# ST A TE OF BIHAR AND ORS v. BIHAR RAJY A M.S.E.S.K.K. MAHASANGH AND ORS

- **Citation:** [2004] Supp. 5 S.C.R. 376
- **Court:** Supreme Court of India
- **Decided:** 2004-10-12
- **Bench:** Y.K. Sabharwal, D.M. Dharmadhikari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-a-te-of-bihar-and-ors-v-bihar-rajy-a-m-s-e-s-k-k-mahasangh-and-ors-20203
- **Pages:** 37

## Headnote

Service ~Absorption-Colleges affiliated to various universities taken
C over as constituent colleges under the Act of 1976-Jurisdiction of University
vis-a-vis the State Government to adjudicate upon validity of appointments in
affiliated colleges and absorption of those appointees in constituent collegesHeld: App?intments in affiliated college in normal circumstances has to be
with the prior approval of State Government in accordance with S.35-But
D subject matter of absorption of staff of the taken over institutions shall be
within exclusive jurisdiction of the concerned University in accordance with
S.4(1)(14)-0n that matter, S.35 is not a constraint on the power of the
University-No conflict between provisions of S.4(1)(14) and S.35, although
each contains a non-obstante clause-The two provisions intend to operate in
E two different situations and fields, hence, over-ride each other in the field
exclusively assigned to each-Bihar State Universities Act, 1976-Sections
4(1)(14) and 35-lnterpretation of Statutes-Harmonious constructionRequirement of-Jn case of two provisions in same Act each containing a
non-obstante clause.
F
Constitution of India, 1950-Atticle 166-0rder of State Government
formally not expressed in the name of Governor-Challenge to, by the State
itself-Validity of-Held, not valid-State being the author of that decision, it
itself cannot be allowed to resile or go back on that decision-Mere change
of the elected government does not justify dishonouring the decision of previous
G elected government-If at all the decision of the earlier Government was not
acceptable to the newly elected Government, it was open to it to withdraw or
rescind the same formally.
Interpretation of Statutes-Non-obstante clause-Meaning, object and
H
376
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH
3 77
effect of-Two provisions each containing a non-obstante clause-Mode of A
interpretation in such situation---Held: No settled principles can be applied
except to refer to the object and purpose of each of the two provisions and the
language employed in each-Harmonious construction required
Dispute concerning absorption of about 4,000 employees working on B
teaching and non-teaching posts in 40 colleges "affiliated" to various·
universities which were taken over as "constituent" colleges in accordance
with the provisions ofBihar Universities Act, 1976 arose for consideration
in the present appeal.
The aforementioned "affiliated" colleges were made "constituent
colleges" of respective universities under the Resolution of the Government
of Bihar taken in the year 1986 and implemented by the respective
universities on entering into formal agreements with the affiliated colleges
c
in the year 1987. The words 'affiliated college' and 'constituent college' D
are defined in Section 2(c) and 2(i) of the Act. Every institution recognized
and receiving privileges of the universities in accordance with provisions
of the Act and universities' statutes is called 'affiliated college' while
'constituent college' means a teaching institution maintained and
controlled by the university itself.
E
The High Court in the impugned judgment held that in accordance
with Section 4(1)(14) of the Act, the concerned Universities themselves are
empowered to take a decision on the disputes regarding the validity of the
appointments in the affiliated colleges and the absorption of those
appointees in the constituent colleges; and that in view of the non-obstante F
clause contained in proviso in section 4(1)(14), the constraints in Section
35 which provides for grant of prior approval of the State Government
to the creation and appointment to the posts in the affiliated colleges, will
have no application to absorption of existing staff of affiliated colleges
taken over by the universities on their conversion as constituent colleges. a'
The High Court rejected the contentions of the State that it alone
has jurisdiction to set up enquiries including a vigilance e

## Text

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A
ST A TE OF BIHAR AND ORS.
v.
BIHAR RAJY A M.S.E.S.K.K. MAHASANGH AND ORS.
B
OCTOBER 12, 2004
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]
Service ~Absorption-Colleges affiliated to various universities taken
C over as constituent colleges under the Act of 1976-Jurisdiction of University
vis-a-vis the State Government to adjudicate upon validity of appointments in
affiliated colleges and absorption of those appointees in constituent collegesHeld: App?intments in affiliated college in normal circumstances has to be
with the prior approval of State Government in accordance with S.35-But
D subject matter of absorption of staff of the taken over institutions shall be
within exclusive jurisdiction of the concerned University in accordance with
S.4(1)(14)-0n that matter, S.35 is not a constraint on the power of the
University-No conflict between provisions of S.4(1)(14) and S.35, although
each contains a non-obstante clause-The two provisions intend to operate in
E two different situations and fields, hence, over-ride each other in the field
exclusively assigned to each-Bihar State Universities Act, 1976-Sections
4(1)(14) and 35-lnterpretation of Statutes-Harmonious constructionRequirement of-Jn case of two provisions in same Act each containing a
non-obstante clause.
