Allowed

Ghanshyam Jha v. The State Of Bihar

Patna HC1 Feb 2023CWJC/808/2019

Case brief

AI extract

What is this about?

Writ petitions challenging State Government orders refusing salary release and regularization to teachers appointed by affiliating university without Commission recommendation. Court quashed orders and directed salary release for all grants.

What did the court decide?

Impugned orders quashed. Directing release of grant for salary distribution and pensionary benefits treatment for retired teachers within one month.

Ghanshyam Jha Vs The State Of Bihar — Pension and Retirement Benefits | Patna HC (2023)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.250 of 2019

¶2

======================================================

¶3

Balram Pandey Son of Late Dhanushdhari Pandey, Resident of VillageJaitiya, P.O.- Jaitiya, P.S.- Chanpatiya, District- West Champaran.

¶4

... ... Petitioner/s

¶5

Versus

¶6

1. The State Of Bihar and Ors

¶7

The Additional Secretary, Education Department, Govt. of Bihar, Patna.

¶8

The Director, Higher Education, Education Department, Govt. of Bihar, Patna.

¶9

The Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga through its Vice Chan

¶10

The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga.

¶11

The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga.

¶12

The Secretary, Harihar Sanskrit College, Bakulahar Math, Chanpatiya, District- West Champaran.

¶13

The Principal, Harihar Sanskrit College, Bakulahar Math, Chanpatiya, District- West Champaran. ... ... Respondent/s

¶14

======================================================

¶15

with Civil Writ Jurisdiction Case No. 808 of 2019

¶16

======================================================

¶17

Ghanshyam Jha S/oj Late Harikant Jha Resident of Village-Maranchi Khurd,P.S. Bachhawara,Dist.-Begusarai,At present posted as Assistant Professor in Sahitya Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

¶18

Indradeo Jha S/o Late Kamdev Jha Resident of Village-Dhuriakha,P.S. Mufasil (Samastipur),dist.-Samastipur,At present posted in Histrory Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

¶19

Rudranand Jha S/o Late Visheshwar Jha Resident of Village-Hulash,P.s. Raghopur,Dist.-Supoul. At present posted as Assistant Professor in Vyakaran Department of Saraswati Bilash Sanskrit Collge Shokahara,Barouni,Begusarai

¶20

Raj Kumar jha S/o Late Gangadhar Jha Resident of Village-Rahimpur rudouli,P.S.Mufasil (Samnastipur) Dist.-Samastipur.At present posted as Assistant Professor in Economics Department of Saraswati Bilash Sanskrit College Shokahara,Barouni,Begusarai

¶21

Chandrabhushan Trivedi S/oj Late Krishna Nand Trivedi Resident of Village-Madhurapur,P.s. Teghra,Dist.-Begusarai.At present posted as Assistant Professor in Sanskrit College Shokahara,Barouni,Begusarai

¶22

Narayanj Upadhyay S/o Ramprapannacharaye, Resident of Village-

¶23

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 2/15

¶24

Basaukaia,P.S. Sikroul Lakh,dist.Buxar.At present posted as Assistant Professor in Sahitya Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

¶25

Vashistha Narayan Ojha S/o Late Ramchandra Ojha Resident of VillageGadhiyan,P.S. Sikroul Lakh,Dist.-Buxar. At present posted as Assistant Professor in Political Science Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

¶26

Hari Narayan Pandey S/o Late Rampujan Pandey Resident of VillageGeruabandh, P.S. Itarhi, Dist.-Buxar. At present posted as Assistant Professor in Hindi Department of shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

¶27

Chhavinath Tripathi S/o Late Mahesh Tripathi Resident of VillageChikhuriya,P.s. Chenari,Dist.-Rohtas. At present posted as Assistant Professor in Vyakaran Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

¶28

Daya Shankar Tiwari S/o Late Raghunath Tiwari Resident of VillageTiwaripur,P.S. Barisar,Dist.-Gajipur(U.P.). At present posted as Assistant Professor in Sanskrit Department of Shri Niwas Mukund Ramanuj Sanskrit College,Basawankala,Buxar

¶29

Raghu Nandan Jha S/o Late Dasharath Jha Resident of VillageJhandapur,P.S. Bihpur,Dist.Bhagalpur. At present posted as Assistant Professor in Vyakaran Department of Goswami Lakshminath Madhusudan Sanskrit College Bangawan,Saharsa.

