The State of Jharkhand Vs Arbind Kumar Lal

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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--------

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L.P.A. No. 245 of 2022

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The State of Jharkhand.

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The Principal Secretary, Human Resources Development Department now School Education & Literacy Department, Government of Jharkhand, Project Bhawan, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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The Director, Higher Education, Human Resources Development Department now the Director, Higher, Technical Education & Skill Development Department, Nepal House, P.O., P.S. Doranda & District Ranchi.

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… … Respondents/Appellants

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Versus

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Arbind Kumar Lal s/o Late Sushil Kumar Lal resident of 158 New A.G. Colony, Argora, P.O. & P.S. Argora, District Ranchi, Jharkhand.

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Mrs. Elani Purty w/o Santosh Purty, r/o Dibdih, Daudnagar Road No.4, P.O. & P.S. Doranda, District Ranchi, Jharkhand.

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Bhuwaneshwar Prajapati son of Sri Bandhu Prajapati, r/o 6/Panchwati, South Railway Colony, Ranchi, P.O. & P.S. Chutia, District Ranchi, Jharkhand.

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Yogendra Nath Mahto s/o Sri Motha Mahto, r/o House No.2156/C-14, Diwakar Nagar, Lalu Khatal Road, Bariatu, P.O. & P.S. Bariatu, District Ranchi, Jharkhand.

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… … Petitioners/Respondents

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The Management of Gossner College, Ranchi through its Secretary, Club Road, Ranchi, P.O., G.P.O., P.S. Hindpiri, District Ranchi.

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Ranchi University through the Vice Chancellor, Ranchi, P.O., G.P.O., P.S. Kotwali, District Ranchi.

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.. … Respondents/Respondents

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With

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L.P.A. No. 357 of 2022

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The State of Jharkhand.

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The Principal Secretary, Higher & Technical Education Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, DistrictRanchi.

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Page 1

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L.P.A. No. 245 of 2022 & Ors.

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The Director, Higher Education, Higher & Technical Education Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District-Ranchi.

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… … Respondents/Appellants

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Versus

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Dr. Christ Biswasi Meena Tirkey, aged 54 years, wife of Kishore Surin, resident of C/o Naving Raj Ecka, 62 New Garden, Sirom Toli, Old H.B. Road, Ranchi, P.O. & P.S. Chutia, District Ranchi.

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The Ranchi University, Ranchi through its Registrar, having its office near Saheed Chowk, P.O. G.P.O., P.S. Kotwali, Dsitrict Ranchi.

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The Management of Gossner College, Ranchi through its Secretary, Club Road, P.O., G.P.O., P.S. Lower Bazar, District Ranchi.

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.. … Respondents/Petitioner

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With

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L.P.A. No. 358 of 2022

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The State of Jharkhand.

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The Principal Secretary, Higher & Technical Education Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, DistrictRanchi.

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The Director, Higher Education, Higher & Technical Education Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District-Ranchi.

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… … Respondents/Appellants

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Versus

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Mahesh Chandra Mahto, aged about 71 years, son of Late Narayan Mahto, resident of Saheed Nirmal Mahto Colony, New Samlong, P.O. & P.S. Namkoom, District-Ranchi.

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The Ranchi University, Ranchi through its Registrar, having its office near Saheed Chowk, P.O., G.P.O., P.S. Kotwali, District-Ranchi.

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The Management of Gossner College, Ranchi through its Secretary, Club Road, P.O., G.P.O., P.S. Lower Bazar, District Ranchi.

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.. … Respondents/Petitioner

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With

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L.P.A. No. 359 of 2022

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The State of Jharkhand.

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The Principal Secretary, Higher & Technical Education Department, Government of Jharkhand, Nepal House, Ranchi.

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Page 2 L.P.A. No. 245 of 2022 & Ors.

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The Director, Higher Education, Higher & Technical Education Department, Government of Jharkhand, Nepal House, Ranchi. … … Respondents/Appellants

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Versus

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Asha Rani Kerketta, aged about 52 years, daughter of Nirbandha Kerketta, resident of Naya Toli, KM Road, Ranchi, P.O., G.P.O., P.S. Lower Bazar, District-Ranchi.

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Anita Anju Khess, aged about 50 years, wife of Sanjay Tigga, resident of Pathalkudwa, Albert Compound, Purulia Road, Ranchi, P.O., G.P.O., P.S. Lower Bazar, District Ranchi.

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Balbir Kerketta, aged about 52 years, son of Late Emil Kerketta, resident of Hulhundu, P.O. Hulhundu, P.S. Dhurwa, District Ranchi.

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The Ranchi University, Ranchi through its Registrar, having its office near Saheed Chowk, P.O., G.P.O., P.S. Kotwali, District-Ranchi.

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The Management of Gossner College, Ranchi through its Secretary, Club Road, Ranchi.

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.. … Respondents/Petitioner

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With

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L.P.A. No. 360 of 2022

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The State of Jharkhand.