F
Constitution of India, 1950-Atticle 166-0rder of State Government
formally not expressed in the name of Governor-Challenge to, by the State
itself-Validity of-Held, not valid-State being the author of that decision, it
itself cannot be allowed to resile or go back on that decision-Mere change
of the elected government does not justify dishonouring the decision of previous
G elected government-If at all the decision of the earlier Government was not
acceptable to the newly elected Government, it was open to it to withdraw or
rescind the same formally.
Interpretation of Statutes-Non-obstante clause-Meaning, object and
H
376
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH
3 77
effect of-Two provisions each containing a non-obstante clause-Mode of A
interpretation in such situation---Held: No settled principles can be applied
except to refer to the object and purpose of each of the two provisions and the
language employed in each-Harmonious construction required
Dispute concerning absorption of about 4,000 employees working on B
teaching and non-teaching posts in 40 colleges "affiliated" to various·
universities which were taken over as "constituent" colleges in accordance
with the provisions ofBihar Universities Act, 1976 arose for consideration
in the present appeal.
The aforementioned "affiliated" colleges were made "constituent
colleges" of respective universities under the Resolution of the Government
of Bihar taken in the year 1986 and implemented by the respective
universities on entering into formal agreements with the affiliated colleges
c
in the year 1987. The words 'affiliated college' and 'constituent college' D
are defined in Section 2(c) and 2(i) of the Act. Every institution recognized
and receiving privileges of the universities in accordance with provisions
of the Act and universities' statutes is called 'affiliated college' while
'constituent college' means a teaching institution maintained and
controlled by the university itself.
E
The High Court in the impugned judgment held that in accordance
with Section 4(1)(14) of the Act, the concerned Universities themselves are
empowered to take a decision on the disputes regarding the validity of the
appointments in the affiliated colleges and the absorption of those
appointees in the constituent colleges; and that in view of the non-obstante F
clause contained in proviso in section 4(1)(14), the constraints in Section
35 which provides for grant of prior approval of the State Government
to the creation and appointment to the posts in the affiliated colleges, will
have no application to absorption of existing staff of affiliated colleges
taken over by the universities on their conversion as constituent colleges. a'
The High Court rejected the contentions of the State that it alone
has jurisdiction to set up enquiries including a vigilance enquiry for
identification and considering the absorption of only such staff of the
erstwhile affiliated colleges which had been duly appointe() with the prior H
378
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A approval of the State Government. Consequently allowing the writ
petitions filed by the Federation of employees, it issued a writ directing
the Universities to take steps and consider absorption of the existing staff
of the affiliated colleges in accordance with Section 4(1)(14).
B
On appeal by the State Government to this Court, it appointed Mr.
Justice S.C. Agrawal, a forrrier Supreme Court Judge as a one-member
Commission to go into the various controversies and disputes with regard
to absorption of employees of the erstwhile affiliated colleges in the services
of the converted constituent colleges. The Commission submitted a detailed
C report.
Dismissing the appeal, and the connected special leave petition and
contempt petition_s, the Court
HELD: 1.1. A non-obstante clause is generally appended to a section
D with a view to give the enacting part of the section, in case of conflict, an
E
overriding effect over the provision in the same or other Act mentioned
in the non-obstante clause. It is equivalent to saying that inspite of the
provisions or Act mentioned in the non-obstante clause, the provision
following it will have its full operation or the provisions embraced in the
non-obstante clause will not be an impediment for the operation of the
enactment or the provision in which the non-obstante clause occurs.
[401-G, H; 402-A)
'Principles of Statutory Interpretation', 9th Edition by Justice G.P.
F Singh - Chapter V, Synopsis IV pages 318 and 319, referred to.
1.2. When two or more laws or provisions operate in the same field
and each contains a non-obstante clause stating that its provision will
override those of any other provisions or law, stimulating and intricate
G problems of interpretation arise. In resolving such problems of
interpretation, no settled principles can be applied except to refer to the
object and purpose ofeach of the two provisions, containing a non-obstante
clause. Two provisions in same Act each containing a non-obstante clause,
requires a harmonious interpretation of the two seemingly conflicting
H provisions in the same Act. In this difficult exercise, there are involved
....
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH
3 79
proper consideration of giving effect to the object and purpose of two A
provisions and the language employed in each. [402-B, C)
Shri Swaran Singh and Anr. v. Shri Kasturi Lal, [1977) 1 SCC 750,
relied on.
1.3. However, non-obstante clauses are not always to be regarded as
repealing clauses nor as clauses which expressly or completely supersede
any other provision of the law, but merely as clauses which remove all
obstructions which might arise out of the provisions of any other law in
the way of the operation of the principle enacting provision to which the
non-obstante clause is attached. (402-E, F[
Bipathumma and Ors. v. Mariam Bibi, (1966) 1 Mysore Law Journal
162 and 165, approved.
