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BEFORE THE HON’BLE JUSTICE S.B. SINHA COMMISSION
NEW DELHI
Krishna Nand Yadav Claimant
Vs.
Magadh University & Ors. Respondents
Index
S.No Contents Pg. No.
1.. Brief Synopsis
2. List of Abbreviations
3. Consolidated Reply
on Behalf of State of
Bihar
4 Miscellaneous
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I. BRIEF SYNOPSIS:
The current dispute owes its origin to the decision of the State of
Bihar to convert 36 affiliated colleges situated in the State of
Bihar, as constituent colleges vide Letter No. 1095 dated
19.08.1986. The number was subsequently raised to 40. As a
result of this decision a number of Screening Committees were
constituted by the Universities to identify the actual number of
sanctioned posts in each colleges and employees working against
them. The Reports of these Committees were sent to the State
Government. However, as it turned out, there was inconsistency
in the Reports of these Committees and there were large number
of incidences of interpolation and tampering with the records. As
a result, the State Government directed a Vigilance enquiry
against the same. The Vigilance enquiry stated in its Report that a
large number of appointments have been made in violation of
Section 35 and 57A of the Bihar Universities Act, 1976.
Meanwhile, Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. v.
State of Bihar and Ors. was filed before the Hon’ble High Court of
Judicature at Patna which culminated into the Special Leave
Petition titled as the State of Bihar and Ors. V. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129. The
Hon’ble High Court vide order dated 31.01.1997 in Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors. v. State of Bihar and Ors. held
that the University had the Power to take decision in respect of
services of teaching and non-teaching employees concerned with
all the related colleges made constituent in 4th phase under the
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provisions of Section 4(1)(14) Bihar State Universities Act , 1976
in lawful manner within the period of four months from the date of
the judgment. The State of Bihar filed Special Leave Petition
against the aforesaid judgment of the Hon’ble High Court. The
Hon’ble Supreme Court in order to resolve the controversy, vide
order dated 12.10.2001 passed in State of Bihar and Ors. vs.
Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors., constituted a one
man enquiry Commission headed by the Hon’ble Justice S. C.
Agrawal and directed the Commission to submit its Report with
respect to employees who were entitled for absorption and those
who were not entitled for absorption. The Hon’ble Justice S.C.
Agrawal Commission had the following 4 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
pp. 206-07 of SLP and other dates mentioned in
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government communication 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 (1)
(14) of the Bihar State Universities Act 1976 and other
orders of the Government?”
The Hon’ble Justice S.C. Agrawal Commission submitted its
Report on 19.12.2003, which was accepted by the Hon’ble
Supreme Court in State of Bihar and Ors. Vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129 vide Order
dated 12.10.2004, whereby the Hon’ble Court discarded all the
objections raised against the Hon’ble Justice S.C. Agrawal
Commission Report.
-5-
It is pertinent to mention that Pursuant to the judgment of the
Hon’ble Supreme Court in State of Bihar and Ors. vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors. ; 2005 (9) SCC 129 various
matters came to be filed and in one such matter, the Hon’ble High
Court of Judicature at Patna, in LPA No. 1304/2009 vide Order
dated 11.03.2010 ordered the setting up of two member
commission to decide the fate of employees placed in List (iii) i.e.
category R-II/NR of the Hon’ble Justice S.C. Agrawal Commission
Report and meanwhile to pay the salaries of the employees who
were currently working at their respective posts. However, the
working of the two member Commission was stayed by the
Hon’ble Supreme Court in SLP (C) No. 12591/2010 titled as
Krishna Nand Yadav & Others vs. Magadh University and Others;
vide order dated 07.05.2010. Thereafter, the Hon’ble High Court
of Judicature at Patna in Contempt Petition being MJC No.
5237/2010 vide Order dated 22.06.2011 directed the State of
Bihar to pay the salaries of the employees who were working in
the concerned Colleges. Thereafter, the Hon’ble Supreme Court in
SLP (C) No. 27964-65 vide Order dated 17.10.2011 stayed all the
contempt proceedings pending before the Hon’ble High Court and
vide order dated 21.10.2011 passed in Krishna Nand Yadav vs.