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The Principal Secretary, Higher & Technical Education Department, Government of Jharkhand, Nepal House, Ranchi.

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The Director, Higher Education, Higher & Technical Education Department, Government of Jharkhand, Nepal House, Ranchi.

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… … Respondents/Appellants

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Versus

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Dr. Sumanta Kumar Sengupta, aged about 59 years, son of Late Ranesh Chandra Sengupta, resident of 2K/47, Housing Colony, Bariatu, Ranchi, P.O. R.M.C.H., P.S. Bariatu, District Ranchi.

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Basudev Dutta, aged about 59 years, son of Late Bhagirath Dutta, resident of Dwarikesh Apartment, 25 Peace Road, Lalpur, Ranchi, P.O. Lalpur, P.S. Lalpur, District Ranchi.

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The Ranchi University, Ranchi through its Registrar.

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The Management of Gossner College, Ranchi through its Secretary, Club Road, Ranchi.

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.. … Respondents/Petitioner

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L.P.A. No. 245 of 2022 & Ors.

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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….. For the Appellants : Mr. Rajiv Ranjan, Advocate General Mr. Ashutosh Anand, AAG-III Mr. Sharad Kaushal, AC to AAG-III Ms. Rishi Bharati, AC to AAG-III Mr. Ratnesh Kumar, SC (L&C)-I For the Resp.-University : Mr. Anoop Kr. Mehta, Advocate Mr. Amit Kr. Sinha, Advocate For the Pvt. Resps. : Mr. Rajendra Krishna, Advocate Mr. Amit Sinha, Advocate Mr. Pratyush Shoumilya, Advocate Mr. Shubham Mayank, Advocate Mr. Manish Kumar, Advocate Ms. Ratna Prabha, Advocate

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C.A.V. on 09^th May, 2024 Pronounced on 24/06/2024 Per Sujit Narayan Prasad, J.:

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The issue involved in all these appeals is common, as such, have been directed to be listed together for their analogous hearing.

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All the appeals have been listed together today and as such, hearing has been given for consideration of the issue.

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Prayer:

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The instant appeals under clause 10 of the letters patent are directed against the orders/judgments dated 09.11.2020; 08.03.2022; 10.03.2022; 25.03.2021; and 07.04.2021 passed by the learned Single Judge in W.P.(S) No. 2620 of 2015; W.P.(S) No. 2850 of 2021; W.P.(S) No. 3059 of 2021; W.P.(S) No. 1088 of 2021; and W.P.(S) No. 1023 of 2021, respectively, whereby and whereunder, the writ petitions have allowed directing the concerned respondents to release appropriate sanction/grant-in-aid in favour of the college in question for payment of salary to the incumbents who are holding the sanctioned post within a period of four months and on receipt of such amount the college authorities are directed to pay the salary to the petitioners who are holding such sanctioned post including the arrears of salary for which they are legally entitled within a period of two months.

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L.P.A. No. 245 of 2022 & Ors.

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Facts:

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The brief facts of the case as per the pleading made in the writ petitions which requires to be enumerated herein, read as under:

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All the writ petitioners/ respondents are working as lecturers in different departments in Gossner College. The grievance of the writ petitioners of writ petitions being WP (S) No. 2620 of 2015, WP (S) No. 2850 of 2021, WP (S) No. 1088 of 2021 and WP (S) No. 1023 of 2021 are that that they are being deprived of 6th/ 7th pay revision however, writ petitioner of WP (S) No. 3059 of 2021 prayed for fixation of pension in terms of 6th Pay Revision and all the consequential benefits arising out of 6th pay revision with arrears of salary.

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It is the case of the writ petitioners that the governing body of the college with the concurrent of Bihar college service commission approved the appointment of petitioners on different dates. All the appointments of the petitioners were made on duly sanctioned post after following the procedure prescribed under the law.

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Some of the names of the petitioners were sent to JPSC (Jharkhand public service commission) and some were recommended by the JPSC for the appointment in Sr. scale lecturers.

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The writ petitioners were promoted by the JPSC and despite of their promotions the writ petitioners are getting benefit of 5th pay revision instead of 6th/7th pay revision. To put forth their grievance writ petitioners made several representations before the competent authority however in vain.

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It is the case of the petitioners that as they are working on a sanctioned post without financial assistant by the State Government under Section 35 of the Jharkhand State Universities Act as such, the State Government is not releasing funds however they are releasing funds to only those lecturers who are working on sanctioned post with financial assistance.

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L.P.A. No. 245 of 2022 & Ors.

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However, identically placed lecturers in the college on the sanctioned post without financial assistance in which petitioners are also working filed writ petition being writ petition no. CWJC no. 3495 of 1992 (R) for a direction upon the respondents state to provide financial assistance and the Learned Single Judge while allowing the writ petition on 20.08.1999 directed the State authority to release fund to the college in question for payment of salary to the incumbents.

