Dr. Shailesh Kumar Sinha Vs The State of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1547 of 2018 In

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Civil Writ Jurisdiction Case No.4044 of 2010

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Dr. Shailesh Kumar Sinha Son of Sri Chhotu Singh, Resident of Mohalla Ganesh Kunj, Pandriba Lane, Patna.

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... ... Appellant

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Versus

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The State of Bihar through the Commissioner-cum- Secretary, Higher Education Department, Bihar, Patna.

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The Vice- Chancellor, Magadh University, Bodh Gaya.

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The Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi.

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The Secretary, Govering Body, L.P. Sahi College, Patna, Ram Krishna Nagar, P.S. Ram Krishna Nagar, District Patna- 800027.

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Patliputra University, through its Registrar, Patna.

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... ... Respondent

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====================================================== Appearance : For the Appellant : Mr. Sanjeev Kumar Singh, Advocate For the Respondents : Mr. Ashutosh Ranjan Pandey, Advocate For Magadh University : Mr. Sunit Kumar, Advocate For PPU : Mr. Rana Vikram Singh, Advocate For Respondent No. 4 : Ms. Vagisha Pragya Vacaknavi, Advocate For the State : Mr. Shashi Shekhar Tiwary, AC to AAG-13 ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA

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ORAL ORDER

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(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

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21 23-012024

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The present appeal has been filed under Clause 10 of Letters Patent Appellate Jurisdiction of Patna High Court Rules, 1916 and is directed against order dated 19-9-2018 passed by learned Single Judge in Civil Writ Jurisdiction Case No. 4044 of 2010, whereby the learned Single Judge has dismissed the petition filed by the present appellant / original petitioner.

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Patna High Court L.P.A No.1547 of 2018(21) dt.23-01-2024 2/14

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Heard Mr. Sanjeev Kumar Singh, learned Advocate for the appellant, Mr. Ashutosh Ranjan Pandey, learned Advocate for the Respondent, Mr. Sunit Kumar, learned Advocate for the Magadh University, Mr. Rana Vikram Singh, learned Advocate for the PPU, Ms. Vagisha Pragya Vacaknavi, learned Advocate for the Respondent No. 4 and Mr. Shashi Shekhar Tiwary, learned AC to AAG-13 for the State.

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Learned Advocate for the appellant / original petitioner submits that Laliteshwar Prasad Shahi College, Patna (hereinafter referred as L.P. Shahi College) was established in the year 1980 and has been affiliated to Magadh University, Bodh Gaya. Thereafter on the basis of the performance, the said college has also been registered under the provisions of UGC Act making it entitled to financial assistance from UGC. After the affiliation was granted, posts were created and were duly sanctioned by the Government. The number of vacant and sanctioned posts were determined and sent to Bihar College Service Commission, Patna for sending recommendation after completion of due process of selection. Accordingly, steps were taken by the said Commission by issuing advertisement and inviting applications for the post for the purpose of selection. Advertisement was issued for appointment of lecturer in different subjects against vacant and

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sanctioned post in L.P. Shahi College, Patna. It is submitted that petitioner was possessing requisite qualification and therefore, he applied for the post of lecturer in Zoology subject. After the due process of selection, his name was duly recommended by the said Commission on 09-01-1997 thereafter, appellant was appointed on the post of lecturer on 25-06-1997. Prior to that, the appellant was appointed on a regular basis on the post of lecturer on 02-091988. Thus, in continuation of his service in the college since 1988 the petitioner joined the post on 25-06-1997 and his appointment was approved by the Magadh University.

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Learned Advocate thereafter submitted that statutes relating to mode of appointment, pay scale and qualification for the post of teachers of affiliated degree colleges in the faculties of Arts, Science and Commerce was approved by the Hon’ble Chancellor on 24-04-1978. Under the statute, lecturer was approved the pay scale of Rs. 700-1600.

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At this stage, it is submitted that in the year 1982, the State Government took a policy decision with respect to affiliated colleges. As per the said policy, the State Government will not bear the financial expenses incurred on the new posts created in the colleges and the colleges shall bear their expenses. At this stage, it is also pointed out that on 21-11-2008, the State

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Government vide Resolution No. 1846 took a decision to abolish Vitta Rahit Shiksha Niti and to provide grants to the institutions including affiliated degree colleges. The said financial assistance is being provided to the institutions on the basis of the performance of the college and the grant is to be distributed to the persons validly appointed on sanctioned post.

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Learned Advocate, therefore, submitted that once the policy of 1982 with regard to Vitta Rahit Shiksha Niti is abolished and once the Government takes upon the responsibility to give the financial assistance to the institution, it was the duty of the Respondent/ State to give the remuneration to the petitioner in terms of the sanctioned pay scale admissible to lecturer of the constituent colleges/ affiliated colleges. However, when the said pay scale as per the statute of 1976 was not granted, the petitioner preferred the caption petition. However, the learned Single Judge vide an impugned order dismissed the petition and therefore, the petitioner has preferred the present appeal.