Magadh University & Ors; the Hon’ble Supreme Court listed the
matter for final disposal. Consequently, vide Order dated
22.01.2013 owing to the facts and circumstances of the case, the
Hon’ble Supreme Court in Krishna Nand Yadav vs. Magadh
University & Ors appointed Hon’ble Justice S.C. Agrawal as one
-6-
man commission to enquire into the following aspects of the
matter:
“ a) The Commission shall adjudge the claims of
each of the employees (both teaching and non
teaching) for absorption in constituent colleges on the
anvil of Justice Agarwal Commission report dated
10.12.2001 and the decision of the Supreme Court in
State of Bihar versus Bihar Rajya MSESKK Maha Sangha,
2005 (9) SCC 129.
b) Each of the Writ Petitioners shall file their requisite
brief with all the details and the basis of claiming
absorption before the Commission within 4 week with
advance copies to (i) concerned University, (ii) Principal
Secretary, Higher Education, State of Bihar and (iii)
Standing counsel for State of Bihar in Supreme Court.
No claim made thereafter shall be entertained.
c) The concerned University and State of Bihar shall file
their response within 4 weeks thereafter.
d) The present order shall relate only to cases which
have been disposed of by the Patna High Court vide
judgment and order dated”
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11.03.2010 in LPA No. 1304 of 2009 and connected
matters.”
However, as Hon’ble Justice S.C. Agrawal expressed his inability
to continue to work as one man Commission, the Hon’ble
Supreme Court vide Order dated 19.08.2013 appointed Hon’ble
Justice S.B. Sinha as one man Commission to enquire into
various issues mentioned in Order dated 22.01.2013.
II. List of Abbreviations:
The Abbreviation used in the Hon’ble Justice S.C. Agrawal
Commission are provided below for the ease of this Hon’ble
Commission:
S. No. Abbr. Full Text
A
1
R-I Posts for which
recommendation was
sent by the University
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to the State
Government upto the
cut-off date 30-04-
1986.
2
R-II/ NR Posts for which
recommendations
were sent by the
University after the
Cut-off Date 30-04-
1986 or Nor
Recommended Post.
3 S Sanctioned Posts.
B. ANNEXURES
1 IA Sanctioned Posts of
Teachers.
2 IB Sanctioned Posts of
Non-Teaching Staff.
3 IIA Recommended
Posts-Teaching Staff.
4 II B Recommended
Posts- Non- Teaching
Staff.
5 III A Teachers who were
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working on the date
of conversion-
arranged subject
wise.
6 III B Teachers who have
been appointed on
the recommendation
of Bihar College
Service Commission,
teachers who have
been permanently
absorbed under the
statutes providing for
regularisation of
temporary lecturer
and teachers who did
not possess the
requisite qualification
on the date of
appointment but have
become eligible for
consideration
subsequently,
arranged subject
wise, in the order of
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the date of
appointment
indicating the date of
eligibility against their
names.
7
IV A Teaching staff who
are eligible to be
considered for
absorption.
8 IV B Non-Teaching Staff
who are considered
eligible for absorption.
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III. Consolidated Reply on Behalf of the State of Bihar:
The claims can be classified into 11 different categories
It is submitted that the stand of the State of Bihar for the following
categories of claim is mentioned below. There are 11 different
categories of claims for the teachers and 8 different categories of
claims for the non- teachers. It is stated that the present reply is to
place on record the stand of the State of Bihar in respect of each
of the category for ease of this Hon’ble Commission, for all the
concerned Universities. Terms of reference of the Hon’ble
Supreme Court are very specific and parties cannot enlarge the
terms and address on issues beyond the terms of reference.
A. TEACHERS
It is pertinent to mention at the outset that following are the 11
different categories of claims advanced by the so called teaching
staff of the 28 Colleges of 6 (six) concerned Universities of the
State of Bihar:
(i) Claim for absorption in the concerned College;
(ii) Claim for confirmation of absorption made by Universities of
the claimants placed in the R-II/NR category of the Hon’ble Justice
S. C. Agrawal Commission.
(iii) Claim for the additional sanctioning of posts on the basis of
Government Order Dated 01.02.1988 and 18.12.1989.
(iv) Claim of absorption on the basis of Government Order dated
18.12.1989 and 01.02.1988.
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(v) Claim of absorption by those who have been working against
the sanctioned posts but whose name is categorised in the list R-
II/NR of the Hon’ble Justice S.C. Agrawal Commission Report.