¶30

Bal Ram Jha S/o Late Budhan Jha Resident of Village-Lalmanpatti,P.S. Ratanpur,Dist.Supoul. At present posted as Assistant Professor in Jyotish Department of Goswami, Lakshminath Madhusudan Sanskrit College,Bangawan,Saharsa

¶31

Hari Mohan Khan S/o Late Ramsundar Khan Resident of VillageBangawn,P.S. Bangawn,Dist.Saharsa. At present posted as Assistant Professor in Maithili Department of Goswami Lakshminath Madhusudan Sanskrit College,Bangawan,Saharsa

¶32

Gulab Chandra Mishra S/o Late Bhallar Mishra Resident of Village-Lagma Rambhadrapur,P.S. Sakatpur,Dist.-Darbhanga. At present posted as Assistant Professor in Sahitya Department of Kirti Narayan Kamakhya Sanskrit College Maharail,Madhubani

¶33

Khelanath Jha S/o Late Medhanath Jha Resident of Village-Raiyam,P.S. Bhairawsthan,Dist.Madhubani. At present posted as Assistant Professor in English Department of Kirti Narayan Kamakhya Sanskit College Maharail,Madhubani

¶34

Nagedndra Kumar Jha S/o Late Rameshwar Jha Resident of VillageRanipur,P.S. Benipatti,Dist.Madhubani. At present posted as Assistant Professor in Engilish Department of Devshnakar Haldhar Chaudhary Sanskrit College Chanpura,Madhubani

¶35

Shivchandra Jha S/o Late Maneshwar Jha Resident of Village-Sarisav,P.S. Benipatti,Dist.Madhubani. At present posted as Assistant Professor in Vyakaran Department of Devshankar Haldhar Chaudhary Sanskrit College Chanpura,Madhubani

¶36

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 3/15

¶37

Pramod Kumar Jha S/o Late Ramlakhan Jha Resident of Village-Piprahi Punarwas,P.S. Purnahiya,Dist. Sitamadhi. At present posted as Assistant Professor in Political Science Department of Gurukul Sanskrit College Bairgania,Sitamadhi.

¶38

Neelambar Jha S/o Late Rewati Kant Jha Resident of VillageTelhara Kala,P.s. Kundwa Chaipur,Dist.-East Champaran. At present posted as Assistant Professor in Sahitya Department of Gurukul Sanskrit College Bairgania,Sitamadhi.

¶39

Suresh Mishra s/o Late Eknath Mishra Resident of VillageGharwara,P.S. Supi,Dist.-Sitamarhi. At present posted as Assistant Professor in Sahita Department of Gurukul Sanskrit College Bairgania, sitamarhi.

¶40

Umanath Rai S/o Late Gangadhar Rai Resident of Village-Dharha,P.S. Rosera,Dist.-Samastipur. At present posted as Assistant Professor in Vyakaran Department of Sanskrit College Rosera (Samstipur)

¶41

... ... Petitioner/s

¶42

Versus

¶43

The State Of Bihar through its Principal Secretary Human Resource Development Department Govt. of Bihar,Patna

¶44

The Director Higher Education Department Govt. of Bihar, Patna

¶45

The Kameshwar Singh Darbhangaj Sanskrit University, Darbhanga through its Registrar

¶46

The Vice -Chancellor Kameshwar Singh Darbhanga Sanskrit University,Darbhanga

¶47

The Registrar, Kameshwar Singh Darbhanga Sanskrit University,Darbhanga

¶48

... ... Respondent/s

¶49

======================================================

¶50

Appearance : (In Civil Writ Jurisdiction Case No. 250 of 2019) For the Petitioner/s : Mr. Prashant Sinha, Adv. Mr. Satish Kumar Pandey, Adv. For the State : Mr. Madanjeet Kumar- Gp20 For the University : Mr. Sanjay Singh, Sr. Adv. Mr. Deepak Kumar, Adv. (In Civil Writ Jurisdiction Case No. 808 of 2019) For the Petitioner/s : Mr. Sanjeev Kumar Jha, Adv. For the University : Mr. Sanjay Singh, Sr. Adv. Mr. Binay Kumar Singh, Adv. For the State : Mr. Kameshwar Kumar, GP 17 Mr. S.K. Ranjan, AC to GP 17

¶51

CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA

¶52

ORAL JUDGMENT

¶53

Date : 01-02-2023

¶54

The petitioners by way of this writ petition have prayed for

¶55

quashing of the letter dated 23.09.2018, whereby the Education

¶56

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 4/15

¶57

Department, State of Bihar has refused to release the grant for the teachers who were working in the various colleges under the Sanskrit University and were appointed by the University. In C.W.J.C. No. 808/2019 , the prayer has been made to provide release of salary of petitioners since June 2011 which has been withheld by the authorities concerned inspite of several proposals made by the University concerned and reminder sent to the State Authorities.