B
c
2.1. There is no conflict in the provisions of Section 4(1)(14) and D
Section 35, although each contains a non-obstante clause. They intend to
override each other in field exclusively assigned to each. Appointments in
affiliated college in normal circumstances has to be with prior approval
of State Government in accordance with Section 35 but subject matter of
absorption of services of staff taken over shall be within exclusive E
jurisdiction of concerned university in accordance with Section 4(1)(14)
of the Act. (404-F, G)
2.2. Section 35 is applicable to all 'affiliated colleges' but does not
cover a situation at a stage when an 'affiliated college' is proposed to be
taken over as 'constituent college' by the university on the sanction or F
proposal of the State Government. The subject of taking over institution
affiliated or non-affiliated with assets, liabilities and staff is regulated by
provisions of clause 14 of Section 4(1) alone. [403-D)
2.3. Compared with Section 35 - Section 4(1)(14) has limited G
operation at a stage when university enters into an agreement with the
management or governing bodies of private institutions affiliated or nonaffiliated for taking over its management, assets, liabilities and staff. The
effect of non-obstante clause in Section 4(1)(14) is that the matter of
absorption of staff of such institution/college proposed to be taken over, H
380
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A would be within the sole power and jurisdiction of the university concerned
within whose jurisdiction the affiliated college or institution falls. On
matter of absorption of staff of taken over institutions, Section 35 requiring
prior sanction or approval of the State Government for creation of posts
and appointment, would not be a constraint on the power of the university.
B It is a different thing that the university in considering absorption of the
staff of institution taken over may give due consideration to the legality/
regularity or otherwise of a particular appointment but it would not be
inhibited by the absence of prior sanction or approval of the State as
contemplated in section 35 of the Act. This is how the two non-obstc:nte
C clauses have to be harmoniously construed and applied as giving
overriding effect to each and restrict their operation within exclusive field
assigned to each. In the matter of creation of posts and appointments in
affiliated colleges in normal circumstances, requirement of prior sanction
or approval of the State Government, as contained in Section 35, is not
D dispensed with because of the contrary provision contained in section
4(1)(14) and the latter Section is restricted in its operation to absorption
of staff of a taken over institution by the university. (405-A-E)
2.4. The two non"-obstante clauses, although slightly differently
worded one in proviso to Section 4(1)(14) and the other in Secti.on 35 of
E the Act have thus, been construed harmoniously. They operate in two
different fields - former to consideration of abso'rption of staff of taken
over colleges and the latter to affiliated colleges when they are not under
any proposal of being taken over by the university. The two provisions
being intended to operate in two different situations and fields both have
F an overriding effect on each other. That is why the Legislature has
employed a non-obstante clause in each. (406-E, Fl
3. Clause (c) to sub-section (2) of section 57 A was introduced by Act
3 of 1990 and has no retrospective application to the cases of affiliated
G co.lieges taken over as constituent colleges prior to the year 1990. The said
clause (c) to sub-section (2) of section 57 A requires further approval of
Bihar State University (Constituent Colleges)'Service Commission before
absorbing the services of teachers of the affiliated colleges converted into
constituent colleges. The aforesaid piece of subsequent legislation amen~ing
H the same Act can appropriately be taken as an aid to the interpretation
-
..
STATE OF BIHAR v. BI HAR RAJY A M.S.E.S.K.K.MAHASANGH
3 81
of the unamended provisions of the Act. The amended provisions of the A
Act is an indication that subject of absorption of staff of taken over
affiliated colleges is treated as a subject distinct from regular recruitment
to the posts in affiliated colleges which is to be made with prior sanction
or approval of the State Government as provided in section 35 of the Act.
Similarly, Sub-section (3) added to section 35 by Act 17 of 1993 is also B
prospective in application and has no adverse effect on the absorption of
the services of the teaching staff of the affiliated colleges taken over as
constituent colleges prior to 1993. Sub-section (3) applies to normal mode
of recruitment to staff (teaching or non-teaching] of affiliated colieges and
is merely reiteration of the legal position that appointments and promotion C
made contrary to the provisions of the Acts, statutes, rules and regulations
would be invalid and liable to be terminated at any time. It also provides
that any expenditure incurred by the university against such illegal,
irregular, unauthorized appointments/promotions shall be realized from
the officers found responsible for committing such illegality as a public D
demand under the provisions of Public Demand Recovery Act, 1914.