(vi) Claim of absorption on the basis of positional hierarchy of the
Claimants as per the Hon’ble Justice S.C. Agrawal Commission
Report. Consequently, the claim for the fresh appraisal of
Positional Hierarchy by the claimants.
(vii) Claim for absorption by those who obtained qualification after
cut-off date.
(viii) Claim for payment of all dues including retirement benefits.
(ix) Claim for absorption of services from the date of conversion of
College as a Constituent College.
(x)Claims of absorption by employees of colleges not covered by
IVth Phase.
(xi) Claim for absorption on compassionate grounds by the Legal
Representatives.
(i) Claim for absorption in the concerned College:
It is stated that this category involves three types of cases.
Firstly, those claimants whose names are not present in
Annexure III A, Secondly those whose names are present
in list R-II and thirdly those whose name are present in list
R-I.
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(a) Claimants whose names are not present in Annexure
III A.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission only the teachers who
were categorised in the S list means IA i.e. the appointees
working on sanctioned posts and R-1 list means IIA i.e. the
appointees working on posts for which the recommendation
were sent by the Universities to the State Government
before and upto the cut off date (30.04.1986). It is humbly
submitted that the S list and R-I list have to be read
concurrently with Annexure-IVA because Annexure-IVA is
the recommendation of Justice Agrawal Commission Report.
Hence those claimants whose names do not appear in III A
and not part of either sanctioned (S) list or recommended
(R-I) list cannot be considered for absorption.
(b)Claimants whose names are present in list R-II of the
Annexure III A.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission and Judgement of the
Hon’ble Supreme Court only the teachers who were
categorised in the S and R-1 lists and whose post is either
sanctioned or recommended to the State Government by the
University for sanctioning up to the cut off date i.e.
30.04.1986 are eligible for absorption. As, those claimants
were not working against either the sanctioned posts or
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recommended posts, prior to 30-04-1986, their claims
cannot be considered.
(C) Claimants whose names are present in list R-I of the
Annexure III A.
It is submitted that for the claimants whose nature of post is
indicated as R-1 in the Annexure III A terms of reference of
the Hon’ble Supreme Court are very specific and parties
cannot enlarge the terms and address on issues beyond the
terms of reference means RI list which has to be derived
from Annexure-IV A because Annexure-IVA is the
recommendation of Justice Agrawal Commission Report.
(ii) Claim for confirmation of absorption made by
Universities of the claimants placed in the R-II/NR
category of the Hon’ble Justice S. C. Agrawal
Commission.
The Hon’ble Supreme Court in State of Bihar v. Bihar Rajya
MSESKK Maha Sangha, 2005 (9) SCC 129 at para. 28 and
73 (5); while accepting the recommendations of the Hon’ble
Justice S.C. Agrawal Commission has held that the teachers
placed in list III of the Hon’ble Justice S.C. Agrawal
Commission Report cannot claim any right of absorption, as
either their recommendations were sent after the cut-off
date or no recommendations were sent in their case.
Therefore, the Universities under S.4(1)(14) of the Bihar
-15-
State Universities Act, 1976 were to consider claims for
absorption only of the teachers whose names were
categorised under list R-I of the Hon’ble Justice S.C.
Agrawal Commission Report. Consequently, absorption
made by the Universities from the category R-II and NR is
contrary to the judgment of the Hon’ble Supreme Court in
State of Bihar v. Bihar Rajya MSESKK Maha Sangha, 2005
(9) SCC 129. Such absorption is null and void in the eye of
law.
(iii) Claim for the additional sanctioning of posts on the
basis of Government Order Dated 01.02.1988 and
18.12.1989
It is submitted that the claimants cannot claim creation of
additional posts on the basis of Govt. Letter dated
01.02.1988 and 18.12.1989 as the recommendation of the
Hon’ble Justice S.C. Agrawal Commission remains final and
binding in this regard. It is submitted that the Hon’ble
Supreme Court in State of Bihar vs. Bihar Rajya MSESKK
Maha Sangha, 2005 (9) SCC 129 has held that the list of
posts as approved by the Hon’ble Justice S.C. Agrawal
Commission would be final. Moreover the issue of
rationalisation of posts, after segregation of Intermediate
Education as well in the larger interest of Academics and
Quality Education, it is high time to consider selection and
appointment of persons with brilliant Academic career
-16-
having National Eligibility Test (NET) qualification otherwise
quality of Education will suffer adversely.