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The State being aggrieved with the order preferred the appeal being LPA No. 158 of 2000 (R) which however was dismissed.

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Writ petitioners claimed that their cases are on similar footing with that of CWJC no. 3495 of 1992 (R) and therefore by not providing the 6th/ 7th pay revision they are being aggrieved with the action of the respondents thus preferred writ petitions being WP (S) No. 2620 of 2015, WP (S) No. 2850 of 2021, WP (S) No. 3059 of 2021, WP (S) No. 1088 of 2021 and WP (S) No. 1023 of 2021 which have been allowed, against which the present appeals have been preferred.

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It is evident from the factual aspect based upon the pleading made as referred hereinabove that the writ petitioners have been appointed as lecturer in different subjects on different dates.

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The factual aspect as has been agitated on behalf of the respective respondents/writ petitioners is that the post was duly advertised by the Commission and thereafter, in view of the approval of the governing body, the appointments were made and all the respondents/writ petitioners are continuing since the date of their appointments. Subsequent thereto, based upon the recommendation made by the Jharkhand Public Service Commission, they have also been given the benefit of senior selection grade and the career advancement scheme.

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The respondents-writ petitioners claiming the benefit based upon the 6^th Pay Revision by filing representations but no decision had been taken, hence, writ petitions were filed claiming therein that all the respondents/writ petitioners are working in view of the post created by the State Government under Section 35 of the Jharkhand State

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L.P.A. No. 245 of 2022 & Ors.

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University Act but the State Government is not releasing fund so far as the respondents/writ petitioners are concerned, however, funds are being released only to those teachers who are working on sanctioned posts with financial assistant which according to the respondents/writ petitioners is highly arbitrary.

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The ground has also been taken that the identically placed lecturers working in the college in question, namely, Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho have been given the benefit in pursuance of the direction passed by this Court in C.W.J.C. No. 3495 of 1992(R) as also in view of the judgment passed by the Hon'ble Apex Court in State of Bihar & Ors. vs. Syed Asad Raza & Ors., AIR 1997 Supreme Court 2425 .

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The learned Single Judge had called upon the State wherein the ground was taken that if the case of the respondents-writ petitioners will be found on similar footing, similar benefits would be granted to them what has been granted to Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho.

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The learned Single Judge after taking into consideration the rival submissions made on behalf of the parties, has disposed of the writ petitions holding the respondents-writ petitioners entitled for the salary who are holding the sanctioned post within a period of four months and on receipt of such amount the college authorities are directed to pay the salary to the petitioners who are holding such sanctioned post including the arrears of salary for which they are legally entitled within a period of two months.

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The State, being aggrieved with the said orders/judgments, has filed the instant appeals.

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Argument on behalf of the learned counsel for the appellants:

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Mr. Rajiv Ranjan, learned Advocate General has raised the following grounds in assailing the impugned order:

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(i) The ground inter alia taken by the appellant-State before the learned Single Judge was that if the case of the respondents-writ Page 7 L.P.A. No. 245 of 2022 & Ors.

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petitioners will be found on similar footing, similar benefits would be granted to them what has been granted to Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho but the order to that effect has not been passed rather direction has been passed holding the respondents-writ petitioners entitled for the benefits and in consequence thereof, direction was issued upon the respondents to release the salary as also the entire arrears of salary, hence, the learned Single Judge while accepting the stand taken by the State that the requirement to consider the case of the respondents/writ petitioners whether it is identically placed would be the case of Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho and without considering the aforesaid issue has held the respondents/writ petitioners entitled for the said benefit, hence, the impugned order/judgment suffers from impropriety, as such, the same is not sustainable in the eyes of law.

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(ii) The ground has been taken that the case of Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho are not identically placed since their cases were prior to the decision of the State dated 09.12.1982, whereby and whereunder, the erstwhile State of Bihar has taken decision of no grant-in-aid benefit is to be given on the basis of the policy of the creation of the post having no financial aid.

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The submission has been made that in the case of Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho as also in State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra), the posts had been created prior to coming into effect of the policy decision dated 09.12.1982 but herein, all the posts have been created post 09.12.1982, hence, the judgment relied upon by the learned counsel for the respondents/writ petitioners before the learned Single Judge is not identically placed and the same has not been examined and that is the reason the State has taken the ground that the case of the respondents/writ petitioners are to be examined based upon the factual aspect with the case of Dr.

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Page 8 L.P.A. No. 245 of 2022 & Ors.

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Jitendra Prasad Sinha and Smt. Manju Khalkho but even then the case as per the submission made hereinabove are entirely different to that of the case of the present respondents/writ petitioners and even the factual aspect of the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) is quite different to that of the present case but the learned Single Judge without considering the factual aspect of the aforesaid case, has allowed the writ petitions applying the said judgment.

