Nirmalendra Kumar Singh vs Babasaheb Bhimrao Ambedkar Bih on 22 June, 2010

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Patna High Court – Orders
Nirmalendra Kumar Singh vs Babasaheb Bhimrao Ambedkar Bih on 22 June, 2010
         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.

———–

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/

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