Letters Patent Appeal No.985 of 2008
With
I.A. No. 7410 of 2008
With
I.A. No.5429 of 2010
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Against the judgement and order of learned Single Judge dated 5th August 2008
passed in CWJC No. 3982 of 1993
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1. Vice-Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga
2. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga
.. .. .........Appellants
Versus
1. The Governing Body Of Jagjiwan Avodya Sanskrit College, Avodya Nagar, Amarpur
Banka through its convener Sri Mohan Mishra son of Doman Mishra, resident of village
Kabala, Police-Station Parbatta, District Khagaria, at present posted as Lecturer in Sanskrit
P.G. Bhagalpur University
2. Sachchidanand Sharma son of Shri Yadunandan Sharma, resident of village Gopalpur,
Police- Station Amarpur, District Banka
3. Vijay Singh son of Sri Jai Ram Singh, of village Vikrampur, Police Station Charia
Bariarpur District Begusarai
4. Sri Kapildeo Sharma son of Sri Harsahay Sharma of village Gopalpur Police-Station
Amarpur, District Banka .......Respondents
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For the Appellants: Mr. K. N. Choubey, Sr. Advocate
Mr. Shiwesh Chandra Mishra, Advocate
For respondent No.2: Mr. Durga Nand Jha, Advocate
For respondent No.4: Mr. Ashok Kumar Keshri, Advocate
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PRESENT
THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
R. M. Doshit, CJ.& This Letters Patent Appeal preferred under
Shiva Kirti Singh, J.
Clause-10 to the Letters Patent is directed against the
judgement and order dated 5th August 2008 passed by the
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learned Single Judge in C.W.J.C. No. 3982 of 1993. The
matter at dispute is the appointment of the respondent
No.4 – the writ petitioner as a clerk in Jagjeevan Avodya
Sanskrit College- respondent No.1 (hereinafter referred
to as „the College‟). The College is affiliated to Sri
Kameshwar Singh Darbhanga Sanskrit University
(hereinafter referred to as „the University‟). The appeal is
preferred by the Vice Chancellor and the Registrar of the
University.
2. It is not in dispute that the writ petitioner
was a student in the College. In the year1974, though a
minor, he was appointed as a clerk in the College. He
continued in service till the year 1993. In the year 1989
or there about a dispute arose whether the writ petitioner
was senior to one Vijay Singh, another clerk in the
College. The writ petitioner claimed that he was
appointed as a Head Clerk while the aforesaid Vijay
Singh, respondent No.3, was appointed as a clerk in the
year 1979. After a round of litigation the matter was
referred to the Vice Chancellor of the University. The
Vice Chancellor under his order dated 16th February
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1993 recorded the findings that on the date of his
appointment the writ petitioner was a minor; that the
College did not have a sanctioned post of Head Clerk;
that the writ petitioner had admitted that his appointment
was of 1st July 1977; that the appointment of the writ
petitioner was made without following the due
procedure. In view of the said findings the Principal of
the College was directed to terminate the service of the
writ petitioner with immediate effect. Consequently, the
service of the writ petitioner came to be terminated on
22nd February 1993.
3. Feeling aggrieved he filed CWJC No. 3982
of 1993 under Articles 226 and 227 of the Constitution
of India. In the writ petition the writ petitioner claimed
that the Vice Chancellor had not only made order against
the writ petitioner but he had also recorded findings
against the aforesaid Vijay Singh. Against Vijay Singh
the Vice Chancellor had observed; that his appointment
was of 1st July 1979 but he had produced a forged
appointment letter of 1st July 1969; that the said Vijay
Singh had manipulated a forged approval letter and had
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thus perpetrated fraud. The Vice Chancellor had directed
for termination of service of the said Vijay Singh also.
4. The petition was contested by the
University. The University supported the order of the
Vice Chancellor. The University maintained that the
College had no sanctioned post of Head Clerk. The
University contended that appointment letter of
respondent No.3 as of 1st July 1969 was doubtful; that
the appointment of the writ petitioner was illegal, made
without the sanctioned post and; that the writ petitioner
had been given due opportunity of hearing before the
Vice Chancellor. The appointment of the writ petitioner
and the respondent No. 3 was made on a non existent
post, that too without following due procedure.
5. The learned Single Judge held that “in
absence of any provision of law for the Universities in
Bihar, the provision relating to services of State
Employees would govern the field”. The learned Judge
relied upon Section 57 of the Bihar Pension Rules that
provides, “A government servant in inferior service,
shall not begin until the Government servant
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concerned attained the age of 16 years”. In view of
the said provision the learned Single Judge held that
“the service of a Government servant will count from
the date on which he attains the age of 16 years”.
Learned Single Judge held that it was unjustified to
terminate the service of the writ petitioner on the ground
that the writ petitioner was below 18 years on the date of
his appointment. Learned Single Judge took into account
25 years of service the writ petitioner had rendered with
the College and that the order of termination of service
was made without notice to the writ petitioner. In view
of the said findings the learned Single Judge quashed the
order of termination of service dated 22nd February 1993.
The writ petitioner was allowed to be continued in
service as a clerk with consequential reliefs. Therefore,
the present appeal.
6. The facts stated hereinabove are not in
dispute. We are informed at the Bar that the college does
not have a sanctioned post of a Head Clerk and that
pending the writ petition a peon in the College has been
promoted as a Clerk and he has been serving as a clerk
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till the date.
7. In view of the above facts, it is indisputable
that the writ petitioner had served the college for more
than 20 years and that his service was terminated
unceremoniously, following the order of the Vice
Chancellor. Though we do not agree with the view
expressed by the learned Single Judge that in absence of
the rules to the contrary, provisions relating to the
services of the State Employees shall apply. In our view,
unless the University had adopted the rules governing the
State employees, such rules cannot apply to the
employees of the University as a matter of course. We
also do not agree with the interpretation of Section 57
put forth by the learned Single Judge. The said Section
should only mean that no person can be employed in
inferior service of the State Government unless he has
attained the age of 16 years (as it stood then).
8. But we agree with the view that notice to
the writ petitioner was required to be given before his
service was terminated. In view of the lapse committed
by the College and the fact that writ petitioner had
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rendered more than 20 years of service, we confirm the
order of the learned Single Judge setting aside the order
of termination of service of the writ petitioner. We are,
however, inclined to modify the reliefs granted by the
learned Single Judge.
9. In view of quashing of the termination
order dated 22nd February 1993 the writ petitioner Sri
Kapildeo Sharma is entitled for reinstatement in service.
The College will, within six weeks from today, reinstate
the writ petitioner in service. The period from the date of
termination of service of the writ petitioner till the date
of his reinstatement in service will be treated as the
period of Extra Ordinary Leave without pay. The
consequences shall follow. In the event the College fails
to reinstate the writ petitioner in service as aforesaid, the
writ petitioner will be entitled to pay and allowances
commencing from 10th August 2010.
10. In view of appointment of Umakant
Choudhary a peon in the College as the Office Clerk, the
College and the University will be at liberty to create a
supernumerary post of Office Clerk to accommodate the
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writ petitioner. The College will be at liberty to approach
the State Government for creation of supernumerary post
of Office Clerk and for release of the salary grant in
respect of the writ petitioner.
11. Subject to the above directions, the Letters
Patent Appeal is disposed of.
12. Interim applications stand disposed of.
(R. M. Doshit, CJ.)
Patna High Court (Shiva Kirti Singh, J.)
The 29th June, 2010
NAFR/BKS