¶58

Brief facts which required to be noticed are as under :-

¶59

In C.W.J.C. No. 250/2019 , petitioner states that he had applied under an advertisement issued on 21.06.1979 for the post of Lecturer and he was appointed for a period of six months. The appointment was approved by the University and extension was granted till further orders with effect from 1st July 1983 vide order dated 30^th November 1983. He continued to draw salary and University confirmed the services in terms of decision of the syndicate vide letter dated 28.08.2010. Since February 2012, the petitioner’s salary was stopped. The Education Department sent a letter to the University to get the recommendation of selection committee in case of such teachers who are appointed by the governing bodies of the respective colleges. He attained superannuation on 31^st January 2016, but did not receive salary

¶60

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 5/15

¶61

for want of confirmation of service in terms of Section 57 (A) (6) vide order dated 29.02.2016. The University upon recommendations of the selection committee regularized the services of the petitioners with effect from 01.09.1977 but his retiral benefits were not released. He filed C.W.J.C. No. 18751/2017 before this Court. During the pendency of the writ petition the impugned order dated 23.09.2018 was passed and granting liberty to the petitioner to challenge the said order, the writ petition was disposed of and therefore the present writ petition has been filed.

¶62

In C.W.J.C. No. 808/2019 , it is stated that the petitioners had been appointed in several faculties against the sanctioned post of Assistant Professors in various affiliated colleges under the Kameshwar Singh Darbhanga Sanskrit University, Darbhanga after following due selection process. They were being granted salary till May 2011 as per U.G.C. pay scale but their salary was withheld by the authorities thereafter. Since June 2011, the same has not been released. Representations were made, whereafter the issue was taken up by the Government directing the Education Department to release the salary from June 2011. A C.W.J.C. No. 444/2018 was preferred by thirty seven teachers where directions were issued to the respondents on 11.05.2018

¶63

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 6/15

¶64

with following directions :-

¶65

“In view of above, the respondent-State, as well as the University are required to proceed further and ensure payment of salary within a maximum period of 3 months from the date of receipt/production of a copy of this order.

¶66

It is made clear that after Annexure 13, the State cannot take plea that the matter is pending at the level of the University, and in view of the para 19 of the counter affidavit of the State, the University cannot take plea that the matter is pending at the level of the State.

¶67

In view of the development noted above, the University and the State are required to see that the payments are made to the petitioners both arrears as well as current within the time frame indicated hereinabove.

¶68

With the aforesaid, the writ petition stands disposed of.”

¶69

In spite of above directions, the respondents did not release the salary. The Additional Secretary of the Bihar Legislative Council also directed to release the salary vide its order dated 06.07.2018, but the same was also not complied with and an order rejecting claim was passed on 23.09.2018, therefore fresh writ petition was filed.

¶70

This Court passed an order on 20^th August 2019 directing the State to file specific affidavit with regard to the recommendation of the University in C.W.J.C. No. 808/2019 . However, the same

¶71

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 7/15

¶72

was not complied with. Again on 05.09.2022, this Court directed the respondents to file the affidavit. Thereafter, an affidavit has been filed by the Deputy Director, Higher Education, Patna stating that the petitioners were appointed as temporary teachers in different colleges under Section 35 (2) of the Bihar State Universities Act 1976 which only provides for appointment for a period of six months. The same has to be continued only after further approval from the State. The University in consultation with the management of the colleges allowed them to continue the petitioners and salaries were paid to them up to the year 2011, when it was brought to the knowledge of the State Government the payment of salaries for such teachers was stopped. It is further stated that so far as amendment made under Section 57(A)(6) of the State Universities Act is concerned the same is to extend the benefits to teachers of affiliated colleges which are being provided grants taking into consideration the performance of the students appearing in the examination and the said amendment was not meant for the teachers of deficit grant affiliated colleges. It is asserted by the State that provisions of Section 57(A)(6) would have no application relating to the teachers working in the colleges which are receiving deficit grant-in-aid and therefore,

¶73

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 8/15

¶74

the request made by the University even after regularizing their services was not acceptable to the State Government and the letter dated 06.10.2022 has been placed on record to assert that the State grant is not required to be released for such teachers and they could not have been confirmed by the University. A similar stand has been taken by the State in C.W.J.C. No. 250/2019 .