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(iii) The ground has been agitated that once the policy decision has been taken by the State Government on 09.12.1982 not to give any benefit of grant-in-aid to any of the institutions including the minority institutions and if any appointments are being made even against the sanctioned post having been sanctioned post 09.12.1982, no grant-in-aid is to be given.

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(iv) So far as the minority and religious institutions are concerned, even in the aforesaid institutions, the mandatory requirement of the creation of post is the valid sanction as warranted under Section 35 of the University Act.

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(v) The factual aspect of the present cases is that all the respondents/writ petitioners have been appointed post 09.12.1982 and in view of the policy decision of the State Government, no such benefit of grant-in-aid can be granted.

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Learned Advocate General appearing for the appellant-State, based upon the aforesaid ground, has submitted that without appreciating the aforesaid facts, the learned Single Judge has passed the order, hence, the same is not sustainable in the eyes of law.

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Argument on behalf of the learned counsel for the Pvt. Respondents:

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Mr. Rajendra Krishna, learned counsel for the writ petitioners/respondents while defending the impugned order has taken the following grounds:

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L.P.A. No. 245 of 2022 & Ors.

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(i) It has been contended that the ground to file the appeals is basically non-applicability of the judgment rendered by the Hon'ble Apex Court in State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) but the said ground is not fit to be accepted reason being that there is well consideration of the factual aspect and the said judgment has been passed on the spirit of Section 35 of the University Act as also Article 30(2) of the Constitution of India.

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(ii) It has been contended that Article 30(2) of the Constitution of India prohibits any discrimination to the minority and religious institutions and taking into consideration the aforesaid constitutional mandate, the judgment has been passed in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra). The learned Single Judge has considered the aforesaid judgment after having taken note of the same in the impugned orders and the order since has been passed, therefore, the same does not suffer from any error.

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(iii) The question of applicability of the policy decision 09.12.1982 will not come in the way in view of the constitutional mandate as under Article 30(2) of the Constitution of India on the ground that the executive instructions or any statutory provisions if contrary to the constitutional mandate, the Constitution will prevail and not the executive instruction or the statutory provision.

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Learned counsel, based upon the aforesaid ground, has submitted that the learned Single Judge by relying upon the order passed in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) since has passed the order, hence, it cannot be said to suffer from error.

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Response on behalf of the learned counsel for the appellants:

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Learned Advocate General appearing for the State of Jharkhand has submitted in response to the submission advanced on behalf of the

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L.P.A. No. 245 of 2022 & Ors.

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learned counsel for the private respondents that the argument so far as it relates to the ground of applicability of Article 30(2) of the Constitution of India, the same is not applicable herein since the discrimination can only be said to be there if leaving apart the minority and the religious institutions, the benefit of grant-in-aid is being given to the other institutions but that is not the case, hence, the provision of Article 30(2) of the Constitution of India is not applicable.

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Analysis:

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This Court has heard the learned counsel for the parties, gone across the findings recorded by the learned Single Judge in the impugned order as also the material available on record.

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The factual aspect which is not in dispute in this case is that the policy decision dated 09.12.1982 was taken by the State of Bihar, whereby and whereunder, the decision has been taken that after the bifurcation of the intermediate level education from the graduate level, decision was taken by the State with respect to the recognition of colleges, grant and in connection with creation of the post in the constituent colleges.

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(i) The recognition up to the intermediate education, the same is to be granted by the Intermediate Education Council. The State Government will not grant any recognition up to the intermediate level. The extension in the recognition of any of the faculty will not be granted by the State Government rather by the Intermediate Education Council.

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(ii) The post will only be created in the constituent colleges after 19.10.1982 with the prior approval and sanction of the Finance Department.

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(iii) The affiliated colleges if recognizes the new faculty and creates teaching and non-teaching posts then the financial burden will have to be borne by the respective colleges and not by the State Government.

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L.P.A. No. 245 of 2022 & Ors.

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(iv) As per the decision, the financial burden which are being borne by the State Government will remain to be continued.

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For ready reference, the policy decision dated 09.12.1982 is being referred as under:

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“ (्ቚतितिति- संक्ቜ स० 1065, तिन ंक 9 तिस्ቚ र 1982)

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तिषय - 19 अ्ሹू बर 1982 को बबहार मंबिपररषद् की हुई बैठक में महाबि्ቕालयों के स्ቚं धन, अनुदान तथा अंगीभूत महाबि्ቕालयों में पद सृजन के स्ቚं ध में नयी नीबत का बनधाारण।