(iv) Claims of absorption on the basis of Government
Order dated 18.12.1989 and 01.02.1988.
It is submitted that the petitioners cannot claim creation of
additional posts on the basis of Govt. Letter dated
01.02.1988 and 18.12.1989 as the recommendation of the
Hon’ble Justice S.C. Agrawal Commission and the
Judgement of the Hon’ble Supreme Court remains final and
binding in this regard. It is submitted that the Hon’ble
Supreme Court in State of Bihar v. Bihar Rajya MSESKK
Maha Sangha, 2005 (9) SCC 129 has held that the list of
posts as approved by the Hon’ble Justice S.C. Agrawal
Commission would be final. Consequently, it is submitted
that there cannot be any consideration of absorption on the
posts beyond those mentioned in the list S and R-1 of the
Hon’ble Justice S.C. Agrawal Commission Report. Issues
regarding eligibility, admissibility of post by Justice S.C.
Agrawal is final and no issue of fresh determination is
admissible in the light of the Judgement of the Hon’ble
Supreme Court. In this context, it is pertinent mention here
that additional post creation is beyond the terms and
reference of the Hon’ble Supreme Court.
(v) Claim of absorption by those who have been
working against the sanctioned posts but whose name
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is categorised in the list R-II/NR of the Hon’ble Justice
S.C. Agrawal Commission Report.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission only the teachers who
were categorised in the S list and R-1 list are eligible for
absorption. Therefore, those claims which are beyond S list
and R-1 list cannot be considered.
(vi)Claim of absorption on the basis of Positional
Hierarchy of the Claimants as per the Hon’ble Justice
S.C. Agrawal Commission Report. Consequently, the
claim for the fresh appraisal of Positional Hierarchy by
the claimants.
It is submitted that the question of positional hierarchy of
teachers in a particular subject on the basis of order of date
of eligibility and date of appointment has been decided by
the Hon’ble Justice S.C. Agrawal Commission and has been
annexed as Annexure IV A of the Report. Therefore, there
cannot be any subsequent dispute to the same in the light of
the judgment of the Hon’ble Supreme Court in State of Bihar
v. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129.
Therefore, only the teachers in the list S and list R-I of the
Hon’ble Justice S.C. Agrawal Commission are eligible for
absorption. Issues regarding eligibility, admissibility of post
categorisation as S, R-I, R-II, NR by Justice S.C. Agrawal is
final and no issue of fresh determination is admissible in the
light of the Judgement of the Hon’ble Supreme Court.
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(vii)Claim for absorption of those who obtained
qualification after cut-off date;
It is submitted that the Hon’ble Justice S. C. Agrawal
Commission vide its Report dated 19.12.2003 has given a
detailed finding in relation to the teachers who are eligible
for absorption on the basis of whether they fulfill the
requisite criteria of qualification as prescribed. Beyond these
findings, no absorption can be considered.
(viii) Claim for payment of all dues including retiral
benefits:
It is submitted that under this category of claims, the
claimants are firstly not entitled for absorption. Secondly,
as a result, their claim for arrears of salary cannot be
sustained. Further, it is submitted that as per the meeting
dated 21.09.2010 held under the Chairmanship of Hon’ble
Chancellor of the University, in the light of the directions of
the Hon’ble Patna High Court in CWJC 2732/2010 dated
09.08.2010, it was decided that only teachers placed in the
S i.e. the appointees working against sanctioned posts and
R-I category i.e. the appointees working against the posts
for which recommendations were sent by the Universities to
the State Government upto the cut off date (30.04.1986) are
entitled to payment of arrears of salary. It is submitted
that the State of Bihar accepts its liability towards the
employees placed in aforesaid S and R-I category and is
regularly releasing the grant for payment to the employees
-19-
placed in the aforesaid S and R1 category of the Hon’ble
Justice S.C. Agrawal Commission Report. Other than these
teachers, no one else is eligible for salary dues for retiral
benefits.
(ix) Claim for absorption of services of the Claimant
from the date of conversion of College as a Constituent
College.
It is submitted that the Hon’ble Justice S.C. Agrawal
Commission vide its Report dated 19.12.2003 has
exhaustively considered the question of absorption of
employees in a constituent College against the sanctioned
post. For the purposes of determination of eligibility of an
employee for absorption, the Hon’ble Justice S.C. Agrawal
Commission has relied on the cut-off date applicable to
the University in question. Accordingly, the Hon’ble Justice
S.C. Agrawal Commission has already given a detailed
report on the eligibility of an employee on the basis of
his/her date of eligibility and the date of appointment.
