Dr. Abdul Latif v. Bhupendra Narayan

Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 Nagar, Madhepura

3. The Registrar, Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura

4. The Finance Officer, Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura

5. The Principal, K.B. Jha College, Katihar, P.O., P.S. and District - Katihar .... .... Respondent/s ====================================================== Appearance: (In CWJC No.18204 of 2013 & CWJC No.20737 of 2012) For the Petitioner/s : Mr. Shashi Bhushan Kr.Manglam, Advocate. For the University : Mr. B.K.Jha, Sr. Advocate. Mr. A.Kumar, Advocate For the respondent no. 5: Mr. Mayanand Jha, Advocate. Mr. Bipin Bihari Singh, Advocate. : Mr. Nagendra Sharma, A.C. to G.P. 8 For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 11-12-2013 Heard learned Counsel for the parties. In both the writ applications, the petitioner, claiming to be an Associate Professor in the Department of Botany, is basically aggrieved of the actions/orders of the State Government and the University including the Principal of K. B. Jha College, Katihar (hereinafter referred to as „the College‟) as with regard to payment of his arrears and current salary. To make thing more clear, it would be necessary to extract the reliefs sought by the petitioner in the writ application, CWJC No. 20737 of 2012, which reads as follows: “(i) for issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of salary to the petitioner for the month of July, 2012 to September, 2012, which has already been paid to other teacher of the College but despite grant of fund by the State Government and the Respondent University, the Respondent no. 5 has mentioned “Zero” salary against the name of the petitioner in the statement which he had 3 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 forwarded to the Bank for payment of salary to the teachers of K.B.Jha College, Katihar. (II) For a declaration that if the petitioner is discharging his duties uninterruptedly in between the period July, 2012 to September, 2012, he also entitled for payment of salary and the respondent no. 5 is not competent to withhold it, if there is no order of any competent authority withholding the salary of the petitioner for the aforesaid period and if sufficient grant has been made available to the respondent no. 5 for payment of salary to the petitioner also.” It has to be noted that during pendency of the writ application, CWJC No. 20737 of 2012 which was filed on

02.11.2012, another writ application, CWJC No. 18204 of 2013, has been filed wherein the petitioner has sought following relief: “(I) For issuance of an appropriate writ the nature CERTIORARI for quashing the letter dated 06.08.2013 issued under the signature of the respondent no. 5 and contained in his letter no. A/C – 70/13 dated 06.08.2013 whereby and whereunder he has been pleased to communicate the reasons to the petitioner for withholding his salary from March, 2013 till date. (II) For issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the respondent Authorities for payment of salary to the petitioner for the month of July, 2012 to September, 2012 and March, 2013 and onwards which has been illegally withheld by the respondent no. 5 though the petitioner is working on his post and the State Government as also the University has already released funds to the respondent no. 5 for payment of salary to the petitioner also. (III) For a declaration that when after the Hon’ble Agrawal Commission recommendation and pursuant to the direction of the Hon’ble Supreme Court in the case of State of Bihar Versus Bihar Rajya M. S. E. S. K. K. Mahasangh if the service of the petitioner has been regularized by the University vide Notification contained in memo no. 73 dated 17.01.2006 and the notification of the University still holds good, the respondent no. 5 has not authority to withheld the salary of the petitioner if the petitioner has been working on his post and State Government as also the Respondent University has already allowed sufficient fund to the respondent no. 5 for payment of salary of the petitioner.” Mr. S.B.K.Manglam, learned counsel appearing on behalf of the petitioner in both the writ applications, has submitted that once the issue, relating to absorption of service of the petitioner, was not only recommended by Justice S. C. Agrawal Commission but also acted upon by the University by issuance of a formal Notification of absorption, he could have been denied the benefit of such absorption which essentially includes payment of 4 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 arrears and current salary. To that extent, he has also relied on the recommendation of the Agrawal Commission showing petitioner to be entitled for absorption against a sanctioned post of Lecturer in the Department of Botany in the College. He has further extended his submission by assailing the action of the Principal of the College, who according to him, has been unnecessarily creating problem in the matter of payment of salary. When writ application, CWJC No. 18204 of 2013, was heard on 23.10.2013 and this Court had found that the State of Bihar and its officials were not made party and thus opportunity was given to the learned counsel for the petitioner for impleading the officials of the State of Bihar as party to the writ application and two copies of the writ application were served on the learned counsel for the State. But today, when this case has been taken up, learned counsel for the State has submitted that he could not file the counter affidavit because copy of the supplementary affidavit was not served upon him. This Court fails to understand such callous/negligent attitude of the officials of the State of Bihar and in any event, the plea of non-service of supplementary affidavit could not have made any impact on this Court, had the respondent officials, State of Bihar, filed their counter affidavit to the averment made in the main writ application. The position infact gets worse improved in absence of counter affidavit on behalf of the respondent University. There is no explanation whatsoever coming from the learned counsel for the University for not filing of the counter affidavit who has simply submitted that he has not been able to receive instruction in respect of either of the two writ applications filed by the petitioner. 5 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 Let it be noted that copy of the writ application, CWJC No. 20737 of 2012, was served upon the learned counsel for the University way back on 01.11.2012 whereas copy of the second writ application, CWJC No. 18204 of 2013, was served upon the learned counsel for the University on 09.09.2013. Thus, there was sufficient time for the officials of the University also to file their counter affidavit and if they have not done so, they cannot now be allowed to keep these writ applications pending. In CWJC No. 18204 of 2013, the Principal of the College, after being issued notice, has filed his counter affidavit which goes to show that there was bona fide reason for the Principal of the College in refusing to make payment of salary to the petitioner inasmuch the letter of the University dated