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बबहार रा्ቋ में इ्ቇ रमीबियट बि्ቌा में एकरूपता लाने, इ्ቇ रमीबियट बि्ቌा की िस्था करनेिाले बिबभ्ቐ संस्थाओं में सम्ቝ य स्थाबपत करने, बि्ቫबि्ቕालयों के इ्ቇ रमीबियट बि्ቌा को पृथक करने तथा इ्ቇ रमीबियट र के बि्ቌा संस्थाओं के समुबित संिालन के बलए बबहार इ्ቇ रमीबियट बि्ቌा पररषद की स्थापना बबहार इ्ቇ रमीबियट बि्ቌा पररषद् अ्ቖ ादेि, 1980 के ्ቛारा की गयी है। इ्ቇ रमीबियट बि्ቌा पररषद् की स्थापना के फल्ቭ रूप सभी पहलुओं पर बििार कर रा्ቋ सरकार ने महाबि्ቕालयों के स्ቚं धन, अनुदान तथा अंगीभूत महाबि्ቕालयों में पद सृजन के बलउ बनम्ांबकत बनणाय बलया है:-

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(1) अब से इ्ቇ रमीबियट र का स्ቚ धन इ्ቇ रमीबियट बि्ቌा पररषद् के ्ቛारा ही बदया जायेगा। रा्ቋ सरकार इ्ቇ रमीबियट र तक स्ቚं धन नहीं देगी। पूिा में रा्ቋ सरकार ्ቛारा बदए गए इ्ቇ रमीबियट र के स्ቚं धन का िगीकरण तथा बकसी नये संकाय में नया स्ቚ धन भी ठनटरमीबियट बि्ቌा पररषद् ्ቛारा ही बदया जायेगा।

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(2) अंगीभूत महाहि्ቕालयों में ही बदनाक 19 अ्ሹू बर 1982 के बाद से जो भी नये पद सृबजत करना होगा उनकी ीकृबत बि्ቈ बिभाग की पूिा सहमबत ्ቚा्቎ करने के बाद ही की जायेगी।

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(3) स्ቚ्ቍ महाबि्ቕालयों के बकसी नये संकाय के स्ቚं धन तथा बि्ቌक एिं बि्ቌके्ቈर कमािाररयों के नये पद के सृजन के फल्ቭ रूप ऐसे महाबि्ቕालयों में होनेिाले अबतरर्ሹ बि्ቈीय भार का िहन रा्ቋ सरकार ्ቛारा नहीं बकया जायेगा। अबतरर्ሹ बि्ቈीय भार का िहन स्ቚं बधत महाबि्ቕालयों को यं करना होगा।

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सरकार (4) रा्ቋ सरकार ्ቛारा अबतक बलए गए बनणाय के अनुसार जो बि्ቈीय भार रा्ቋ ारा िहन बकया जा रहा है िह पूिाित रा्ቋ सरकार ्ቛारा िहन बकया जाता रहेगा।

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(5) बकसी महाबि्ቕालय को एक ही साथ सीधे बि्ቇी र तक का स ् धन नहीं बदया जायेगा।“

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The crux of the ground as has been taken on behalf of the appellantState is the policy decision dated 09.12.1982. The ground has been taken that all the writ petitioners have been appointed after 19.10.1982, as such, there cannot be any direction for bearing the financial burden of their appointment.

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L.P.A. No. 245 of 2022 & Ors.

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While on the other hand, the writ petitioners have taken the ground that their cases are squarely covered by the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) as also has taken aid of Article 30(2) of the Constitution of India.

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The learned Single Judge relying upon the judgment rendered by the Hon'ble Apex Court in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra), has allowed the writ petitions, therefore, the requirement of this Court is to consider as to whether on the factual aspect, the case of the judgment rendered in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) or in C.W.J.C. No. 3495 of 1992(R) [Dr. Jitendra Prasad Sinha and Anr. vs. The Ranchi University, Ranchi and Ors.] is squarely covered with the case of the writ petitioners or the judgment passed by the Patna High Court in the case of L.P.A. No. 430 of 2014 [The State Government vs. Parwati Kumari and Ors.].

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This Court, before answering the said issue, needs to refer herein the factual aspect of the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra). It is evident from the factual aspect as discussed at paragraph-4 that the Syed Asad Raza and Ors. were working in Maulana Azad College, Ranchi established in 1970 as a minority institution. An agreement was executed on 15.12.1972, by which, it was agreed that no new posts shall be created in the College without obtaining prior permission of the Vice-Chancellor. Two posts were created by the Governing Body on 07.09.1975. One Anup Narain Singh and one Pandey Janardhan Prasad were appointed on 08.04.1976. Pandey Janardhan Prasad ceased to work from 10.02.1979. Thereafter, the first respondent, Syed Asad Raza came to be appointed on 01.07.1979. The question has been formulated that whether the prior sanction from the Vice-Chancellor for the post to which Syed Asad Raza came to be appointed is a precondition? Section 35 of the Bihar State Universities Act, 1976 has stepped which provides that (1) no post for appointment shall be created without the prior sanction of the State Government. Notwithstanding anything contained in this Act, no

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University or any College affiliated to such a University, except such College—

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(a) as is established, maintained or governed by the State Government; or

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(b) as is established by a religious or linguistic minority;

¶152

(i) after the commencement of this Act no teaching or nonteaching post involving financial liabilities shall be created without the prior approval of the State Government.