Therefore, there cannot be any subsequent dispute to the
same in the light of the judgment of the Hon’ble Supreme
Court in State of Bihar v. Bihar Rajya MSESKK Maha
Sangha, 2005 (9) SCC 129. Issues regarding eligibility,
admissibility of post categorisation as S, R-I, R-II, NR by
Justice S.C. Agrawal is final and no issue of fresh
determination is admissible in the light of the Judgement of
the Hon’ble Supreme Court.
-20-
(x)Claims of absorption by employees of colleges not
covered by IVth Phase.
It is submitted that the terms of reference of the Hon’ble
Justice S.C. Agrawal Commission as well as S.B. Sinha
Commission is limited to the conversion of affiliated colleges
to constituent colleges in the IVth phase only. Therefore, any
claims related to the Colleges not covered by IVth phase
cannot be adjudicated before this Hon’ble Commission as
the same is beyond the Terms of Reference of this Hon’ble
Commission.
(xi) Claim for absorption on compassionate grounds by
the Legal Representatives:
It is submitted that the claim for absorption on the
compassionate ground is not maintainable, not only as it is
beyond the terms of reference of the Hon’ble Justice S.B.
Sinha Commission but accepting appointment on
compassionate grounds will adversely affect the quality of
Higher Education. It is respectfully submitted here that in the
instant case there is no scope for showing any compassion
or equity in favour of teaching employees on the cost of
quality of education. The University Education in Bihar is in
shambles and it can be only improved and made at par with
National Standard by recruiting teachers of Quality and
Caliber.
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B. NON- TEACHERS
There are 8 different categories of claims advanced by the
non teaching staff of the 6 concerned Universities of the
State of Bihar; which are as follows:
(i) Claim for Absorption of Services.
(ii) Claim for creation of additional post on the basis of
Government Order dated 01.02.1990 and the subsequent
absorption of the claimant on the said post.
(iii) Claim for absorption on the basis of additional Post
shown in Annexure IIB of the College Report.
(iv) Claim for rectification in the description of the post.
(v) Claim for Payment of Arrears of Salary.
(vi) Claim for absorption on the basis of working existence of
the claimant.
(vii) Claim for absorption made by the University to be taken
into account.
(viii)Claim for absorption on compassionate grounds.
(i) Claim for Absorption of Services:
The claim of the petitioners is that they should be
considered for the absorption. However, it is humbly
submitted that as per the report of the Hon’ble Justice S.C.
Agrawal Commission the non-teaching staff who are
categorised in the Annexure-IVB are only eligible for
absorption. Therefore, the claimants whose name is not
mentioned in Annexure IVB of the Hon’ble Justice S.C.
-22-
Agrawal Commission Report cannot be considered for
absorption.
(ii) Claim for creation of additional post on the basis of
Government Order dated 12.02.1990 and 24.02.1990 and
the subsequent absorption of the claimant on the said
post.
The claimants cannot claim creation of additional posts on
the basis of Govt. Letter dated 12.02.1990 and 24.02.1990
as the recommendation of the Hon’ble Justice S.C. Agrawal
Commission remains final and binding in this regard. It is
submitted that the Hon’ble Supreme Court in State of Bihar
vs. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129
has held that the list of posts as approved by the Hon’ble
S.C. Agrawal Commission would be final. Consequently, it is
submitted that there cannot be any consideration of
absorption on the posts beyond those mentioned in the list
of the Hon’ble S.C. Agrawal Commission Report. Additional
post creation is beyond the terms and reference as laid
down by the Hon’ble Supreme Court.
(iii) Claim for absorption on the basis of additional Post
shown in Annexure IIB of the College Report.
It is submitted that the Hon’ble Supreme Court in the State
of Bihar vs. Bihar Rajya MSESKK Maha Sangha, 2005 (9)
SCC 129 has held that the list of posts as recommended by
the Hon’ble Justice S.C. Agrawal Commission would be
final. Consequently, it is submitted that there cannot be any
-23-
consideration for absorption on the post beyond those
mentioned in the list II B read along with IV B of the Hon’ble
S.C. Agrawal Commission Report.
(iv) Claim for rectification in the description of the post.