Clause (c) of section 57 A (2) introduced in the year 1990 and sub-section
(3) of section 35 introduced in the year 1993 being prospective in operation
have no application to the affiliated colleges taken over as constituent
colleges with the existing staff prior to the year 1990. Those provisions E
introduced subsequently in the year 1990 and 1993 referred to for a limited
purpose show that the Legislature has always treated differently the
normal recruitment which has to be made with approval of State
Government to teaching and non-teaching posts in affiliated colleges and
the matter of absorption of existing staff appointed against sanctioned or
non-sanctioned posts in the affiliated colleges taken over and converted
as constituent colleges. [405-F-H; 406-A-D]
4. So far as the order of the State Government directing absorption
F
of employees against posts sanctioned and recommended by the
Committee, the State being the author of that decision, merely because it G
is formally not expressed in the name of Governor in terms of Article 166
of the Constitution, the State itself cannot be allowed to resile or go back
on that decision. Mere change of the elected Government does not justify
dishonouring the decisions of previous elected Government. If at all the
decision was not acceptable to the newly elected Government, it was open H
382
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A to it to withdraw or rescind the same formally. In the absence of such
withdrawal or rescission of the decision, it is not open to the State ofBihar
and State of Jharkhand (created after reorganization of the State ofBiharJ
to contend that that decision does not bind them. [407-G, 408-C, DJ
B
5.1. The judgment of the High Court to the extent of the
interpretation placed by it on the provisions of section 4(1)(14) and section
35 with the directions issued in paragraphs 24 to 26 therein, is hereby
confirmed. (410-A]
5.2. The report of the commission of enquiry of Hon. Justice S. C.
C Agrawal[retired], is accepted and all objections filed against the said
report are rejected. (410-H, 411-AJ
5.3. The members of the staff in various affiliated colleges identified
and named in list no. (i) being appointees against the sanctioned posts shall
D be absorbed and formal order to that effect shall be issued by the
universities concerned. (411-A]
5.4. The universities shall take a decision under section 4(1)(14) of
the Act in the matter of absorption of appointees named in list no. (ii) of
E the Report of the Commission, being appointees against posts for which
recommendations were sent by the universities to the State up to the cutoff date in accordance with the decision of the State Government.
(411-B, CJ
In considering the question of absorption of appointees named in list
F no. (ii) of the report of the Enquiry Commission, the universities concerned
shall rely on the contents of the report of the enquiry commission and the
present judgment of this Court. (411-DJ
5.5. The appointees mentioned in list no. (iii), being the appointees
-G against posts for which recommendations were sent by the universities to
the State Government after the cut-off date or those working against posts
for which no recommendations were sent for approval of the State
Government, have no right of being considered for absorption - whatever
maybe the fortuitous circumstances or otherwise in the matter of not
H sending recommendations for sanction in their cases. The negative report
STATE OF BIHAR v. BIHARRAJYA M.S.E.S.K.K.MAHASANGH
3 83
of the enquiry commission with regard to list no. (iii) is accepted and the A
universities are directed to exclude all such appointees named in list no.
(iii) from consideration for absorption. [411-D-F)
5.6. Decision in individual cases, with due regard to the qualification
of each employee and corresponding statute applicable at the relevant time B
prescribing qualifications, if any, for the teaching and non-teaching posts, ·
shall be taken by the universities based on the findings in the report of
Justice Agrawal Commission and in the light of the legal position explained
above. (411-G, H; 412-A)
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 6098 of 1997. C
From the Judgment and Order dated 31.1.97 of the Patna High Court in
C.W.J.C. No. 4021 of 1995.
With S.L.P.(C) No: 18168/2002, C.P.(C)Nos. 5,53,54,83,353,363,549,82/ D
2002 and 343,377,441/2004 in C.A.No. 6098/97, l.A.Nos.102-103, 105-108,
110-113, 119, 143,146,150,154, 157, 158, 159, 173, 178, 183,188-189, 195198,201,203-204,212-215,224,234,236-237,244,247,250,273,276,278280, 286, 293. '.:.95,299, 303, 318, 320, 329, 332 [Applications for
Impleadment].
E
I.A. Nos. 114,115, 120,121-124,145,151,160,161,164,174,177, 179, 185187, 190-192, 199, 202, 208, 210, 211, 216, 217, 219, 221, 222-223, 225, 226227, 229, 231, 233, 235, 238, 241-242, 243, 246,249, 252-255, 260, 281, 288289, 290-291, 294, 297-298, 302, 305-307, 311-317, 322-328, 343, 346,, 347349, 351, 354-355, 363, 364, 367-371, 375, 377 [Applications for permission F
to file objections]
I.A.Nos. 116-118, 207, 262, 283, 345, 365 [Applications for Intervention]
I.A.Nos. 125-142, 144, 147, 149, 152, 155, 156, 162-163, 165, 167-168,
110-112, 175, 179-182, 184, 193, 205, 239, 256, 258, 264-272, 211, 284-285, G
292, 201, 308-309, 333, 360-361, 373, 374 [Application for directions]
I.A.No. 353 [Application for change of name of Advocate-on Record]
I.A.No. 304 [For substitution], I.A.No. 275 [For modification]
H
LA.No. 331 [For condonation of delay]
-''"-... ··
. ' •
384
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A
I.A.Nos. 357-358 [Applications for permission to file Addi. Documents
and exemption]
I.A.Nos. 148, 153, 166, 169, 176, 194, 200, 206, 209, 218, 220, 228,
230,232,240,245,248,251,257, 259, 261, 263, 274,283,287, 289A, 296,
B 300 [Application for exemption].
