Patna High Court
Shiv Shankar Jha 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.6854 of 2023
======================================================
Shiv Shankar Jha S/o Late Badrinath Jha, Gram Post-Lohana West Via
Sarisabpahi, P.S.-Bhairavaasthan, 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 Umesh Sanskrit Mahavidayalaya, Darbhanga.
7. The Principal Kalyani Mithila Sanskrit Mahavidalaya, Deep, District-
Madhubani.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vikas Kumar
For the Respondent/s : Mr. Jitendra Kr. Roy 1 (Sc13)
======================================================
CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
ORAL JUDGMENT
Date : 25-02-2025
Heard learned counsels for the parties.
2. The present writ application has been filed for the
following reliefs:-
(i) For quashing of order contained in Memo
No.3193 dated 26.10.2022 and corrigendum
contained in Memo No.3671 dated 29.11.2022
issued by the respondent no.3 whereby and
whereunder petitioners' appointment made way
back in the year 1979/1980 has been held illegal
and the request of the University to release the
amount for payment of salary of the petitioner and
others including arrears of petitioner since June
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
2/12
2012 has been rejected.
(ii) For holding and declaring that respondent no.2
was not authorized and competent person to hold
the appointment of petitioner illegal and irregular
particularly after the superannuation of petitioner
from service.
(iii) For direction to the respondent authorities to
make payment of arrear of salary of the petitioner
from June, 2012 to February 2013, June 2014 to
October 2015 and October 2017 to July 2018 i.e.
date of retirement of the petitioner.
(iv) For directing the respondent authorities to fix
pension of the 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 in the facts and circumstances
of the case.
3. Learned counsel for the petitioner submits that the case of
the petitioner is that, petitioner was appointed as Maithali
Lecturer after due process of selection, in Umesh Sanskrit
Mahavidyalaya, Tarauni vide Letter No.32 dated 22.12.1979. He
submitted his joining in the said school on 02.01.1980,
whereupon his joining was duly accepted. After appointment, he
was continuously discharging his duty. On 02.12.1999, the
Kameshwar Singh Darbhanga Sanskrit University, Kameshwar
Nagar, Darbhanga (hereinafter referred as 'the University') sent
a detailed communication regarding five teachers including the
petitioner in which every relevant details regarding the
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
3/12
petitioner was mentioned.
4. In December, 1999, petitioner was transferred from
Umesh Sanskrit Mahavidyalaya to Mithila Sanskrit
Mahavidyalaya, Deep Madhubani. The petitioner was promoted
from Lecturer to Reader as per the time bound promotion after
completion of ten years of service vide notification contained in
Memo No.3375 dated 31.03.2011 in light of the
recommendation made by the University Selection Committee
w.e.f. 01.08.1995 on pay scale of Rs.3000-5000. On 24.03.2012,
the University revised the pay scale of the petitioner and benefit
of 6th pay revision was given to him as he was Teacher of
Constituent College of the University.
5. He further submits that the Registrar of the University
issued Office Order contained in Memo No.559 dated
07.03.2013
in light of the decision taken by the University
Selection Committee that the regularization of the service of the
petitioner is confirmed w.e.f. 01.08.1985. The University vide
order contained in Memo No.827 dated 08.02.2014 appointed
the petitioner on the post of "Vershar" in Kalyani Mithila
Sanskrit Mahavidyalaya, Deep.
6. He further submits that though the petitioner was working
as Assistant Professor (Maithili) in the Kalyani Mithila Sanskrit
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
Mahavidyalaya, Deep, the payment of salary for June 2012 to
February 2013, June 2014 to October 2015 and October 2017 to
July 2018 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.
7. That the Registrar of the University vide letter no.1067
dated 19.07.2018, informed the petitioner that he is going to
attend the age of 65 years on 02.07.2018, therefore, as per the
regulation, he is going to superannuate w.e.f. 31.07.2018.
Therefore, request was made to submit all the documents with
regard to post retiral benefit so that necessary formalities may
be completed within time. The Principal of the University vide
letter no.58/2018 dated 31.07.2018 sent all the pension paper to
the University for Fixation of pension and other retiral benefits.
8. 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.
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
Necessary decision in this regard may be taken by the
respondent at earliest preferably within a period of 60 days from
the date of receipt/production of a copy of this order.
9. 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.
10. That the Principal of the concerned College vide letter
no.27/20 dated 07.10.2020, issued a certificate stating therein
that after completion of age of 65 years, petitioner has retired
from service and before retirement, the salary for the period of
June 2012 to February 2013, June 2014 to October 2015 and
October 2017 to July 2018, has not been made due to non-
availability of fund by the University.
11. He further submits that in compliance of the order passed
by this Court in C.W.J.C. No.12290 of 2018, the Vice
Chancellor of the University has passed order where it was
found that the services of the petitioner and others are legal,
therefore, the 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
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
teachers may be done in the financial year 2021-2022.
12. He further submits that petitioner received impugned
order dated 26.10.2022 and corrigendum dated 29.11.2022
contained in Memo No.3193 and 3671 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.
13. The University made several communication to the State
Government giving the relevant details related to the
appointment of the petitioner and others, therefore, the salaries
of the petitioner was being paid except the period mentioned in
para-1 of the writ application. After retirement, petitioner is also
entitled for pension and other retiral benefits but the respondent
authorities have denied the aforesaid benefits too.
14. That as per the letter of the State Government, the
appointment has been made in the college before one year of
their becoming a constituent college of the University, their
services were regularized as per direction of the State
Government. The petitioner was appointed on 02.01.1980 as he
submitted his joining on the said date and his college has
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
become constituent college of the University in the year 1982.
Therefore, in view of the aforesaid, the petitioners' appointment
is more than one year before his college became a constituent
college of the University.
15. 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.
16. 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
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
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
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,
appoint any person on any post without the prior approval
of the State Government.
Provided that the approval of the State Government
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
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.
17. 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.
18. 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
regularization of a teacher can be made thereafter.
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
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 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 petitioner was not regularized under those
Patna High Court CWJC No.6854 of 2023 dt.25-02-2025
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.3193 dated
26.10.2022 and corrigendum contained in Memo No.3671 dated
29.11.2022, 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.6854 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