It is submitted that the Hon’ble Justice S.C. Agrawal
Commission vide Report dated 19.12.2003 categorised the
description of post for the non-teaching employees on the
basis of nature of post in Annexure I-B and II-B of the
Report. It is pertinent to mention that the Hon’ble Supreme
Court in State of Bihar vs. Bihar Rajya MSESKK Maha
Sangha, 2005 (9) SCC 129 has accepted the Report of the
Hon’ble S.C. Agrawal Commission, while rejecting all the
objections raised against it. Therefore, no rectification in
description of posts can be made beyond the Hon’ble
Justice S.C. Agrawal Commission Report.
(v)Claim for Payment of Arrears of Salary:
It is submitted that the claimants are not appointed against
the valid Sanctioned/Recommended post as per the Hon’ble
Justice S. C. Agrawal Commission Report. Therefore, they
cannot be granted any arrears of salary. It is stated that the
State of Bihar accepts its liability towards the non-teachers
appointed against the valid sanctioned and recommended
posts as per the Hon’ble Justice S. C. Agrawal Commission
Report and is regularly releasing the grant for payment to
the non teachers placed in the said report thereto. However,
the claimants are not appointed against the valid sanctioned
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post or the recommended post and therefore, they are not
entitled to any arrears of salary.
(vi) Claim for absorption on the basis of working
existence of the claimant.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission the non-teaching staff
who were categorised in the Annexure-IVB are only eligible
for absorption. Therefore, the claimants whose names are
not mentioned in Annexure-IVB of the Hon’ble Justice S.C
Agrawal Commission Report cannot be considered for
absorption.
(vii) Claim for absorption made by the University to be
taken into account.
It is submitted that the Hon’ble Justice S.C. Agrawal
Commission vide Report dated 19.12.2003 annexed the list
of the non-teaching staff eligible for the absorption in
Annexure IV B. It is pertinent to mention that the Hon’ble
Supreme Court in State of Bihar v. Bihar Rajya MSESKK
Maha Sangha, 2005 (9) SCC 129 has accepted the Report
of the Hon’ble S.C. Agrawal Commission, while rejecting all
the objections raised against it. Therefore, only the non-
teaching staff whose names are mentioned in Annexure IV B
are entitled for the absorption and the Universities are not
authorised to allow continuance of the services of the non-
teaching staff beyond Annexure IV B of the Report, in the
-25-
light of the judgment of the Hon’ble Supreme Court in Bihar
v. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129.
(viii) Claim for absorption on compassionate grounds.
It is submitted that the claim of the petitioners to be
considered for absorption on compassionate grounds is
beyond the terms of reference of the Hon’ble Justice S. B.
Sinha Commission.
General Submission:
That the State Government has already filed individual replies
in relation to various Universities. It is humbly submitted that
from the records it is felt that some of the
applicants/petitioners have represented only before the
Commission or before Standing Counsel and the copies
thereof have not been supplied to the State, therefore, in
those cases copies are being collected from the State
Counsel's Office at New Delhi and accordingly the replies are
prepared in the department and are being sent to the State
Counsel at New Delhi to prepare Affidavits though the reply
with respect to the applications received in the department
have already been sent. Even thereafter, there is a possibility
that some applications / petitions are unanswered by the
Department. Hence a general reply on behalf of State of Bihar
is being filed for the kind consideration of the Hon’ble
Commission. This general reply will apply to those
-26-
applicants/petitioners for whom individual reply on behalf of
State has not been filed as yet.
IV. Miscellaneous
(A) Relevant Provisions of the Bihar Universities Act, 1976:
For the purposes of the adjudication of the present dispute, some
of the relevant provisions of the Bihar Universities Act, 1976 are
produced below:
(i). The definition of affiliated and constituent college are
covered u/s 2 of the Bihar University Act, 1976.
“Sec. 2. (c) “affiliated College” means educational
institution having received privileges of the University
according to the provisions of this Act and University
Statutes relating thereto;
(i) “Constituent College” means a teaching
institution maintained or controlled by the University;”
(ii)Section 10(6):
"The Vice-Chancellor shall, subject to the provisions of this
Act, the statutes and the Ordinances, have the power to
make appointments to posts within the sanctioned grades
and scales of pay and within the sanctioned strength of the
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ministerial staff and other servants of the University, not
being teachers and officers of the University, and have
control and full disciplinary powers over such staff and
servants."