04.10.2013, releasing fund for payment of arrears of salary of the teachers of the College for the period 01.01.2006 to 31.07.2010, bears a specific remarks as against the name of the petitioner that he would not be entitled for payment of any amount as his name was not included in the report of Agrawal Commission. Whether the Principal of the College, therefore, could have made payment in presence of such order of the University or not is to be adjudicated only after taking into account the service history of the petitioner. The Principal in this regard has also taken a plea that since the petitioner is not working in the College and he is claiming to be continuing in the University headquarters as a Co-ordinator in National Services Scheme (NSS), will have to be examined in the backdrop of the issue of absorption of the petitioner. It is not in doubt that the College, in question, in which the petitioner claims to be appointed as a Lecturer in the 6 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 Department of Botany, is one of the 36 constituent college of the fourth phase of the year 1986. For almost two decades, no decision could be made for absorption of the teaching and non-teaching staffs working in the colleges and ultimately it was the Apex Court which had to constitute S. C. Agrawal Commission for making recommendation for absorption. There are unimpeachable documents to show the name of the petitioner was recommended by the Agrawal Commission showing him to be the second teacher in the Department of Botany working against a sanctioned post. As a matter of fact, the working of the petitioner in the College is also not disputed inasmuch as even in the list of teachers, whose cases were screened by the Agrawal Commission, the name of the petitioner finds place against a recommended post. The report of Agrawal Commission was accepted by the Apex Court in the judgment of State of Bihar Versus Bihar Rajya M. S. E. S. K. K. Mahasangh; {2005 (1) PLJR (SC) 464}. The Apex Court, having approved the report of the Agrawal Commission in toto, had issued certain directions as with regard to issuance of formal letter of absorption in favour of the teachers whose names were recommended for absorption by the Agrawal Commission. It is also not in doubt that in terms of the order of the Apex Court, the University had issued an order absorbing the service of the petitioner by Notification dated 17.01.2006 (Annexure-12). In view of this Notification, probably, there should have no any difficulty in making payment of salary to the petitioner either arrears of salary or current salary, but then whatever has been stated by the Principal would open a new window so far it relates to the service of the petitioner. The Principal has gone on record to say that there is only one 7 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 sanctioned post of Lecturer in the Department of Botany in the College, which is being occupied by one Rabindra Nath Tripathi and as such the petitioner‟s absorption against the sanctioned post was/is not proper. Dr. Mayanand Jha, learned counsel appearing on behalf of the Principal of the College, has also submitted that as a matter of fact, this College was initially affiliated to Bihar Intermediate Council and the first post of Lecturer was sanctioned, neither in the Department of Botany nor in the Zoology, but in the Department of Biology. According to Mr. Jha, there is only one sanctioned post in the Department of Botany which is being occupied by Rabindra Nath Tripathi and therefore, the petitioner cannot claim to have been absorbed against a sanctioned post and that is why the University had given its remarks in the impugned order of petitioner‟s name not found any place in the report of the Agrawal Commission becomes relevant. Mr. Manglam, learned counsel for the petitioner, however, has refuted this submission of Mr. Jha on the ground that the State Government‟s order, contained in memo no. 1147 dated 19th October 1985, would leave nothing for speculation that there were two sanctioned posts in the Department of Botany of the College and as such there will be no scope for any confusion with regard to the petitioner being appointed against a sanctioned post as also absorbed against that post. In the considered opinion of this Court, had a counter affidavit been filed by the University and the State Government, the issue could have become easily decided inasmuch as if the Department of Zoology has got two sanctioned posts and so has the Department of Botany in the College, there could hardly be a 8 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 scope for denying the payment of salary to the petitioner after issuance of the order of absorption in the manner indicated above. It is true that the Principal of the College is circumscribed by the direction of the University and when the University has restrained the Principal by not allowing payment on the ground, the name of the petitioner being not included in Agrawal Commission‟s report, it is the State Government which alone can find out as to whether the absorption of the petitioner in the Department of Botany was permissible in terms of the finding recorded by the Agrawal Commission. Let it be noted that the State Government till date has not issued any order for denying payment of salary to the petitioner; nor has questioned the finding of the Agrawal Commission in which the name of the petitioner finds place as a fit person for being absorbed in the University‟s service against a sanctioned post vide Annexure-III A(Annexure-A/5 of the counter affidavit) under the heading “Teachers who were working on the date of conversion arranged subject-wise” as also vide Annexure- IV-A (Annexure-22 of the supplementary affidavit) under the heading “ Teaching staff who are eligible to be considered for absorption”. This Court, however, would find that there is a material discrepancy in the distribution of sanctioned post in Annexure-III A and Annexure-IV-A inasmuch as the nature of post in Annexure-III A, against the name of the petitioner, has been shown to be sanctioned on 12.05.1986 whereas such sanctioned post in case of Rabindra Nath Tripathi has been show to be with effect from 04.12.1981. In the Department of Zoology, there is one sanctioned post dated 26.03.1983 against which Ravishankar Misra is shown to have been working and Ranjit 9 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 Kumar Choudhary as also Gourikant Jha, the two teachers in the Department of Zoology, are shown to have been working against recommended post. As a matter of fact, the name of Ravishankar Misra, Ranjit Kumar Choudhary and Gourikant Jha also find place in Annexure-IV-A as the persons fit for absorption in service. As noted above, the chart of sanctioned post, prepared by the Agrawal Commission of the Department of Botany, shows only one sanctioned post whereas Department of Zoology two sanctioned posts are being shown in the chart of Agrawal Commission vide Annexure-IA & IIA (Annexure-A/5 of the counter affidavit). Apart from the three sanctioned posts, two recommended posts were shown up to