Rakesh Dwivedi, B.B. Singh, Akhilesh Kr. Pandey and Ashok Kr.
Pandey with him for the Appellant for State of Bihar.
M.L. Verma, Ashok Mathur and Rajesh Pathak with him for the
C Appellant for State of Jharkhand.
Shambhu Prasad Singh and Ms. Manjula Gupta for the Petitioner in
S.L.P.
D
Ranjit Kumar, Harish N. Salve, Raju Ramachandran, Gopal
Subramanium, L.N. Rao, A. Sharan, A.K. Srivastava, Chandra Shekhar, P.S.
Mishra, Ajit Kumar Sinha, Vijay Kumar Sinha, Pankaj Bhagat, Ashok Kumar
Singh, Saket Singh, Ms. Niranjana Singh, Shi Pujan Singh, Abhay Prakash
Sahay, Kuldip Singh, P.V. Dinesh, Sanjay K. Mishra, Abhishek Thakur, Ms .
E Nutan Mishra, Atul Jha, Nirmal Mittal, Naresh Kumar, Gopal Prasad, Arup
Banerjee, D.P. Mukherjee, Braj K. Mishra, Ms. Aparna Jha, Ranjan Kumar
Jha, Iliren Dasan, Manoj Swamp, Athar Alam, Ambar Qamaruddin, Mrs. M.
Qamaruddin, Sumit Kumar, Ashwani Bhardwaj, S.P. Sharma, AbhishekAtrey,
Shishir Singh, Prem Prakash, Ms. Sharmila Upadhyaya, K.V. Viswanathan,
F Atul Kr. Sinha, B. Raghunath, Devender Singh, M.P. Jha, R.E. Roy,
Harshvardhan Jha, Anil K. Chopra, Sunil Kumar Verma, Amresh Kumar Singh,
A.P. Mayee, Yuga! Kishore Prasad, B.S. Rajesh Agrajit, Varinder Kr. Sharma,
Pavan Kumar, P. Chandra, Ajay Amritraj, Sanjeev Kumar, N.N. Jha, Phabhat
G
Kumar, Atishi Dipankar, Rajeev Singh, Ms. Sunita R. Singh, T.Anil Kumar,
Rakesh K. Khanna, Ms. Abha R. Sharma, R.P. Singh, Swetank Shantanu,
Rajeev Bansal, A.K. Ghai, Ambhoj Kumar Sinha, Neeraj Shekhar, Mohan
Pandey, Vidya Bhushan Misra, R.D. Rathore, Dr. Kailash Chand, D.K. Thakur,
Ms. Poonam Kumari, Sanjay Jain, Ajay Choudhary, Rakesh Uttamchandra
Upadhyay, Navin Prakash, D.K. Garg, Mahendramohan Kumar Singh, Sudama
H Ojha, A.K. Tiwari, Dr. Maya Rao, R.P. Wadhwani, Tathagat Harsh Vardhan,
STATEOFBIHARv. Bll{ARRAJYAM.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 385
Mrs. Swarupa Reddy, Upendra Mishra, Amitabh Chandra Mishra, Dhruv Kr. A
Jha, C.D. Singh, S. Chandra Shekhar, Shree Prakash Sinha, Prabhash Kumar
Yadav, Dr. K.S. Chauhan, N.S. Bisht, Sunil Kumar, Himanshu Shekhar,
Shravan Singh, Sanjeev Malhotra, Mansoor Ali, Irshad Ahmad, Amit Kumar,
KS.Rana, Satish Chand Gupta, Dr. (Mrs.) Vipin Gupta, R. Nedumaran, Rajan
Dwivedi, D.K.Sinha, P. Gaur, S.K.Verma, T. Mahipal, Vikash Singh, Amrita B
Narayan, Prashant Chaudhary, Ms. V. Mohana, Anupam Lal Das, Manish
Verma, Rajnish Ranjan, Mohan Pandey, R.P. Goyal, Sunil Kumar, Mrs. Kirti
Sinha, Mrs. Sarla Chandra, Kanhaiya Priyadarshi, Krishnanand Pandeya, Mrs.