Section 35:
“Section 35:- No post for appointment shall be created
without the prior sanction of the State Govt.-
Notwithstanding anything contained in this Act, no university
or any college affiliated to such a University, except such
colleges-
a) as is established, maintained or governed by
the State Govt. or
b) as is established by a religious or linguistic
minority;
(i) After the commencements of this Act no teaching or
non-teaching post involving financial liabilities shall be
created without the prior approval of the state Govt.
(ii) Shall either increase the pay or allowance attached to
any post or sanction any new allowance;
Provided that the State Govt. may, by an order, revise the
pay scale attached to such post or sanction any new
allowance.
(iii) Shall sanction may special pay or allowance or other
remuneration of any kind including ex-gratia payment
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or any other benefit having financial implication to any
person holding any teaching or non-teaching post;
(iv) Shall incur expenditure of any kind of any development
scheme without the prior approval of the State Govt.
(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 posts without the prior approval
of the State govt.
Provided that the approval of the State Govt. shall not
be necessary for filling up a sanctioned post of a teacher
for a period not exceeding six months, by a candidate
possessing the prescribed qualification.
(3) any appointment or promotion made contrary to the
provision of this Act, or Statutes, Rules or regulation made
there under or made in irregular or unauthorized manner
shall be invalid and shall be terminated at any time. The
expenditure incurred by the University against such
appointment or promotion shall be realized from the officer
making such appointment or promotion as a public demand
under the provisions of the Public Demands Recovery Act,
1914. “
(iii)Section 57
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“57.A(1) Appointment of teacher of affiliated
colleges not maintained by the State Government shall
be made by the Governing Body on the
recommendation of the College Service Commission.
Dismissal, termination, removal, retirement from
service or demotion in rank of teacher of such colleges
shall be done by the Governing Body in consultation
with the College Service Commission in the manner
prescribed by the Statutes:
…………..
57 (2) Recommendation for the appointment of
teachers of colleges shall be made in accordance with
the following provisions:-
(a) College Service Commission shall give its
consent/recommendation for the appointment,
dismissal or termination etc., of teacher of affiliated
colleges till the date of their being made constituent
colleges.
(b) If an affiliated college becomes a constituent
college of a University by the time the
recommendation of the College Service
Commission is received, the Syndicate shall take
action in accordance with sub-section (4) of section
57 of the said Act, as if the recommendation has
been made by the Commission.
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(c)For the purpose of absorbing the services of the
teacher of the affiliated colleges, who were appointed
by the governing body of the college against the
sanctioned posts before the establishment of the
College Service Commission and whose services of
such teachers who were appointed by the governing
body on the recommendations of the University
Service Commission (Dissolved College Service
Commission) as the case may be, approval of the
Bihar State University (Constituent Colleges) Service
Commission shall be necessary, and such teachers
shall be absorbed in the University Service from the date
of making the College constituent and their seniority shall
be determined according to the rules prescribed in
the Statutes.”
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(B) Submissions of the State of Bihar in relation to Shri
Guru Govind Singh College:
Reply on behalf of the State Government on SGGS
1. This matter refers to Sri Guru Govind Singh (SGGS)
College, Patna City under Magadh University. Though
this college was proposed to be taken over in the 3rd
phase, it was actually taken over under 4th phase. This
college was taken over as minority-constituent college.
The definition of Minority College is covered by the order
of the Supreme Court. Article 30(1) of the Constitution of
India gives linguistic and religious minorities a
fundamental right to establish and administer educational
institutions of their choice.
2. The definition of affiliated and constituent college are
covered u/s 2 of the Bihar University Act, 1976.
Sec. 2. (c) “affiliated College” means educational
institution having received privileges of the University
according to the provisions of this Act and University
Statutes relating thereto;
(i) “Constituent College” means a teaching
institution maintained or controlled by the University;
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3. Essentially, the constituent college means, a college
completely managed and controlled by the University. It
cannot so happen that it will be a Government College
and at the same time management of the College which
among other matters includes appointment, promotion,
dismissal of teaching / non-teaching staff remains with
the Governing Body of the College.
4. However, the recruitment of the teachers in an
affiliated college ( SGGS college was an affiliated college
before its takeover) is mentioned under the Bihar
Universities Act-1976 as follows:
57.A(1) Appointment of teacher of affiliated
colleges not maintained by the State Government shall
be made by the Governing Body on the
recommendation of the College Service Commission.
