Patna High Court
Gopi Krishna Pathak And Ors. And ... vs Ranchi University And Ors. on 16 April, 1993
Equivalent citations: 1993(2)BLJR897
JUDGMENT Radha Mohan Prasad, J.
1. All the three writ applications have been heard together and are being disposed of by this common judgment/ order as the questions involved are identical as also the facts are; more or less, similar.
2. In the said writ applications the grievance of the petitioners is, that their salary with effect from August, 1991October, 1991 hat been withheld by the respondents without any valid reason and-thus the action; at the respondents in this regard is wholly unjustified. C. W. J. C. No. 873 of 1992 (R), a further prayer has been made for quashing of the;' order dated 18-10-1991 issued by the Registrar, Ranchi University (respondent No. 3) whereby he has issued direction to the Principal of Markham Commerce College, Hazaribagh not to make payment to such teaching and non-teaching staff whose names do not figure in the list approved by the Government and the consequential order of the Principal, as contained in Annexure 6; stopping the payment of salary of the petitioners of the said case. In C. W. J, C. No. 837 of 1992 (K), the petitioners have also prayed for quashing of the orders dated 3-1-1992, 18-1-1962 and 20-11-1992, as contained in Annexures 6, 5 and 8, respectively, issued by the University whereby the salary of the petitioners has been withheld from the month of October, 1991.
3. Later an amendment' petition has been filed on behalf of the petitioners of the first two writ applications for quashing of the order of the University dated 23rd July, 1992, annexed as Annexure 9 to both the writ applications, whereby the Principals of all the newly converted constituent Colleges under the University have been directed by the University to terminate the services of all such persons (both teaching and non-teaching) whose names do not appear in the approved list sent by the State Government in the HRD Department.
4. In short, the case of the petitioners in the first two cases is that they were appointed as Class III and Class IV employees in different posts, such as, Clerk, Laboratory Incharge Laboratory Assistant Peons etc. on different dates between 1983 and 1985 in the aforesaid Markham Commerce College by the Governing Body and, accordingly, the petitioners joined' their respective posts in the aforesaid Colleges. It is also stated by the petitioners of the first two writ applications that their appointments were made by the Governing body of aforesaid Markham Commerce College and .their services were confirmed by the Governing Body.
5 The case of the petitioners of C. W. J. C. No. 837 of 1992 (R) is that prior to 1976 the Governing Body of B. S. K. College sanctioned the posts for the College in its meeting dated 26-9-76 and created 21 posts in class III and 20 posts in Class IV and sought the approval of the University. It is also stated that their appointments were made after due advertisement and Interview, by; a selection committee which prepared a panel of selected candidates in which the names of the petitioners were included and the same was also approved by the University, whereafter they were appointed.
6. The said Colleges were taken over as constituent Colleges of the Ranchi University with effect from 31-10-1986. The petitioners claimed that after the take over of the College, the University sent the names of the employees, both teaching and non-teaching, of the said Colleges to the State Government for approval. The State Government (respondent No, 5 in C. W. J. C. No. 873 of 1992 (R) on 12th February, 1990 had issued circular which has been annexed as Annexure 3 in C. W. J. C. No. 873 of 1992 (R) to all the Universities in the State of Bihar, including the 'Ranchi University, in which the names of the approved employees of different newly constituent Colleges duly recommended by the University were also sent inviting objections. In the said circular, however, it was mentioned that if certain names ate omitted to be included in the provisional list and they are getting their salary from the concerned College, than they would continue to get the same until some final decision is not taken in their matter. It is further stated by the petitioners of the first two writ applications that their names were also sent for approval by, the University but due to some typographical error their names were not included in the approved list.
