IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7170 of 1994 NIRMALENDRA KUMAR SINGH, son of Sri Bhupendra Prasad Singh, resident of Aghoria Bazar Chowk, P.S. Muzaffarpur Town, District Muzaffarpur ... Petitioner Versus 1. BABA SAHEB BHIM RAO AMBEDKAR, Bihar University, Muzaffarpur through its Registrar 2. Vice Chancellor, Babasahab Bhimrao Ambedkar Bihar University, Muzaffarpur 3. Finance Officer, B.B.A.Bihar University, Muzaffarpur ... Respondents. with CWJC No.762 of 1995 NIRMALENDRA KUMAR SINGH, son of Sri Bhupendra Prasad Singh, resident of Aghoria Bazar Chowk, P.S. Muzaffarpur Town, District Muzaffarpur ... Petitioner Versus 1. The Chancellor, BABA SAHEB BHIM RAO AMBEDKAR, Bihar University, Raj Bhawan, Patna 2. The Vice Chancellor, Babasahab Bhimrao Ambedkar Bihar University, Muzaffarpur 3. Baba Saheb Bhimrao Ambedkar Bihar University, Muzaffarpur, through its Registrar 4. Principal, Rameshwar Mahavidyalay, P.O., P.S. and District Muzaffarpur 5. Sri Jibaneshwar Prasad Singh, son of Sri Binod Prasad Singh, resident of village Jarang Dudhi, P.S. Gayaghat, District Muzaffarpur claims to be working as Lecturer in the Department of Botany, Rameshwar Mahavidyalay, Muzaffarpur ... Respondents. with CWJC No.3659 of 1995 NIRMALENDRA KUMAR SINGH, son of Sri Bhupendra Prasad Singh, at present resident of Mohalla Gumipur, P.S. Muzaffarpur Town, District Muzaffarpur ... Petitioner Versus 1. BABA SAHEB BHIM RAI AMBEDKAR, Bihar University, Muzaffarpur through its Registrar 2. The Vice Chancellor, Babasahab Bhimrao Ambedkar Bihar University, Muzaffarpur 3. The Registrar, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur 4. The Finance Officer, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur 5. The Principal, Rameshwar Singh College, Muzaffarpur ... Respondents. -----------
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For the petitioner : Mr. S.N.Jha, Sr.Adv.,
Mr. A.K.Upadhya, Adv. &
Mr. Ashim Jha, Adv.
For the State : Mr. S.B.Kumar, S.C.16
For respondent no.5: Mr. Ashok Kumar Singh,
Sr.Adv.
Mr. Vinay Kirti Singh, Adv.
For the University : Mr. Ajay Behari Sinha,Adv.
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18. 22.6.2010 The petitioner, common in all these
three cases, has sought a direction for
payment of salary in two of them, namely,
C.W.J.C.No. 7170/1994 and C.W.J.C.No.
3659/1995, whereas in C.W.J.C.No. 762/1995
he seeks to challenge the order of
absorption of respondent no.5 on the ground
that such absorption would mean automatic
termination of the service of the
petitioner, inasmuch as the post of Lecturer
in Rameshwar Singh College, Muzaffarpur is
being claimed both by the petitioner and
respondent no.5.
It is also not in doubt that the
said College in question was an affiliated
College and was taken over by the University
in the year 1981 pursuant to a decision of
the State Government to take over 103
Colleges (3rd phase of takeover). The
condition of takeover was already formulated
by the State Government and the University
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could have taken over service of teaching
and non-teaching employees only as per the
conditions imposed by the State Government
in its decision with regard to takeover of
103 Colleges.
In this case there is an
appointment letter issued in favour of the
petitioner by the Principal of the College
which is not backed by any advertisement.
Counsel for the petitioner, however, has
stated that there was an advertisement prior
to the order of appointment issued by the
Principal of the affiliated College.