¶153

(ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance:

¶154

Provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance.

¶155

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 post without the prior approval of the State Government:

¶156

Provided that the approval of the State Government 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.

¶157

The Hon'ble Apex Court has interpreted the said provision that after coming into force of the Bihar State Universities Act, 1976 w.e.f. 16.05.1976, it is enjoined that for appointment of a teacher prior approval of the State Government is necessary. However, exceptions have been engrafted in respect of (a) the institution run by the State Government and (b) institution established by a religious or linguistic minority. Even the non obstante clause in sub-section (2) also makes exceptions to the clauses (a) and (b) of sub-section (1) of Section 35 of the Act.

¶158

The Hon'ble Apex Court has further made an observation that for the creation of a post in a minority institution for the appointment

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thereof, prior approval of the University Vice-Chancellor or the State Government, is not a precondition. The question, therefore, is whether such an appointee, the first respondent is entitled to the payment of the grant-in-aid. By operation of clause (1) of Article 30, all minorities, whether based on religion or language, shall have the right to establish an educational institution of their own choice. Under clause (2) of Article 30, the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

¶161

For ready reference, paragraph-5 of the said judgment is being referred as under:

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“5. A reading of the above clearly indicates that after coming into force of the Bihar State Universities Act, 1976 w.e.f. 16-5-1976, it is enjoined that for appointment of a teacher prior approval of the State Government is necessary. However, exceptions have been engrafted in respect of (a) the institution run by the State Government and (b) institution established by a religious or linguistic minority. Even the non obstante clause in sub-section (2) also makes exceptions to the clauses (a) and (b) of sub-section (1) of Section 35 of the Act. Thus, it could be seen that for the creation of a post in a minority institution for the appointment thereof, prior approval of the University ViceChancellor or the State Government, is not a precondition. The question, therefore, is whether such an appointee, the first respondent is entitled to the payment of the grant-in-aid. By operation of clause (1) of Article 30, all minorities, whether based on religion or language, shall have the right to establish an educational institution of their own choice. Under clause (2) of Article 30, the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

¶163

The Hon'ble Apex Court in the aforesaid background has held the respondent to the said appeal entitled to the payment of grant-in-aid

¶164

Similarly, the case of Dr. Jitendra Prasad Sinha and Anr., the judgment of which has also been referred in the impugned order which is available in the paperbook. The factual aspect of the said case is that the said Dr. Jitendra Prasad Sinha and Manju Khalkho were working in the Gossner College which is a minority institution but the writ petitioner no.1, i.e., Dr. Jitendra Prasad Sinha was appointed on 21.03.1979 and writ petitioner no.2, i.e., Smt. Manju Khalkho was

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appointed on 02.07.1979 to the post of Lecturer. Subsequently, they have been regularized vide decision dated 11.07.1980.

¶168

The learned Single Judge, based upon the appointment made in their favour which was prior to 09.12.1982 and relying upon the judgment passed in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) has allowed the said writ petition.

¶169

It needs to refer herein that either Syed Asad Raza and Ors. or Dr. Jitendra Prasad Sinha or Smt Manju Khalkho, all were appointees prior to 09.12.1982.

¶170

This Court is to consider in the aforesaid factual aspect regarding the applicability of the said judgment in view of the settled position of law that the applicability of the judgment is to be tested on the basis of the facts governing the case as has been held by the Hon'ble Apex Court in in Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75, wherein at paragraph-47 it has been held which reads as under:

¶171

“ 47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.””

¶172

Since the law is settled that the applicability of the judgment is to be tested on the basis of the factual aspect governing the case and as such, this Court is now proceeding to examine the applicability of both the judgment in the facts of the governing case, i.e., the present case.

¶173

The admitted position which can be said to be distinguishable factor so far as the applicability of both the judgments, i.e., in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) or the judgment passed in C.W.J.C. No. 3495 of 1992(R) [Dr. Jitendra Prasad Sinha and Anr. vs. The Ranchi University, Ranchi and Ors.] are concerned, will depend upon the date of appointment of the respondents/writ petitioners, i.e., whether the respondents/writ petitioners have been

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appointed prior to the policy decision dated 09.12.1982 or after the said policy decision.

¶177

The question, therefore, would be that when the Government has taken a policy decision not to extend any financial benefit in view of the policy decision dated 09.12.1982 against the appointment if made by the affiliated colleges then where is the question to direct the State Government to make payment. Whether issuance of such direction will be considered to be in the teeth of the policy decision of the State Government dated 09.12.1982. Whether the said benefit can be granted without assailing the said policy decision.

¶178

All these three issues since are interlinked, as such, are being dealt

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with together.

¶180

The policy decision dated 09.12.1982 has not been questioned rather the sole ground was taken that irrespective of the policy decision dated 09.12.1982, the financial benefit is to be borne by the State Government on the ground that the post has been created with the approval of the State Government.