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Learned Advocate for the appellant/ petitioner has assailed the impugned order by contending that learned Single Judge has committed an error in holding that there is no recall of Vitta Rahit Shiksha Niti in the year 2008. It is submitted that learned Single Judge ought to have considered the fact that by a

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policy of 2008, the State Government has decided to give the grant-in-aid to the affiliated colleges and therefore, as per the said policy, the petitoner is entitled to get the pay scale as per statute. It is further submitted that clarification made by the Secretary of the concerned Department vide communication dated 04-09-2010 in the policy of 2008 is also not permissible. Learned Advocate, therefore, urged that the petitioner is entitled to get the pay scale prescribed under the statute and therefore, the impugned order passed by the learned Single Judge be set aside.

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On the other hand, learned Advocates appearing on behalf of the Respondent/State as well as University have opposed the present appeal by contending that when the petitioner was appointed in the year 1988 and thereafter in the year 1997, there was a policy of the State Government that no grant shall be given to the private affiliated colleges. The petitioner has worked as per the said policy from 1988 and therefore, at this stage, it is not open for the petitioner to take the contentions which are taken in the petition which was filed only in the year 2010. It is further submitted that thereafter on 21-11-2008, a new scheme was introduced based on the performance of the students of the college forming basis of grant-in-aid. Thus, it was decided to give grant-in-aid on the performance basis. It is further submitted that

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the Secretary has clarified certain aspects vide communication dated 04-09-2010, whereby it was decided that except the performance based grant no other grants will be given to the University or affiliated colleges. It is submitted that petitioner has not challenged the policy of 2008 or the clarification letter dated 04-09-2010. It is further submitted that on the one hand the petitioner is claiming benefit under the policy of 2008 and on the other hand it is the case of the petitioner that he is entitled to get the benefit beyond the policy of 2008. It is clarified that there is no recall of Vitta Rahit Shiksha Niti and only the grant of performance based aid was decided to be given to the affiliated institutions by way of policy of 2008 and therefore, the petitioner is not entitled to claim the reliefs as prayed for. Learned Advocate for the Respondents therefore urged that the learned Single Judge has not committed any error while dismissing the petition filed by the appellant/ petitioner.

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We have considered the submissions canvassed by the learned Advocates appearing for the parties. We have also gone through the materials placed on record. It transpires from the record that as per the case of the appellant/ petitioner L.P. Shahi College, Patna was established in the year 1980 and it was affiliated to the Magadh University. The petitioner was initially

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appointed as a lecturer in the Zoology Department in the year 1988 and thereafter through Commission he was appointed in June 1997 and his service as lecturer is approved by the concerned University. It is a case of the petitioner that the aforesaid college is affiliated and therefore, he is entitled to get the pay scale of the lecturer as prescribed in the statute of 1976 which was approved by the Hon’ble Chancellor in 1978. However, it is pertinent to note that the petitioner has not claimed such benefit which was given to the affiliated college till the petition was filed in the year 2010. It is also pertinent to note that in the year 1982, the State government has framed the policy of Vitta Rahit Shiksha Niti and under the said policy no grant was given to the University or affiliated colleges. The petitioner has not claimed any benefit because of the said policy and he has not raised any grievance with regard to same till the year 2010. It would further reveal from the record that thereafter in the year 2008 a new scheme was introduced based on performance of the students of the college forming basis of grant-in-aid and the said policy was framed on 21.11.2008. The relevant portion of the said policy reads as under:-

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foRr jfgr f”k{kk uhfr dh lekfIr dk vkSfpR;

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foRr jfgr laLFkk,Wa tks futh iz;kl ls [kksys x;s gS ,oa jkT; ljdkj ls foRrh; lgk;rk izkIRk ugha dj

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jgs gSa] mUgs foRr jfgr laLFkk dh Js.kh esa j[kk tk ldrk gSA pwWafd jkT; ljdkj us mUgsa fdlh izdkj dh lgk;rk ugha nsus dh uhfr cuk j[kh Fkh blfy, ;g uhfr “foRr jfgr uhfr”dgh tkrh jgh gSA fofHkUu Lrjksa dh f”k{k.k laLFkk,Wa foRr jfgr dh Js.kh esa gSA dfri; ewy ckrsa bu lHkh laLFkkvksa esa leku gSA ;g laLFkk,Wa fdlh u fdlh :i esa fo”ofo/kky;ksa ls lca)rk izkIr gSA buds vius vk; ds Jksr iz;kRr ugha gS] ftlls fd ;s leqfpr <ax ls lapkfyr gks ldsA orZeku esa fo”ofo/kky;ksa dks foRrh; lgk;rk jkT; ljdkj }kjk iznku ugha dh tkrh gSA bu laLFkkvksa ds laca/k esa dgk tk ldrk gS fd %&

