Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19754 of 2012 ====================================================== 1. Ramesh Kumar S/O Late Madheshwar Sharma R/O Village + P.O.- Noawan, P.S.- Shakurabad, District- Jehanabad .... .... Petitioner/s Versus 1. Kameshwar Singh Darbhanga Sanskrit University Darbhanga Through Registrar 2. Vice Chancellor Kameshwar Singh Darbhanga Sanskrit University, Darbhanga 3. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Utsav Kumar, Adv For the Respondent/s : Mr. Satyam Shivam Sundaram, Adv ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 20-09-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "to quash memo no. 4680 dt. 19.03.2012 of Registrar, K.S.D.S., University, Darbhanga by which the salary of the petitioner along with two other teachers have been stopped and a show cause was also given and further to direct the respondent authorities to make payment of the stopped salaries from March 2012 till present date and also to make payment of salary regularly in the future." 3. Learned counsel for the petitioner has submitted that the action taken by the Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as the University) in respect of payment of salary to the petitioner who is a Lecturer in the department of Mathematics in Devbharati
Legal Reasoning
Patna High Court CWJC No.19754 of 2012 (3) dt.20-09-2013 2 Sanskrit Upshastri College, Devnagar, Gaya (hereinafter referred to as the College) an affiliated Unit of Kameshwar Singh Darbhanga Sanskrit University is wholly bad both on fact and in law. In this regard, he has explained that the petitioner is not an employee of University, inasmuch as, his appointing authority is the Governing Body of the College and therefore, his service conditions including payment of salary also have to be primarily governed by the decisions taken by the Governing Body of the College. To that extent, he has also relied on Section-59 of the Bihar State Universities Act which lays down relation of the University with the affiliated College. Proceeding further on facts, he has submitted that as a matter of fact the date on which the petitioner is said to be absent in the telephonic attendance taken by the Registrar of the University, he was actually busy in the University Office itself for submission of Upshastri
Legal Reasoning
examination forms. 4. This writ application was filed on 15.10.2012 and when it was ultimately taken up for the first time on 29.08.2013, learned counsel for the University was granted three weeks time to file the counter affidavit. The University till date has not filed the counter affidavit and now today, Mr. S.S Sundaram, learned counsel appearing on behalf of the Patna High Court CWJC No.19754 of 2012 (3) dt.20-09-2013 3 University has produced the office order dated 16.04.2013, which has been kept on record, would go to show that the University has directed for payment of salary to all the teachers, namely , Smt. Sushila Kumari, Shri Ram Dayal Sharma and Shri Ramesh Kumar, who were found to be absent in the telephonic attendance taken by the Registrar of the University. To that extent the office order dated 16.04.2013 reads as follows:- dk;kZy; vkns'k nso Hkkjrh laLd`r mi'kkL=h egkfo|ky;] nsouxj] mfPpjek] x;k esa vkns'kkuqlkj 14-03-12 dks dqylfpo ds }kjk nwjHkk"kh; fujh{k.k fd;k x;k FkkA fujh{k.k ds nkSjku dze'k%& 1- Jherh lq'khyk dqekjh] f'k{kd] 2- Jh jke n;ky 'kekZ] f'k{kd] 3- Jh jes'k dqekj] f'k{kd vuqifLFkr ik;s x;s FksA vkjksfir f'k{kd dk Li"Vhdj.k ,oa lfpo dh vuq'kalk rFkk buds vkjksiksa ij xfBr tkap lfefr dh vuq'kalk fnukad ¼20-01-13½ ds vkyksd esa vafdr f'k{kdks a ds vo:n~/k osru Hkqxrku ¼14-03-12 ls½ izkjaHk djus dh Lohd`fr nh tkrh gS lkFk gh egkfo|ky; ds lHkh f'k{kd ,oa deZpkjh dks funsZ'k fn;k tkrk gS fd 'kS{kf.kd ekgkSy dks rr~ijrk ls dk;e djsaA dqyifr ds vkns'k ls] g0@& 12-4-13 ¼MkW0 jke lkxj feJ½ izHkkjh dqylfpo Kkikad 2458&2463@13] njHkaxk] fnukad 12-4-13** 16-4-13 5. As a matter of fact in view of the aforementioned order, the petitioner gets the relief but the question remains as Patna High Court CWJC No.19754 of 2012 (3) dt.20-09-2013 4 with regard to exercise of power of the University as against the employee of the affiliated College. It is true that the University is releasing funds for payment of salary to the teaching and non-teaching employees of the affiliated Colleges for the post sanctioned under the staffing pattern as released by the State Government and therefore, has necessarily to be satisfied that such funds are not being misutilized by making payment of salary to such teaching and non-teaching employees who are not only present in the College but also performing their duties. 6. The University however cannot assume the power of appointing and controlling authority, inasmuch as, the absentee statement sent by the affiliated College either through the Principal or through the Secretary or both will have to be accepted by the University. The only thing that the University at best can do is that if it finds such report or absentee statement submitted by the affiliated College is vitiated or tainted with fraud or factually even otherwise incorrect it can issue a show cause notice to the College for withdrawing on cancelling the affiliation on the ground of not abiding the norms and the instruction of the University and also take a punitive action by cancelling the affiliation. The University however in no event can indirectly become the Patna High Court CWJC No.19754 of 2012 (3) dt.20-09-2013 5 appointing and controlling authority of the teaching and non- teaching employees of the affiliated College. The tenor of the order dated 16.04.2013 as quoted above passed by the Incharge Vice-Chancellor is therefore definitely in teeth of Section-59 of the Bihar State Universities Act. 7. This Court, therefore, would direct the Acting Vice-Chancellor of the University to place the entire matter before the Syndicate for evolving a policy as to how the University intends to secure attendance of teachers and non teaching employees in the affiliated Colleges without causing any interference in the autonomy of such affiliated Colleges. In this regard it has to be kept in mind that the Syndicate has been vested with power under Section-19 of the Act read with the Statutes to decide the cases arising out of breach of terms and conditions of affiliation by the affiliated Colleges. Thus, it will be well within the power of the Syndicate to also lay down certain terms and conditions for ensuring maintenance of academic discipline in the affiliated Colleges violation whereof will not be stoppage of payment of salary of the employees of the affiliated college but only disaffiliation of the College itself. This exercise, therefore of laying down a firm policy and guidelines must be completed by the University and its Syndicate within a period of six Patna High Court CWJC No.19754 of 2012 (3) dt.20-09-2013 6 months from the date of receipt/production of a copy of this order, so that a similar situation does not arise in future. 8. In view of the fact that the decision for payment of salary to the petitioner were already taken way back on 16.04.2013, if such payment of salary has not been made to the petitioner and two others covered by the same order dated 16.04.2013 till date, the same must be paid to them on the presentation of the absentee statement by the Governing Body/ its Secretary and/or Principal of the College within a period of two weeks from the date of receipt/production of a copy of this order. 9. With the aforementioned observation and
Decision
direction, this application is disposed of. 10. Let a copy of this order be sent to the Hon'ble Chancellor for considering the necessity of issuing a firm guideline to all the Vice Chancellors of the different Universities which may lead to restoration of autonomy of the affiliated colleges as laid down in Section 59 of the Bihar State Universities Act 1976. (Mihir Kumar Jha, J) Patna High Court Dated the 20th September 2013 A.F.R./Ranjan/-