¶181

We have already referred the policy decision dated 09.12.1982, whereby and whereunder, the State has taken decision not to give any financial benefit irrespective of the post said to be created with the approval of the State Government rather if the posts are being created after 19.10.1982, the financial burden is to be borne by the respective colleges with the further decision that the benefit which are being given prior to 19.10.1982, the same will be continued.

¶182

The factual aspect of the cases of Syed Asad Raza & Ors. and Dr. Jitendra Prasad Sinha and Smt. Manju Khalkho are quite different reason being that they have been appointed prior 09.12.1982 and they were being given the benefit of grant-in-aid even after issuance of the policy decision dated 09.12.1982 which is as per the decision of the State as per condition no.4 of the policy decision wherein decision was taken that the financial burden which was being borne by the State Government as per the policy decision will be continued to be borne by the Government.

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L.P.A. No. 245 of 2022 & Ors.

¶185

But herein, this Court is to examine whether the case of the writ petitioners will come under the fold of condition no.3 or condition no.4. As per condition no.3 which pertains to affiliated colleges, the issue of recognition of new faculty and creation of teaching and non-teaching staff, the financial burden is not to be borne by the State Government.

¶186

Since, we are dealing with the affiliated colleges and hence, condition no.3 is relevant. The said policy decision explicitly refers that after 19.10.1982 if the post of teaching and non-teaching will be created then the financial burden will not be borne by the State Government.

¶187

The ground has been taken that the Hon'ble Apex Court has taken into consideration the implication of Article 30(2) of the Constitution of India wherein it has been mandated that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. For ready reference, Article 30(2) of the Constitution of India is being referred as under:

¶188

“ 30. Right of minorities to establish and administer educational institutions.—

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(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

¶190

It is, thus, evident from the constitutional mandate that it is not available for the State Government to discriminate against any educational institution in granting aid based upon that it is under the management of minority or religion or language, therefore it is evident that the aforesaid constitutional mandate provides prohibiting the State not to discriminate in the matter of grant-in-aid to the minority or the institutions based either on religion or language.

¶191

This Court needs to refer herein that the grant-in-aid is only to be given by way of financial aid to the affiliated colleges or minority or institutions based on religion or language. Thus, the affiliated colleges which were also getting grant-in-aid prior to policy decision dated

¶192

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09.12.1982 shows the institutions run under the management of the minority or based on religion or language.

¶194

But, the argument has been advanced on behalf of the writ petitioners that discrimination has been made. If the grant-in-aid will not be given to the institutions which is being run under the management of minority then it will be said to be discrimination and in consequence, the same will be in the teeth of clause 2 of Article 30 of the Constitution of India.

¶195

The aforesaid provision has although been taken note by the Hon'ble Apex Court in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) but that is altogether with context based upon the consideration on the date of appointment which was prior to the policy decision dated 09.12.1982.

¶196

This Court, therefore, is to consider as to whether the writ petitioners have been able to make out a case of subjecting them to hostile discrimination said to be in the teeth of Article 30(2) of the Constitution of India. But we have not found anything in the pleading to that effect and the same cannot be, due to the reason that the policy decision dated 09.12.1982 by which the State Government has already resolved that the financial burden of creation of new faculty or the post of teaching and non-teaching employees will not be borne by the State Government. Thus, it means that the word affiliated colleges has been referred under condition no.3 of the policy decision dated 09.12.1982 and if during the existing period of the same, some of the affiliated colleges are being given financial aid, leaving apart the institutions under the management of minority or based on religion or language, then it could be understood that the act of State Government is discriminatory in view of the constitutional mandate as under clause 2 of Article 30 of the Constitution of India. But this Court, after going through the entire pleading and even going through the impugned order has not found such pleading available.

¶197

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L.P.A. No. 245 of 2022 & Ors.

¶199

This Court also needs to refer one judgment of the Division Bench of Patna High Court rendered in L.P.A. No. 430 of 2014 [The State Government and Ors. vs. Parwati Kumari and Ors.] which is being taken note herein due to the reason that therein the policy decision dated 09.12.1982 was also the subject matter. Since the policy decision dated 09.12.1982 is pre-bifurcation of the State, hence, the same has been taken note herein for the purpose of its persuasive value.

¶200

It is evident that the Patna High Court has considered the import of the policy decision dated 09.12.1982 as under paragraph-21 by making reference of the stand of the State by which the Government has denied the said claim of financial aid on the basis of the policy decision dated 09.12.1982. The Patna High Court came to the conclusion that no such benefit can be granted in view of the said policy decision.