S. Usha Reddy, Rana Ranjit Singh, P.S. Jha, Amitesh Kumar, L.R. Singh, K.N.
Rai, Bharat Sangal, Manoj Swarup, K.K. Mohan, Arunabh Suman, Biswajit, C
Ashwani Kumar, Ranjeet Kumar, Harishankar, Pawan Kumar, Alok Vagreche,
Manish Singhvi, Saurabh Ajay, P.V. Yogeswaran, Manish Kumar Saran,
Santosh Kumar, Chandra Kanta Nayak, Rakesh K. Sharma, K.C. Bajaj,
Himanshu Bajaj, Anil Kumar Jha, Vijayendra Misra, Binay Kr. Das and
Samarendra Jha with them for the Respondents.
D
The Judgment of the Court was delivered by
WITH
I.A. Nos. 102-103 Para I.A. Nos. 105-108, 110-113, 119, 143, 146, 150, E
154, 157, 158, 159, 173, 178, 183, 188-189, 195-198, 201, 203-204, 212-215,
224,234,236-237,244,247,250,273,276,278-280,286,293,295,299,303,
318, .320, 329, 332 [Applications for impleadment].
DHARMADHIKARI, J. In this appeal, preferred by the State of Bihar
against the judgment date~ 3 l. l .1997 of the High Court of Patna, the dispute F
is concerning the absorption of about 4,000 employees working on teaching
. and non-teaching posts in 40 colleges affiliated to various universities which
were taken over as constituent colleges in accordance with the provisions of
Bihar Universities Act, 1976. The aforementioned affiliated colleges were
made constituent colleges of respective universities under the Resolution of G
the Government of Bihar taken in the year 1986 and implemented by the
·.respective universities on entering into formal agreements with the affiliated
colleges in the year l 987.
This appeal is being decided along with the connected special leave
petition and contempt petitions. Our decision in the present main appeal, H
386
SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R .
A which we take as a lead case, would dispose of all other connected cases and
interlocutory applications.
It is not necessary for us to go into all the facts and details as we would
be confining our decision to the legal issues raised before us.
B
The necessary factual background for the purpose of understanding the
c
legal issues raised before this court in these cases is as under:-
The State of Bihar took a decision to convert affiliated colleges of
different universities into constituent colleges of concerned universities in a
phased manner.
The words 'Affiliated college' and 'constituent college' are defined in
section 2(c) and 2(i) of the Bihar State Universities Act, 1976 [for short 'the
Act']. Every institution recognized and receiving privileges of the universities
in accordance with provisions of the Act and universities' statutes is called
'affiliated college'. 'Constituent college' means a teaching institution
D maintained and controlled by the university itself.
By letter dated 19 .8.1986, the State of Bihar conveyed its decision to
all the Vice-Chancellor of various universities in the State of converting 36
affiliated colleges mentioned in the appended list as constituent colleges.
E Three other colleges were similarly decided to be converted as constituent
colleges under decision conveyed by letter dated 03.7.1987. One minority
educational institution was also decided to be converted as constituent college.
In all thus 40 affiliated colleges were decided to be converted into constituent
colleges. In the decision conveyed by the State, the universities were instructed
in accordance with the provisions of Section 14 of the Act to pass a formal
F resolution fo_r taking over the assets and liabilities of the various affiliated
colleges falling within the respective universities and enter into formal
agreements with their governing bodies for the purpose of converting them
into constituent colleges.
In the same decision of the State Government, the universities were
G directed to obtain from each of the affiliated colleges information regarding
sanctioned teaching and non-teaching posts existing on the date of taking
over of the colleges as constituent colleges and also ascertain information
with regard to proposals for creation of additional posts in the affiliated
colleges which were received from the universities by 30.4.1986 and were
H pending with the government. The list of teachers appointed against such
. )
..:.
STA TE OFBIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 3 87
additional posts pending for approval of the State Government were also A
directed to be separately prepared for the purpose of consequential action on
the part of the State Government.
Consequent upon the above decision of the govef11ment with instructions
to the universities to take various steps for identifying the number of sanctioned
posts, the proposals for additional posts received by the universities and B
pending with the government for approval, a further decision was conveyed
by the State Government by letter dated 12.6.1987. The aforesaid subsequent
decision has created the present controversy on the claims of various categories
of teachers and non-teaching employees for absorption in the services of their
respective converted constituent colleges. By the subsequent decision contained C
in letter dated 12.6.1987, it was directed that in addition to the proposal for
creation of additional posts pending with State Government, the proposals for
approval of posts for additional subjects in the colleges which had been
received from the universities up to 30.4.1986 and pending with the
government, be also ascertained and necessary information in the prescribed
proforma be sent to the government to consider creation of posts, granting of D
affiliation to additional subjects and absorption of teachers who were appointed
against such posts. In the resolution of the government, each university was
directed to constitute a three-member committee to ascertain existing
sanctioned teaching and non-teaching posts, proposals pending for additional
posts, proposals pending for posts for additional subjects and list of various E
teachers who were working against sanctioned and non-sanctioned posts before
the cut-off date.