7. Counter-affidavits have been filed in all the writ applications on behalf of the University and also on behalf of the State. Their case, in short, is that the names of the petitioners did not find place in the list prepared on the basis of the recommendation of the scrutiny committee of the University and, thus, neither the University accepted them to be duly appointed employees of the College nor a direction was made for payment of their salary at that time. The University had issued specific direction to the Principal of the College as far back as on 2nd February, 1987 itself, as contained in Annexure A to the counter-affidavit, while releasing the fund to the newly converted constituent College up to January, 1987 that no payment is to be ;made to such teachers and non-teaching staff. According to them, the State Government also have not approved their names. Further, it is stated that the Vice-Chancellor also decided not to approve the appointment made by the Principal. It has been denied that the University ever made any payment to those employees who Ware not appointed on a sanctioned post and whose names had not been approved by the University and/or by the State Government. It is also state that the University, is facing, financial crimes and unable to pay salary to its regular employees regularly as it fully depend on the State Government. The University is receiving fund only for such employees who are working on approved posts and as such is unable to pay the salary of the petitioner. However if any payment has been made by the Principle, then the same is an unauthorised payment and the University shall take necessary action in this regard against the Principals.
8. Mr. A. K. Sinha, learned Counsel for the petitioners, submitted that petitioners have been working for a long time and stopping of the payment of their salary and/or termination of their services is wholly unjustified and contrary to the decision of the State Government, as contained in Annexure 3. He further submitted that the respondent-University in their case have acted arbitrarily and mala fide inasmuch as though they have been working in the College for now over eight years or more, their services are being sought to be terminated without there being any valid reason. According to the learned Counsel, in any case, the petitioners are entitled to the payment of their salary by the University for the period they have actually worked.
9. On the other hand, Mr. M. S. Anwar, learned Counsel appearing for the University, submitted that, in view of the provisions contained in Section 35 of the Bihar State Universities Act, 1976 (Bihar Act XXIII of 1976)(hereinafter referred to as the Act, ) no College other than those mentioned in Clauses (a) and (b) of Sub-section (1) of Section 35 of the Act was entitled to appoint any person on any post without the prior approval of the State Government except for filling up a sanctioned post of a teacher and that too for a period not exceeding six months, by a candidate possessing the prescribed qualification. Section 35 of the Act is as follows : -
35. No post for appointment shall be created without the prior 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 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 ether 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) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government.
(2) 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 shall not be necessary for filing up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification.
According to him, as the very appointment of the petitioners having been made without the prior approval of the State Government makes the same nullity in the eye of law and the University or the State Government cannot be added with the liability for payment of their salary. In support of this submission Mr. Anwar placed reliance to a Division Bench judgment of this Court passed in C. W. J. C. No. 868 of 1992(R) in the case of Manoj Prasad and Ors. v. Ranchi University and Anr. reported in (1993) 2 BLJR (DB)(RB), 893 wherein, more or less, in similar facts, the Division Bench of this Court held a? follows:
In the case of illegal appointments made by the Principals at the local level, if any one authorises payment of wages to them, be it the Principal, the Vice-Chancellor, Registrar or any other authority, they do so at their own risk. It is open to the University in such cases to realise the amount so disbursed from the concerned persons authorising such illegal payment, apart from any other action that may be taken against them in accordance with law.
10. From the facts of these cases it is not in dispute that both the Colleges before they became constituent were affiliated Colleges of the University and are not covered by Clauses (a) and (b} of Section 35 of the Act as it is neither established, maintained or governed by the State Government nor by a religious or linguistic minority. Further, it is not in dispute that the appointments of the petitioners were not made after taking prior approval of the State Government on the contrary the Stale Government have not approved their appointment still it is claimed that they have continued to work for a period exceeding six months.
11. In that view of the matter, the appointments of the petitioners and even continuance of the teachers amongst them beyond six months are in the breach of the mandatory provisions of Section 35 of the Act. Thus, in view of the aforesaid Division Bench Judgment of this Court that even if the Principal, Governing Body, Vice-Chancellor, Registrar of any other authority acted in the matter of their appointment/continuance or even in relation to payment of wages contrary to the aforementioned provisions contained in Section 35 of the Act, then they have done so at their own risk and that cannot confer any right in the petitioners to claim the reliefs prayed for in these writ applications.
12. Accordingly, I find that the petitioners are not entitled for any relief prayed for in these writ applications and the same are dismissed. However, in the special facts and circumstances, I would like to observe that as the petitioners are said to have worked continuously for eight years in the College, it will be open for the University to re-examine their claims and refer the matter to the State Government again and if the State Government accords its approval in terms of Section 35 of the Act, then the petitioners will be at liberty to move the appropriate authority for redressal of their grievances made in these writ applications.
Nagendra Rai, J.
13. I agree.