¶201

So far as the issue of hostile discrimination is concerned, it has also been dealt with discarding the said ground on the basis of the policy decision of the Government which has universally been applied to all the identical places. It has also been taken note that the aforesaid decision of the Patna High Court has been declined to be interfered with by the Hon'ble Apex Court vide order dated 09.07.2018 passed in Special Leave Petition (Civil) No. 019302 of 2018 (Diary No.21358 of 2018)

¶202

The ground has been taken on behalf of the State appellant that all the writ petitioners have been appointed after 19.10.1982 and as per the condition stipulated under condition no.3 it will be made applicable to the appointees who have been appointed after 19.10.1982 and no financial benefit will be given by the State Government.

¶203

This Court in view of the aforesaid discussion is now to consider the finding so recorded by the learned Single Judge in the impugned order.

¶204

Conclusion:

¶205

It is evident from the impugned orders that the learned Single Judge has relied upon the judgment passed by the Hon'ble Apex Court in State of Page 20 L.P.A. No. 245 of 2022 & Ors.

¶206

Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) and the judgment passed in C.W.J.C. No. 3495 of 1992(R) [Dr. Jitendra Prasad Sinha and Anr. vs. The Ranchi University, Ranchi and Ors.] but, we have not found the discussion of the factual aspect involved in the said cases.

¶207

It needs to refer herein that it is incumbent upon the Court of Law that if any judgment is being relied upon then the factual aspect of the said judgment is to be referred by applying the same or by making comparison of its applicability with the facts of the case in hand but we have not found such endeavour on the part of the learned Single Judge.

¶208

This Court, in order to come to the conclusion with respect to the applicability of the condition no.3 of the Circular dated 09.12.1982 of the Education Department, Bihar, is of the view that the cut-off date is 19.10.1982 and if any appointment has been made post 19.10.1982 in view of the circular of the Education Department, Bihar the same will not be entitled for any financial benefit which contrary to that, if the appointment has been made prior to 19.10.1982, the financial benefit will be granted by the State Government.

¶209

The aforesaid cut-off date is having bearing upon the entitlement of one or the other writ petitioners. The same can only be assessed based upon the valid date of appointment order.

¶210

This Court, from the pleading of the writ petitions and the memo of appeal, has also not found the specific date of appointment of some of the writ petitioners while some of the writ petitioners have referred their date of appointment.

¶211

This Court, therefore, is of the view that while applying the judgment rendered in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) and the judgment passed in C.W.J.C. No. 3495 of 1992(R) [Dr. Jitendra Prasad Sinha and Anr. vs. The Ranchi University, Ranchi and Ors.], without verifying its applicability based upon the policy decision dated 09.12.1982 in absence of the appointment letter

¶212

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or even the date of appointment of some of the writ petitioners, the applicability so made of the aforesaid judgments suffers from error.

¶215

This Court, therefore, is of the view that before holding the writ petitioners entitled for the benefits as has been prayed, it was incumbent upon the learned Single Judge to call upon the parties to give their specific appointment date with the appointment letter in support of the said date since the same is crucial for determining the claim of one or the other writ petitioners but without appreciating the aforesaid aspect of the matter, the order has been passed.

¶216

This Court, in view of the non-consideration of the factual aspect for the purpose of deciding the entitlement of one or the other writ petitioners which ought to have been taken into consideration by the learned Single Judge while holding the writ petitioner entitled for the said benefit by assessing their appointment as to whether they have been appointed prior to 19.10.1982 or post 19.10.1982 but without doing the said exercise, the learned Single Judge by applying the judgment rendered by the Hon'ble Apex Court has held the writ petitioners entitled for the benefit therefore, the entitlement of the writ petitioner is required to be considered afresh by the respondents based upon their date of appointment so that the decision be taken on behalf of the State.

¶217

The writ petitioners if will be able to satisfy that the appointment is pre 19.10.1982 then certainly the judgment passed in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra) will be applicable with respect to such writ petitioners and the financial benefit be given but if the appointment is found to be post 19.10.1982, then no such benefit is to be given to such appointees and order shall be passed assigning the reason of denial of such claim.

¶218

Accordingly, the impugned orders/judgments dated 09.11.2020; 08.03.2022; 10.03.2022; 25.03.2021; and 07.04.2021 passed by the learned Single Judge in W.P.(S) No. 2620 of 2015; W.P.(S) No. 2850

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of 2021; W.P.(S) No. 3059 of 2021; W.P.(S) No. 1088 of 2021; and W.P.(S) No. 1023 of 2021, respectively are hereby quashed and set aside.

¶222

The matter is being remitted before the Secretary, Higher Education, the concerned respondent is directed to take appropriate decision after calling and verifying the records from the concerned college for the purpose of ascertaining the date of appointment for the purpose of applying the policy decision dated 09.12.1982 and if it is found that one or the other writ petitioners are covered with the said policy decision based upon the date of appointment as also the judgment rendered in the case of State of Bihar & Ors. vs. Syed Asad Raza & Ors. (supra), then the consequential relief shall be granted.

¶223

In case of denial of claim, the same be communicated forthwith.

¶224