In implementation of the resolution of the government to convert the
40 affiliated colleges into constituent colleges formal resolutions were passed
by the governing bodies of the affiliated colleges. The three-member p
committees constituted by the universities completed their investigation for
submitting necessary information in the prescribed proforma showing
separately names of teachers and non-teaching employees working against
sanctioned posts and those working against po.sts the creation of which was
recommended by the University for sanction of the State Government.
On 17.1.1987, the Government ofBihar constituted a separate committee
headed by Chairman of Inter-Universities Board to examine the proposals
received before the cut off date i.e. 30.4.1986 for creation of posts of teachers
G
and non-teaching staff in affiliated colleges which were converted into
constituent colleges. On the report of the said Committee which were H
388
SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.
A subsequently reconstituted on 0 l .2. l 988, the State Government passed an
order to absorb employees working against teaching and non-teaching posts
but only on provisional basis because there were disputes with regard to the
claims for absorption of certain members of the staff in various colleges.
The State Government later constituted eight-member committee and
B thereafter a five-member committee to go into the question of absorption of
members of the staff in the converted constituent colleges and ascertain number
of posts duly created before the cut-off date and which were pending with the
Government for approval or sanction.
On the recommendations of the above mentioned two committees, on
C 18.12.1989, the Government of Bihar took a formal decision to provisionally
absorb teachers against sanctioned posts and posts which were recommended
for sanction by some of the universities.
It seems that with the change of elected government there was rethinking
D on the decision of the earlier government to absorb members of the staff
working against additional posts for the creation of which sanction was
awaited. Large number of employees, it was reported, got surreptitious entry
into the services of the erstwhile affiliated colleges in connivance with the
members of governing bodies of the said colleges and tried to take advantage
of conversion of those colleges into constituent colleges. A large number of
E complaints of manipulations al).d fabrication of records in affiliated colleges
were received by the Government which became a subject of hot debate in
Legislative Assembly and public.
The State Government took a decision to set up a vigilance enquiry into
the alleged malpractices adopted by the various affiliated colleges in inducting
F employees, who had not been legally appointed in various affiliated colleges
prior to cut-off date fixed in the resolution of the Government to take over
the colleges. On the setting up of the vigilance enquiry, apprehensions arose
of large scale termination and dispensation with the services of employees of
various categories of employees working on teaching and non-teaching posts
G in erstwhile affiliated colleges. The association of the employees representing
both holders of teaching and non-teaching posts appro1ched the High Court
in writ petition leading to the passing of the impugned judgment and the
present appeal. In the writ petitions, the association of the employees of the
affiliated colleges claimed a writ of prohibition restraining State and the
universities from dispensing with or terminating the appointments of nearly
H four thousand employees working in different colleges under universities.
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 3 89
They also sought a further relief that their services be protected and not A
interferred with.
The Division Bench of the High Court after examining the record of
the case, the contents of proceedings of the various committees and construing
the provisions of the Act, allowed the writ petitions of the employees'
association. The High Court made the following observations and issued B
following-directions in the concluding part of its judgment:-
"In that view of the matter, the controversies have not reached a
finality as contemplated under section 4( 14) of the Act. This Court,
therefore, directs the concerned universities to take steps unoer subsection (14) of section 4 of the said Act in respect of regularization C
of the services of the teachers of the colleges which have become
constituent coileges of the different universities in the fourth phase.
Even though, the universities have been made parties including the
chancellors of the said universities, and they have been served with
notice, but nobody appeared on behalf of the universities or on behalf D
of the chancellors nor any affidavit has been filed.
In that view of the matter, this Court directs the universities who are
parties of this proceeding to take steps in accordance with the
communication of the State Government which is at annexure-5 of E
the writ application in the light of the observation made in this
judgment and in accordance with the provisions of section 4(14) of
the said Act within a period of four months from the date of receipt/
production of a copy of this order.
It is, however, made clear that till such steps are taken py the respective F
universities, the status quo as existing on today will continue. With
the aforesaid direction this writ petition is allowed to the extent
indicated above. No order as to costs.
Aggrieved by the judgment and the directions made by the High Court,
the State ofBihar has preferred this appeal. From the record of the proceedings G
in this appeal, it seems this Court thought that before the universities are
directed to implement the order of the High Court and to complete the process
of absorption of employees of various categories in the constituent colleges,
an independent enquiry is required to be made through a high power
Commission so as to identify alleged bogus appointees in various affiliated
colleges who sneaked into the services of the erstwhile affiliated colleges in .H
390
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A connivance with the authorities of the various Colleges and Universities of
the State. With the above view, after adding new State of Jharkhand as a
separate party (as a result of bifurcation of State of Bihar into two States),
this Court by order dated 12.10.2001 appointed Shri Justice S. C. Agrawal,
retired Judge of this Court as one member Enquiry Commission to go into
B
c
D
E
F
G
H
the various controversies and disputes with regard to the absorption of
employees of the erstwhile affiliated colleges in the services of the converted
constituent colleges. The Terms of Reference to be answered after enquiry,
by the one-member Commission of the hon'ble retired Judge read as under:-
"Terms of Reference"
1.
