Patna High Court
Namonath Thakur vs The State Of Bihar on 25 February, 2025
Author: Anjani Kumar Sharan
Bench: Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8364 of 2023
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Namonath Thakur S/o Mayanand Thakur, Resident of Village - Sarara, P.O.
Sonpatahi, P.S. - Babubarhi, District- Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Department of
Education, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Department of Education, Govt. of Bihar
Patna,
3. The Director, Higher Education, Govt. of Bihar, Patna.
4. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University,
Kameshwar Nagar, Darbhanga.
5. The Registrar, Kameshwar Singh Darbhanga Sanskrit University.
Kameshwar, Nagar, Darbhanga.
6. The Principal, Sanskrit Mahavidalaya, Madeshwar Asthan, Madhubani.
7. The Principal, Adinath Paras Mani Sanskrit College, Rahua Sangram,
Madhubani.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Vikas Kumar
For the Respondent/s : Mr.Jitendra Kumar Roy 1 ( Sc 13 )
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CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
ORAL JUDGMENT
Date : 25-02-2025
Heard learned counsels for the parties.
2. The petitioner prays for the following reliefs:
(i) For quashing of the order contained in Memo
No.3228 dated 28.10.2022 and corrigendum
contained in Memo No.3562 dated 23.11.2022,
issued by the Respondent No.3 whereby and
whereunder petitioners' appointment made way
back in the year 1980 has been held illegal and
request of the University to release the amount for
payment of arrear of salary since June 2012 has
been rejected.
(ii) For holding and declaring that respondent no.3
was not authorized and competent person to hold
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
2/12
the appointment of petitioner illegal and irregular
particularly after the superannuation of the
petitioner from service.
(iii) For direction to respondent authorities to make
payment of arrear of salary from June 2012 up to
date of retirement i.e. 30.11.2022.
(iv) For direction to the respondent authorities to
fix pension of petitioner and also make payment of
the same including arrears after retirement and
gratuity to the petitioner at earliest.
(v) For direction to the respondent authorities to
make payment of all retiral dues/benefits to the
petitioner with interest.
(vi) For any other relief(s) for which the petitioner
is found entitled to.
3. Learned counsel for the petitioner submits that the case of
the petitioner is that he was appointed as Second Lecturer in
Literacy subject after due process of selection in Sanskrit
College Madneshwar Asthan Madhubani and in this regard on
16.08.1980
information was sent to the petitioner to submit his
joining. He submitted his joining on 17.08.1980 in this regard to
the Principal of Sanskrit College Madneshawar Asthan,
Madhubani issued certificate vide Letter No.110 dated
17.08.1980 informing to the Registrar of the Kameshwar Singh
Darbhanga Sanskrit University (hereinafter referred as 'the
University') and Secretary Sanskrit College, Madneshwar
Asthan.
4. The University gave its approval vide letter contained in
Memo No.2784 dated 16.09.1982 for appointment of the
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
petitioner for three month on the pay scale of Rs.510-1155 for
temporary basis. Time to Time extension was granted by the
University on appointment of the petitioner. Lastly, vide letter
contained in Memo No.727 dated 29.11.1983 the services of the
petitioner was extended from 01.07.1983 till further order in the
said Madneshwar Sanskrit College, Madhubani.
5. The University in its meeting held on 08.07.2000 made
recommendation to absorb the services of several lecturer by the
internal absorption Committee. In this regard letter was issued
on 09.07.2000. The College of the petitioner became
Constituent College of the University on 28.02.1982. Therefore,
the university published a list of lecturer on 09.07.2000, as who
were working in different Colleges, when those Colleges
become Constituent. The aforesaid list indicated the name of
College, name of Teachers, date of joining, date and number of
letter by which post was sanctioned date of advertisement, etc.
the name of Petitioner finds figures in the said list.
6. He further submits that as per the criteria and process of
selection and absorption, petitioner was discharging his duties.
He was transferred to several places by the University. While he
was posted as Lecturer of Literature at Adinath Madhusudan
Parasmani Sanskrit Maha Vidalaya, Rahua Sangram,
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
Madhubani, the University promoted the petitioner under time
bond promotion after completion of ten years of service vide
notification contained in Memo No. 1864 dated 24.02.2011 in
the light of the recommendation made by University Selection
Committee w.e.f. 01.04.1999 on pay scale of Rs. 3000 to 5000.