On the other hand, respondent no.5
in his counter affidavit in C.W.J.C.No.
762/1995 has categorically asserted that an
advertisement in newspaper was published
only in the month of March, 2000 and
therefore, the claim of the petitioner of
being appointed on the basis of
advertisement has been seriously questioned.
In any event when the petitioner’s
appointment is said to be made in the month
of January, 1980 by the Principal of the
College and there is a recommendation of the
College Service Commission on 13.9.1980 as
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with regard to only a leave reserved post,
the records will have to show that the
college/the commission had infact advertised
the said leave reserve post on the basis of
which the Commission would have given its
approval as is sought to be conveyed by the
document in question filed by the petitioner
showing temporary recommendation of the
College Service Commission for a period of
one year or till the availability of the
sanctioned post on which the petitioner’s
approval/ concurrence was sought to be given
by the Commission.
Counsel for the petitioner, however
has submitted that this Court is not
required to go into all these questions
because there is an order of suspension
issued by the University which was
ultimately withdrawn by the University and
that by itself will at least go to show that
after the College had become a constituent
unit of the University the service of the
petitioner had been taken over and he could
continue at least till the date of
consideration of his case for absorption by
the University which infact had rejected his
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case for being absorbed on the post and on
which respondent no.5 has been ultimately
absorbed by the University
In the opinion of this Court even
in an affiliated College the appointment of
Lecturer was well regulated by the
provisions of the Act and the Statutes
whether under 1960 Act or under 1976 Act.
Such regulation never provided for
appointment by the Principal of the College.
The next issue, therefore, would be
when the Commission also has given
concurrence on a post of leave vacancy to
the petitioner and that too for a limited
period of one year, it would be difficult to
understand that the service of the
petitioner could be ever taken over in terms
of section 4(14) of the Act read with the
condition imposed by the State Government in
the order taking over 103 Colleges in the
year 1980.
Unfortunately there is a complete
silence on the part of the University to
give any details on these aspects and in
fact there is counter affidavit on behalf of
the University explaining these aspects.
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This Court in fact would also find
it difficult to decide the question as to
whether the mark-sheet submitted by the
petitioner of his qualifying Master of
Science Examination was forged or otherwise,
inasmuch as the University while allowing
absorption of respondent no.5 through its
Absorption Committee had found the mark-
sheet submitted by the petitioner to be
forged. Counsel for the petitioner, however,
would submit that on an earlier occasion the
Absorption Committee of the University had
found some other ground and had advised the
petitioner to seek absorption under
different Statutes. The whole question in
fact would be whether the petitioner was
qualified under any of the Statutes framed
by the Chancellor for being absorbed as a
teacher of the College. This aspect again
involving question of facts can be gone into
in a graphic manner by the author of the
Statutes himself, namely, Chancellor of the
University.
The scope of enquiry to be undertaken by the Chancellor of course
unlimited u/s 9(4) of the Act being quite
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vast, it will be also open for the
Chancellor to go into the legality of
appointment of the petitioner and respondent
no.5 so as to confer him the benefit of
being absorbed in the College.
In that view of the matter, this
Court would deem it expedient that the
matter is decided by the Hon’ble Chancellor
who in exercise of his power u/s 9(4)of the
Act will examine as to whether the
appointment of the petitioner and absorption
in the College was permissible so as to
allow him to question the order of
absorption passed in favour of respondent
no.5. Since everything will depend on the
outcome of the legality of appointment/
absorption of the petitioner, the validity
of absorption order of respondent no.5 will
only be gone into after it is held that the
appointment of the petitioner was valid.
Since these writ petitions have
remained pending for a very long period from
1994 onwards, this Court would only hope
that the Chancellor would find time to
dispose of the matter as early as possible
preferably within a period of six months
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from the date of receipt/production of copy
of this order.
With the aforementioned observation
and direction, these writ applications are
disposed of.
(Mihir Kumar Jha,J.)
Surendra/