How many sanctioned posts of teachers and non-teaching
employees were there in the 40 colleges which were converted
into constituent colleges pursuant to the sanction letter dated
19.8.1986 of the State of Bihar?
2.
How many proposals with regard to creation of posts for teachers
and non-teaching employees had been submitted to the Education
Department of the State of Bihar or universities before 30.4.1986,
the cut-off date mentioned in Appendix 'Kha' (p.208 of SLP)
with respect to 36 colleges converted into· constituent colleges as
per government letter dated 19.8.1986? [List of colleges is at
pp206-207 of SLP and other dates mentioned in government
communications in respect of four other colleges]?
3.
How many teachers and non-teaching employees seeking
absorption in the constituent colleges were not appointed through
selections made by the College Service Commission/University
Service Commission and whether they possess the basic
qualifications prescribed by the Act and Statutes? This exercise
will be without prejudice to the contention of the respondents
that section 57 A is not applicable to such selection, as has been
held by the High Court in the judgment?
4.
How many teachers and non-teaching employees would be entitled
to absorption on the basis of the government letter dated 19.8.1986
and Appendix 'Kha' and the agreement entered. into betWeen the
University concerned and the constituent college under section
4(14) of the Bihar State University Act, 1976 and other orders
of government?"
~
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 391
The one-member Commission completed within two years the A
stupendous task of examining the records, hearing various authorities of the
State and the colleges as also individual employees. After seeking extension
of period for completing the enquiry, the Commission has submitted a detailed
report on 19.12.2003. On submission of the report of the enquiry commission,
parties were granted titne to submit their written objections, if any. Objections B
have also been filed before this Court in large number. The Commission has
purposely, as was expected of it, avoided to express any opinion on the legal
issues involved and which are pending decision before this Court. Some
opinions have been expressed by the Commission on the provisions of the
Act with the limited purpose of providing necessary information to this Court,
for coming to a right and just conclusion.
C
_ :'+ .
In answer to 'terms of reference' no. I, enquiry commission has taken
different cut-off dates for different affiliated· colleges with reference to the
dates on which decision was taken to convert them into constituent colleges.
Thus taking 30.4.1986 or 31.3.1987 or 01.1.1987 as dates applicable to the
particular colleges, the Commission has identified the number of sanctioned D
posts and the members of the staff working against each of them. It has given
separate report for one minority institution in which there was no indication
of cut-off date. To answer term No. 2, the commission has divided it into two
parts and answered each separately. Identification has been done in respect
of each college which had sent proposals with regard ~o creat~on of additional E
fX)Stsaxi w hi:h haYe'r::a:nsubmitted by concerned universities to the education
department of the State before the cut-off date.
Separate identification has been done by the Commission regarding
proposals for creation of additional posts submitted by epch college before
the cut-off date and which were pending with the concerned universities.
p
On the basis of the decision of the government conveyed from time to
time. by various letters to the universities, the Commission has come to a
conclusion that the decision taken was to absorb services of members of
teaching and non-teaching staff of converted constituent colleges only against
additional posts for which proposals had been received from the universities G
by the State Government by the cut-off date and were pending for consideration
with the State Government. In the opinion of the Commission, there is no
decision of the Government to consider for absorption the staff working
against such posts, the proposal for creation of which had been submitted by
the governing bodies to the universities before the cut-off date.
H
392
SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.
A
We have perused carefully the contents of decisions of the government
taken by it from time to time which are contained in its letters dated 19 .8.1986,
25.8.1986, 30.6.1986 and 18.12.1989. At this very stage, it would be proper
for us to opine that we find no merit in the objections submitted to this part
of the report of the commission which is based on the contents of the various
resolutions of the government on the subject of converting affiliated colleges
B into constituent colleges. We agree with the opinion of the Commission that
only such members of the staff are liable to be considered for absorption who
were working against additional posts for which proposals had been received
from the universities by the State Government before the cut-off date. The
other proposals for creation of posts which were pending at the university
C level are outside the purview of the various decisions taken by the government
to take over the 40 affiliated colleges. The claims for absorption of services
of employees working against posts for which proposals had not reached to
the State Government before cut off date, are liable to be rejected.
With regard to term of reference no. 3, requiring identification of
D teaching and non-teaching members of the staff, w!io have not been appointed
through selection made by College Service Commission/ Universities Service
Commission and enquiry about their possessing or not possessing basic
qualifications.