¶75

Learned counsel appearing for the petitioners has invited attention to the Section 57(A)(6) of the Bihar State Universities Act 1976 which has been brought in force from 27^th August 2015 to submit that a selection committee was required to be formed for scrutinizing the cases of the teachers appointed without the recommendation of the Commission prior to 19.04.2007 in the affiliated degree colleges on the basis of the qualifications enforced at the time of appointment of six teachers till 31^st March 2018. The petitioners who were appointed in the respective colleges cannot be excluded from the said provision on the basis of the nature of grant being issued by the State Government.

¶76

I have considered the submission. It would be apposite to quote the amendment made in Section 57 (A) of the Bihar Universities Act 1976 notified as on 27^th August 2015 :-

¶77

“ Preamble :- Whereas, the State Government has taken a

¶78

Patna High Court CWJC No.250 of 2019 dt.01-02-2023

¶79

9/15

¶80

policy to abolish the Vitta Rahit Shiksha Niti and to provide grants to the institutions including degree colleges vide resolution no. 1846, dated 21.11.2008. In course of distribution of grants amongst the teachers of the affiliated.

¶81

2. Amendment in Section 57A of the Bihar Act 23, 1976 – In the Bihar State Universities Act, 1976 (Bihar Act 23, 1976), the following new sub-section (6) shall be added after sub-section (5) of Section 57A of Bihar Act 23 of 1976 :-

¶82

“(6) The Selection Committee, subject to this Act, will complete the scrutiny of the cases of the teachers of affiliated degree colleges appointed prior to 19.04.2007, without the recommendation of the Bihar College Service Commission on the basis of qualifications in force at the time of appointment of such teachers upto 31.03.2017, otherwise such appointments will not be treated valid. Thereafter the Governing Body of the college will accept the names recommend by the Selection Committee, which shall be finally approved by the concerned University. Distribution of the amount of grant sanctioned by the State Government will be made amongst the teachers in the concerned affiliated degree colleges by its Governing Body upto 31.03.2017.”

¶83

It appears that vide gazette notification of Act of 2017 , the Section 57(A)(6) was further amended and following provisions were added. The affiliated degree colleges has been added. The

¶84

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 10/15

¶85

amendment which was made in 2017, was on the basis of a Preamble which requires to be noticed. From the perusal of the aforesaid amendments and the Preamble to the amendment made on 4^th September 2017, it is apparent that the State Government wanted the Department to scrutinize all the cases of all those working teachers appointed without the recommendation of the Bihar College Service Commission without making any distinction between those who were receiving different kinds of grants namely the deficit grant or the grant against performance. It is noticed that the Vitta Rahit Shiksha Niti have been abolished by the State Government and therefore, no distinction could have been drawn by the State Authorities in between the teachers who were appointed in colleges which were receiving different types of grants. This Court, further finds that the University has in terms of provisions of Section 57 (A) exercise its power and scrutinize the cases of the petitioners and found them fit to be confirmed on their post. Recommendation for releasing of grant was sent to the State Government vide letter dated 25^th March 2019 informing that the teachers have been duly recommended for release of the salary. Opinion of the Additional Advocate General had already also been taken by the University before

¶86

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 11/15

¶87

sending the request for release of grant.

¶88

However, the Director, Education Department has rejected the request merely mentioning the provisions of Section 57 (A)(6) . The letter does not mention any reasons for not releasing the grant. In the circumstances, the Director, Education Department was called by the Court to be personally present in the Court to explain. Whereafter, she is present in the Court and states that since there are two different kinds of grants being released by the State Government, the provisions of Section 57(A)(6) would apply only to the affiliated colleges which are receiving grant for performance and not for those which are receiving grant in deficit. It is further stated that the work of regularizing/ confirming the services of the teachers is that of the University and not of the State Government and no approval is required from the State Government for the said purpose.

¶89

Having heard the Director, this Court finds that the University in its letter dated 25^th March 2019 does not request the Director to approve the appointments of the concerned teachers but on the other hand, states that the University has finally approved their services in terms of Section 57(A)(6) and requests the Department to release their salary.