30.04.1986 in the Department of Zoology and one sanctioned post in the Department of Botany was also placed before the Agrawal Commission. Therefore, when there is already a direction in the case of Gourikant Jha vide order dated 06.09.2010 in CWJC No. 8636 of 2006 to settle his case of absorption, any order to the detriment of Gourikant Jha cannot be passed by this Court unless the State Government itself decides as with regard to availability of sanctioned post in the Department of Botany and Zoology as the entitlement of absorption of the petitioner vis-à-vis Gourikant Jha. Considering all these aspects, this Court would direct the Principal Secretary of the Education Department to consider the grievance of the petitioner as also Gourikant Jha and take a firm decision with regard to availability of sanctioned post absorption of service of the petitioner vis-à-vis Gourikant Jha after taking into account the number of sanctioned post/recommended 10 Patna High Court CWJC No.18204 of 2013 (3) dt.11-12-2013 post as on 30.04.1986 in the Department of Botany and the Zoology. While doing so, the Principal Secretary must also keep in mind the recommendation of the Agrawal Commission. It will be open for the petitioner to place any document which he would like to in support of his claim along with a copy of this order, but the Principal Secretary before taking any decision must give opportunity of hearing both, the petitioner as also Gourikant Jha. This Court, however would make it clear that while remitting the matter back to the Principal Secretary primarily on account of not filing the counter affidavit explaining the availability of sanctioned/recommended post in the Department of Botany and Zoology in the College, the recommendation of the Agrawal Commission must be respected as the same has acquired finality. If, however, any adverse decision is taken against the petitioner, the Principal Secretary of Education Department will be under obligation to give reasons. The Registrar of the University and the Principal of the College are also hereby directed to give the required assistance by way of documents and/or information relating to the teachers working the Department of Botany and Zoology including the petitioner and Gourikant Jha. Such decision by the Principal Secretary shall be taken as early as possible but not beyond the period of four months from the date of receipt of this order. With the aforementioned observation and direction, both the writ applications are disposed of. Sujit/- (Mihir Kumar Jha, J)