Dismissal, termination, removal, retirement from
service or demotion in rank of teacher of such colleges
shall be done by the Governing Body in consultation
with the College Service Commission in the manner
prescribed by the Statutes:
5. Justice Agrawal Commission dealt this college in
depth. Pages 594-622 of Volume-IV of the report give the
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details of the establishment, mis-management, Screening
Committee reports and final recommendations. The
teaching / non-teaching members of the college had
represented before the Commission individually and also
through Mahasangha( University Employees Union).
State also filed its affidavit before the Commission. After
considering both the sides, the Commission had finally
given its recommendation which is accepted by the
Hon’ble Supreme Court.
6. Even after the Hon’ble Supreme Court accepted the
recommendations of the Justice Agrawal Commission,
Universities were reluctant to implement the Apex Court
order. Finally, the Govt. of Bihar vide Education
Department Letter 323/GSID/09 DATED 15/9/2009
instructed the University / Colleges not to take any work
from the teachers / non-teachers of category R-II and NR.
7. However in the case of SGGS College, the Magadh
University Syndicate appears to have recommended for
regularization / absorption of ten teachers falling under
the above category (R-II/NR). Reference to this decision
is made in the letter written by the Registrar of Magadh
University. This kind of passing resolution and seeking
approval from the Department is not only strange, but
violative of the Hon’ble Supreme Court order. Moreover,
neither the Syndicate nor the Registrar seem to have
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given any regard to the relevant portion of the Act which
is as follows:
57 (2) Recommendation for the appointment of
teachers of colleges shall be made in accordance with
the following provisions:-
(a) College Service Commission shall give its
consent/recommendation for the appointment,
dismissal or termination etc., of teacher of affiliated
colleges till the date of their being made constituent
colleges.
(b) If an affiliated college becomes a constituent
college of a University by the time the
recommendation of the College Service
Commission is received, the Syndicate shall take
action in accordance with sub-section (4) of section
57 of the said Act, as if the recommendation has
been made by the Commission.
8. Justice Agrawal Commission had carefully scrutinised the
reports of the screening committees and the other
relevant records before giving its final recommendation.
These ten teachers were rightly kept under RII/NR
category. Once the college became constituent college,
all its duly appointed employees became automatically
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part of the University Service. The relevant section of the
Act states as follows:
57(2)(c) For the purpose of absorbing the services of the
teacher of the affiliated colleges, who were appointed by
the governing body of the college against the sanctioned
posts before the establishment of the College Service
Commission and whose services of such teachers who
were appointed by the governing body on the
recommendations of the University Service Commission
(Dissolved College Service Commission) as the case
may be, approval of the Bihar State University
(Constituent Colleges) Service Commission shall be
necessary, and such teachers shall be absorbed in the
University Service from the date of making the College
constituent and their seniority shall be determined
according to the rules prescribed in the Statutes.
9. This provision essentially means that, once an
affiliated college becomes constituent college, it loses
the character of privately managed institute and its
employees including teaching and non-teaching staff are
deemed to be in the University Service provided they
have been duly appointed as per the provisions laid
down under the Act and the Statutes under it. In any
event the issue of whether the SGGS College is a
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minority institution or not is beyond the terms of reference
of this Hon’ble Commission.
10. It is submitted that the State as a custodian of public
exchequer cannot release the public fund towards the
payment of salaries of employees who have been
appointed by illegal/ illegitimate means. It is further
submitted that the regularisation of services of the
employees who do not have the requisite qualification will
have an adverse impact on the standard of education
being imparted in the State of Bihar. It is the duty of the
State to ensure quality education for its citizens and such
duty cannot be fulfilled if un-qualified teachers are
appointed in the educational institutions. It is the duty of
the State to ensure that only the deserving candidates get
selected to the relevant posts. It is further submitted that
absorbing in-eligible claimants will also prevent future job
opportunities for the candidates who are eligible for the
posts, as the State will be obliged to absorb the existing
in-eligible candidates first.
11. Lastly, it is submitted that the present matter is fully
covered by the judgment of this Hon’ble Court in Veer
Kunwar Singh University Ad hoc Teachers Association
and Ors. vs. The Bihar State University (C.C.) Service
Commission and Ors; (2009)17SCC184 and therefore
deserves to be dismissed.