7. He was again transferred to Madneshawar Sanskrit
College, Madneshwar Asthan, Madhubani and the headquarter
was fixed at Rajkiyai Sanskrit College, Bhagalpur. Being the
most senior teacher, petitioner was given the charge of In-charge
Principal vide office order contained in Memo No.18775 dated
28.11.2011. Later on, the University revised the pay scale of the
petitioner and benefit of 6th pay revision was given to him.
8. He further submits that the University vide notification
contained in letter no.261/13 dated 11.01.2013 transferred the
petitioner as In-charge Prinicipal of Adinath Madhusudan Paras
Mani, Sanskrit Maha Vidyalaya Rahua Sangaram, Madhubani.
9. The registrar of the University issued office order
contained in letter No.3363 dated 15.06.2013 mentioning
therein that in the light of recommendation and decision taken
by University Selection Committee and keeping in mind of
satisfactory services of temporary teachers their services are
regularized / confirmed from the date given against their name.
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
In the said list name of petitioner is at Serial No.- 4 showing
date of regularization / confirmation as 01.04.1981.
10. He further submits that the petitioner superannuated on
30.11.2022. Accordingly, Principal of the college concerned sent
all the pension related documents to the University for fixation
of pension and other retiral benefits.
11. He further submits that though the petitioner was
discharging his duty on the place of his posting at several
places, the salary of the petitioner from June 2012 till the date of
his superannuation was not paid to him, therefore, he along with
other similarly situated persons approached this Court in
C.W.J.C. No.12290 of 2019 for direction of payment of the
aforesaid salary.
12. He further submits that the C.W.J.C. No.12290 of 2018
was heard and disposed of by this Court vide order dated
09.09.2019 with direction to the University to verify the record
and after verification if it is found that there is no illegality and
irregularity in appointment of the petitioners and the petitioners
are regularly working, the University shall ensure payment of
salary to the period the petitioners have actually worked.
Necessary decision in this regard may be taken by the
respondent at earliest preferably within a period of 60 days from
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
the date of receipt/production of a copy of this order.
13. He further submits that the University did not act upon
the direction of this Court in the aforesaid writ application,
therefore, the petitioner and others filed contempt application
being MJC No.5075 of 2019 before this Court.
14. In compliance of the order passed in C.W.J.C. No.12290
of 2018, the Vice Chancellor of the University passed an order,
where it was found that the service of the petitioner is legal,
therefore, Registrar of the University vide letter No.7873 dated
21.01.2022 made request to the Director (Higher Education),
Department of Education, Government of Bihar, Patna for
release of money so that the salary / pension of the teachers may
be made in the financial year 2021-2022.
15. He further submits that petitioner received impugned
order dated 28.10.2022 and corrigendum dated 23.11.2022
contained in Memo No.3288 and 3562 respectively whereby
and whereunder it was held that regularization and approval of
petitioner was illegal and not in accordance with law thus the
request of the university to release the money for payment of
salaries of the petitioner and others vide letter No.73 dated
21.01.2022 was rejected.
16. The University had already passed order and taken
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
decision in regard to the legality and irregularity of appointment
of petitioner and other teachers and request was made to the
State Government to release the fund for payment of salary and
other benefits to the teachers of their constituent colleges but the
State Government rejected the demand of the University vide
impugned order.
17. He lastly submits that the action of the respondent
authorities rejecting the demand of the University to release the
money for payment of salary and other benefits to the petitioner
and others similarly situated teachers is totally arbitrary and
illegal. The petitioner was also not given any notice before
passing impugned order, therefore, the order is in complete
violation of Principles of Natural Justice.
18. A counter affidavit has been filed on behalf of the State
Government. It has been stated that the pursuant to the order
passed by this Court in C.W.J.C. No.12290 of 2018, the
University passed and order on 22.09.2020 and requested the
State Government for release of fund. The State Government
called for the report from the University vide letter No.1956
dated 13.07.2022 with request to attend the meeting on
19.07.2022. The report submitted by the University relating to
the appointment of the petitioner and others were examined and
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
it was found that in view of the order passed in C.W.J.C.