¶90

It appears that the State Government and their officials have

¶91

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 12/15

¶92

adopted a stubborn approach and there is complete non application of mind on her part. Inspite of their being a direction issued by this Court earlier. In C.W.J.C. No. 444/2018 dated 11.05.2018 (supra), the salary of the teachers who have worked for the University for more than almost thirty years has been withheld from 2011/2012. It is an admitted position that all of them have been performing their duties till their superannuation. Some of them are still working. Article 23 of the Constitution of India provides as under :-

¶93

“23. Prohibition of traffic in human beings and forced labour.

¶94

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

¶95

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.”

¶96

In fact no person shall be asked to perform duties without being paid their due salary. No plausible reasons are coming forward for not taking appropriate action at that relevant time to remove these teachers if they were not appointed in accordance

¶97

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 13/15

¶98

with the law. The State Government has not passed any order directing the University to take any steps for removing them and in an arbitrary illegal manner contrary to the principles and ethos of the Constitution, direction has been issued to withhold the salary. Such action is an anaethema to the ethos of the Constitution as laid down under Article 21 of the Constitution of India . The action is depricated. This Court has reminded earlier in its order dated 11.05.2018 on similar footings. However, the State Government and its officials have failed to perform their duties as required and have passed orders without contesting the writ order passed by this Court in appeal. The action is contemptuous. However, instead of proceedings to initiate any contempt proceedings, this Court deems it appropriate to pass specific directions in the present case clarifying the entire position of law. Section 57(A)(6) carved out an exception to Section 57(A). It is to take care of the situation where the concerned colleges had appointed through their governing body teachers in a situation where the same were not available by the Commission. Said appointments were approved by the concerned University and they continued to perform their duties and were also being granted their due salary under the U.G.C. pay scale. It appears that in 2011, 2012, the

¶99

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 14/15

¶100

State officials arose from a slumber and objected to their appointment on the ground that their appointments had not been recommended by the concerned Commission. In 2000, the issue was taken up in Legislative Assembly and an amendment act was brought into force by issuing a notification on 27^th August 2015 which provided for scrutiny of cases of teachers of affiliated degree colleges appointed prior to 19.04.2007. The distinction on the basis of different grants was not mentioned in the amendment. However, the State Authorities have proceeded to carve out the distinction between the two. Admittedly, the colleges where the petitioners were performing their duties are affiliated to the University. In view thereof, the scrutiny of their cases was required to be done in terms of the amendment made on 27^th August 2015. It appears that the University has conducted that exercise and has made recommendations but the State Authorities did not accept it on a ground that the aid released is under the deficit grant and not under the grant against performance. Although, such a submission has been made before this Court and in the counter-affidavit the orders impugned do not reflect such a reason. Be that as it may, this Court is satisfied that there is no difference mentioned in the provision added to Section 57(A) vide notification dated 27^th

¶101

Patna High Court CWJC No.250 of 2019 dt.01-02-2023 15/15

¶102

August 2015 and no distinction can be drawn between the teachers who are appointed without recommendation of the Bihar College Service Commission for the purpose of scrutinizing their cases or for the purpose of releasing the grant. Such an approach adopted by the State Government has resulted in unnecessary litigation before this Court. The action of the State is found to be wanting and in view of above, the impugned orders passed by the respondent dated 23.09.2018 as well as the orders passed subsequently dated 06.10.2022 by the Director are quashed and set aside with further direction to release the grant to the concerned University for further distribution of salary and other allowances to the petitioners. Those who have retired shall also be granted their due pensionary benefits in terms of the U.G.C. pay scales. The exercise shall be conducted positively within a period of one month from today.

¶103

The writ petition stands allowed.

¶104

(Sanjeev Prakash Sharma, J)

¶105

Sachin/Item No. 3 & 4

¶106

AFR/NAFR CAV DATE Uploading Date Transmission Date

Ghanshyam Jha v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

Ghanshyam Jha v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Alok Kumar Vs The State Of Bihar and Ors.

Sanjay Kumar Vs The State Of Bihar and Ors.

Rajeev Kumar and Ors. Vs The State Of Bihar and Ors.

Dr. Narendra Kumar Vs The Magadh University

Anita Vs The State of Bihar

Amresh Kumar Vs The State Of Bihar and Ors.