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¼d½ ;g laLFkk,Wa [kksyh x;h] D;ksafd ljdkj us fd f”k{kk ds fofHkUu Lrjksa ij ubZ laLFkk,Wa [kksyuk izk;% can dj fn;k Fkk;

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¼[k½ bu laLFkkvksa ds ikl Hkwfe] Hkou vkfn gS rFkk budk ljdkjh Lrj ij mi;ksx djus esa ljdkj dks u;h laLFkkvksa dks “kq: djus ds fy, u;k fuos”k ugha djuk iM+sxk;

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¼x½ buds ikl f”k{kd ,oa f”k{kdsRrj deZpkjh( ¼?k½ bl izdkj ;s f”k{kk dh “ekWax” rFkk “iwfrZ” ds vUrj dks Hkjus dk dk;Z dj ldrs gSA

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vr,o jkT; ljdkj us fu.kZ; fy;k gS fd “kS{kf.kd okrkoj.k esa lq/kkj ,oa Nk=ksa dks xq.kkRed f”k{kk iznku djus ds mn~ns”; ls oSls vgZrk izkIr lac) fMxzh egkfo/kky;ksa dh tks f”k{k.k dk dk;Z larks’ktud <ax

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Patna High Court L.P.A No.1547 of 2018(21) dt.23-01-2024 9/14

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ls dj jgs gks] foRrh; lgk;rk miyC/k djkbZ tk,A lEc) egkfo)ky;ksa dks foRr;; lgk;rk@vuqnku fuEufyf[kr “krksZa ,oa izfdz;;kvksa ds varxZr nh tk,xh %&

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¼i) lec) fMxzh egkfo/kky;ksa dks vuqnku nsus gsrq vkosnu rFkk vkadM+s ldfyr fd;s tk;sxk A

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lehJsijkar vxj vko”;d le>k x;k rks foHkkxh; Lrj ij vFkok fdlh Lora= ,tsUlh ds ek/;e ls egkfo|ky; }kjk izsf’kr lwpukvksa ,oa vkadM+ks dh tkWap djkbZ tk,xhA foHkkx dh izfr f”k{k.k laLFkku fy;s tkus okys vuqnku ds fy, Nk=&Nk=kvksa dk U;wure ,oa vf/kdre la[;k fu/kh djus dk vf/kdkj gksxkA

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¼ii) efgyk f”k{kk dks izksRlkfgr djus ds mn~ns”; ls lec) efgyk egkfo|ky;ksa ds ekeyksa esa fu/kkZfjr vgZrkvksa dks f”kfFky djus dh “kfDr foHkkx dks gksxhA (iii) foRr jfgr f”k{kk uhfr dh lekfIRk ds i”pkr foRr jfgr fMxzh egkfo|ky;ksa dh LFkkiuk iwoZ dh Hkkafr ugha dh tk,xhA ladYi la[;k 1065 fnukad 9 fnlEcj 1982 dh dafMdk 3 dks vko”;drkuqlkj la”kksf/kr fd;k tk,xkA

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(iv) ……….vLi’VA

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(v) ……….vLi’VA

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(vi) ubZ O;oLFkk ds rgr futh izca/ku dk;e j[krs gq, vgZRrk izkIr f”k{kdksa ds Hkqxrkuksa dh ftEesokjh futh izca/ku dh gh jgsxhA

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(vii) ljdkj }kjk vgZRrk/kkjh lEc) fMxzh

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egkfo|ky;ksa dks foRr; lgk;rk@vuqnku yksd&futh Hkkxhnkjh ds fl)kar ij nh tk,xhA fMxzh egkfo|ky; ds fy, Lukrd Lrj ij foRr; lgk;rk ds Lo:i dk ewy fl)kar izfr lQy fo|kFkhZ Hkqxrku vk/kkfjr gksxkA (viii) izFke] f}rh; ,oa r`rh; Js.kh esa mRrh.kZ@Nk=kvksa ds fy, egkfo|ky; izca/ku dks fuEu

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:i ls vuqnku vuqekU; gksxk%&

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Js.kh izFke Js.kh f}rh; Js.kh rrh; Js.kh Nk= :0 8500@& :0 8000@& :0 7500@& Nk=k :0 8700@& :0 8200@& :0 7700@& vuqnku dh x.kuk Lukrd ¼ izFke] f}rh; ,oa rrh; [k.M½ esa mRrh.kZ gksus okys Nk=ksa dh okLrohd la[;k ds vk/kkj ij dh tk,xhA