No.12290 of 2018, the illegality and irregularity in the
appointment of the petitioner and others has not been examined
by the University and further the appointment of the petitioners
were made without prior approval of the State Government as
contemplated under Section 35(2) of the Bihar State
Universities Act. The Section 35(2) of the Bihar State
Universities Act, 1976 states that:-
"35. No post for appointment shall be created without
the proper 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) as is established, maintained or governed by the State
Government:
or
(b) as is established by a religious or linguistic minority;
(i) 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.
(ii) Shall either increase the pay or allowance attached to
any post or sanction any new allowance;
Provided that the State Government may by an
order, revise the pay scale attached to such post or
sanction any new allowance'
(iii) Shall sanction any special pay or allowance or
other remuneration of any kind including ex-gratia
payment or any other benefit having financial implication
to any person holding a teaching or non-teaching post;
(iv) Notwithstanding anything contained in this Act, no
College other than one mentioned in clauses (a) and (b) of
sub-Section (1) shall after the commencement of this Act,
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
appoint any person on any post without the prior approval
of the State Government.
Provided that the approval of the State Government
shall not be necessary for filling up a sanctioned post of a
teacher for a period not exceeding six months, by a
candidate possession the prescribed qualification.
(3) Any appointment or promotion made contrary to
the provisions of this Act, or Statutes, Rules of
Regulations made there under 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 Demands Recovery Act, 1914.
19. Learned counsel for the State submits that the Division
Bench of this Court in a Judgment reported in 2001 (2) PLJR
817 (Dr. Shiv Narain Yadav & Ors. Vs. State of Bihar & Ors.)
held that only mode of appointment of teachers of affiliated
college is on the basis of recommendation by the commission.
The statutory provision with regard to the mode of appointment
cannot be given go bye on the basis of a provision which is
neither permissible under Act nor has the Statutory sanction in
the sense of competency in the authority concerned to issued
such instruction.
20. He further submits that the service of the petitioner was
not regularized by the University under any of the three statutes
as referred in the Dr. Shiv Narain Yadav (Supra) case. In view
of the judgment passed in the abovementioned case no
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
regularization of a teacher can be made thereafter.
19. The State Government sanction and release grants to the
Universities for payment of salary and pension to the employees
validly appointed and working against the sanctioned post. The
request of the University for allotment of funds for payment of
salary to 43 teachers including the petitioner has been
considered by the State Government and the same has been
rejected vide order as contained in Memo No.2157 dated
21.09.2019 and the Education Department had directed the
University to remove 43 teachers including the petitioner from
service in compliance of the letter of the State Government
dated 19.09.2019.
20. He further submits that the impugned order is in
consonance with the provisions contained in Section 35(2) of
the Bihar State Universities Act, 1976.
21. A counter affidavit has also been filed on behalf of the
University. The University has submitted that the University has
approved temporary appointment of the petitioner but
appointment of the petitioner is without recommendation of
College Service Commission. That for regularization of the
services of the temporary teachers like the petitioner, the
Chancellor has approved three statutes and the service of the
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
petitioner was not regularized under those three statutes.
22. He further submits that since the Education Department
has rejected the request of the University for release of grant,
University is unable to make payment of arrears of salary to the
petitioner as the University is fully dependent on State
Government for release of grant.
23. In view of the foregoing discussions and in view of the
order passed in the Braj Kishor Singh & Ors. Vs. The State of
Bihar & Ors 1997(1) BLJR 625, admittedly, there is no
requirement to take prior approval of the State Government,
when the post is already sanctioned and the petitioner can be
said to be legally appointed as the post was advertised and he
was appointed after facing the interview for daily wages. In
view of the Full Bench judgment, Braj Kishore Singh (supra)
'post facto' approval of the State Government is not required.
24. In the result, I set aside the memo no.3228 dated
28.10.2022 and corrigendum contained in Memo No.3562 dated
23.11.2022, passed by the respondent no.3.
25. The Authorities concerned are directed to pay the monthly
pension to the petitioner and also pay the arrears of pension, if
any, within two months from the date of production of a copy of
this order.
Patna High Court CWJC No.8364 of 2023 dt.25-02-2025
26. It is made clear that the respondent no.3 will be held
responsible for non-compliance of the order within the
stipulated period.
27. With the aforesaid directions, this writ application stands
allowed.
(Anjani Kumar Sharan, J)
shikha/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.03.2025
Transmission Date NA
