

impugned do not reflect such a reason. Be that as it may, this

Court is satisfied that there is no difference mentioned in the

provision added to Section 57(A) vide notification dated 27th Patna High Court CWJC No.250 of 2019 dt.01-02-2023

August 2015 and no distinction can be drawn between the

teachers who are appointed without recommendation of the

Bihar College Service Commission for the purpose of

scrutinizing their cases or for the purpose of releasing the grant.

Such an approach adopted by the State Government has resulted

in unnecessary litigation before this Court. The action of the

State is found to be wanting and in view of above, the impugned

orders passed by the respondent dated 23.09.2018 as well as the

orders passed subsequently dated 06.10.2022 by the Director are

quashed and set aside with further direction to release the grant

to the concerned University for further distribution of salary and

other allowances to the petitioners. Those who have retired shall

also be granted their due pensionary benefits in terms of the

U.G.C. pay scales. The exercise shall be conducted positively

within a period of one month from today.

12. The writ petition stands allowed.

(Sanjeev Prakash Sharma, J) Sachin/-

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