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(ix) bu vuqnku dk mi;ksx egkfo|ky;ksa ds izca/k . lfefr }kjk f”k{kd@f”k{kdksRrj deZpkfj;ksa ds Hkqxrku ij fd;k tk,xkA vuqnku dh jkf”k dk O;; ,dkmaV isbZ psd ds ek/;e ls gh fd;k tk,xk A izfr lQy fo|kFkhZ vuqnku nsus dk eq[; mn~ns”; Hkh izca/k lfefr dks bl mns”; gsrq vkFkZd lgk;rk miyC/k djkuk gS fdlh Hkh ifjfLFkfr esa vuqnku dh jkf”k dk fopyu ugha fd;k tk,xkA

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(x) vuqnku ek= oSls ikB~;dzeksa ,oa vof/k ds fy, vuqekU; gksxk ftl ikB~;dez ,oa ftl vof/k ds fy, egkfo|ky; dks fof/kor laca/ku izkIr gksxkA

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(xi) mRd`V dksfV ds lEc) egkfo|ky;ksa dks tks xq.korkiw.kZ f”k{kk iznku djsxsa rFkk ftuesa Nk=ksa dh

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Ik;kZIr la[;k gksxh ,oa ftudk ijh{kkQy larks’ktud gksxk oSls egkfo|ky;ksa ds vk/kkjHkwr lajkpukvksa ds fodkl ds fy, Hkfo’; esa jkf”k dh miyC/krk gksus ij izfr lQy fo|kFkhZ vk/kkfjr vuqnku ds vfrfjDr vU; izdkj dh lgk;rk nsus ij fopkj fd;k tk,xkA

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Thereafter, letter has been issued by the Secretary on 04.09.2010 which was issued in continuation of the letter dated 27.07.2006, copy of which has been placed on Annexure-16 of the compilation with the petition. The said letter has been stated as under :-

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“vr% 27 tqykbZ 2006 esa foHkkx }kjk dk;Zdkjh vkns”k dks rRdkyhu izHkko ls okil fy;k tkrk gSA rFkk lEc) egkfo|ky;ksa fy, in ltu esa fcgkj jkT; vf/kfu;e 1976 dh /kkjk&35 vkSj 59 esa vafdr izko/kku ds vuqlkj dkjZokbZ djrs gq, izLrko vuqeksnu gsrq jkT; ljdkj dks Hksts tk,A vkSj ltu ds QyLo:i mu lec) egkfo|ky; dks r; QkZewys ds rgr feyusokys vuqnku ds vykok vkSj dksbZ vuqnku

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ugh fn;k tk,xkA”

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At this stage, we would like to refer to the provisions

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contained in Section 35 of the Bihar State University Act which provides as under:-

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"35. No post for appointment shall be created without the prior sanction of the State Government:- Notwithstanding anything contained

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in this Act, no 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 Government; or

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

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

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

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

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(iii) Shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment or any other benefit having financial implication to any person holding a teaching or non- teaching post;

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(iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government.

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(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 post without the prior approval of the State Government.

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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

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months, by a candidate possessing the prescribed qualification.

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(3) Any appointment or promotion made contrary to the provisions of this Act, or Statutes, Rules or Regulations made thereunder 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."

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At this stage, it is pertinent to note that the

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petitioner was appointed in the year 1988, when the policy of Vitta Rahit Shiksha Niti was in force. Even by a policy of 2008, policy of 1988 has not been given go by. However, in the year 2008, it has been introduced that grant of performance based aid is to be given to the institution affiliated. From the record, it appears that the petitioner claims that now the grant-in-aid is given to the affiliated institution, he is entitled to get the pay scale as per the statue. However, we are of the view that the said submission is misconceived. It is relevant to note that by way of 2008 policy only performance based grant is to be given to the institution and not the complete grant-in-aid is to be provided to the affiliated institution. The letter dated 04.09.2010, which is not under challenge, clarifies that except the performance based grant

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no other grants would be given to the institutions. Thus, now there is new formula for grant based on performance is introduced and no other financial aid is to be granted to the affiliated institutions.

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Thus, in view of the aforesaid facts of the case we are the view that petitioner is not entitled to get the relief as prayed for in the petition. We have also gone through the reasoning recorded by the learned Single Judge while dismissing the petition. We are of the view that the learned Single Judge has not committed any error and therefore, there is also no interference required in the present appeal.

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Accordingly, this Appeal stands dismissed.

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(Vipul M. Pancholi, J)

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( Rudra Prakash Mishra, J)

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GKS/-

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U T

Dr. Shailesh Kumar Sinha v. The State of Bihar

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Dr. Shailesh Kumar Sinha v. The State of Bihar

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