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Ram Bilash Sah Vs. the State of Bihar and Others - Court Judgment

LegalCrystal Citation
CourtPatna High Court
Decided On
Case NumberCivil Writ Jurisdiction Case No. 13800 of 2013
Judge
AppellantRam Bilash Sah
RespondentThe State of Bihar and Others
Excerpt:
1. heard learned counsel for the petitioner and the learned counsel for the state as well learned counsel for the b.n. mandal university. 2. the prayer of the petitioner in this writ application reads as follows: "1.(i) for quashing the memo no. 458 dated 28.05.2012 (annexure-6) passed by respondent no. 2 in as much as respondent no. 2 failed to adjudicate and decide the grievance of the petitioner in terms of the order dated 15.02.2012 passed in c.w.j.c. no. 20078 of 2010 (annexure-4) after considering annexure-5 and impugned order makes the petitioner suffer for the fault of the college authorities who failed to produce records despite repeated directions by respondent no. 2 and on account of such failure the petitioner has been made to suffer. (ii) for directing the respondents.....
Judgment:

1. Heard learned counsel for the petitioner and the learned counsel for the State as well learned counsel for the B.N. Mandal University.

2. The prayer of the petitioner in this writ application reads as follows:

"1.(i) For quashing the Memo No. 458 dated 28.05.2012 (Annexure-6) passed by respondent no. 2 in as much as respondent no. 2 failed to adjudicate and decide the grievance of the petitioner in terms of the order dated 15.02.2012 passed in C.W.J.C. No. 20078 of 2010 (Annexure-4) after considering Annexure-5 and impugned order makes the petitioner suffer for the fault of the college authorities who failed to produce records despite repeated directions by respondent no. 2 and on account of such failure the petitioner has been made to suffer.

(ii) For directing the respondents authorities of the concerned college to produce the alleged termination order of the petitioner dated 07.01.1992, if any, and quash the same or the same be declared to be void and of no effect and also produce the materials which show that the said order was served on petitioner.

(iii) Direct the authorities concerned to include the name of the petitioner in the list of employees working in the College concerned which has been sent to the University."

3. The facts giving rise to the present writ petition lie in a narrow compass. The petitioner claims to have been appointed as a Laboratory Technician in the Degree College, Supaul on 01.09.1979 while it was affiliated to L. N. Mithila University, which now falls within the jurisdiction of B. N. Mandal University (hereinafter referred to as 'the University'). It is the case of the petitioner that in pursuance of his appointment order of the Ad -hoc Committee of the college, he had joined on the aforesaid post of Laboratory Technician on 10.09.1979 and his services were also recommended for confirmation against the sanctioned Class-III and IV post. According to the petitioner, his services were also confirmed by the Ad-hoc Committee of the college on 03.04.1988 and his continuation in the college, against the post of Laboratory Technician, is also supported by the letter of the Principal of the College dated 25.10.1989 and also by the another list prepared by the Deputy Development of Commissioner, Supaul in the year 1997.

4. According to the petitioner, there was no dispute with regard to his continuation and working in the college as Laboratory Technician but only when the grant-in-aid was given by the Government to all the affiliated colleges for payment of salary to the teaching and non-teaching employees working against sanctioned post, the authorities of the Governing Body/Ad-hoc Committee of the college had started adopting arbitrary practices by selecting their favourites to be the employees of the college as also benefiting them by way of payment of salary from the grant received from the State Government.

5. It is the case of the petitioner that when the list was sent by the Governing Body of the college for payment of salary, his name was not included and was illegally left out and in his place the name of respondent no. 11 was inserted and allegation has also been made that the respondent no. 11 was a close relative and a caste man of the Principal of the college, namely, Dr. Ram Prasad Yadav who, in fact, was instrumental in removing the name of the petitioner and replacing him by his aforesaid close relative Shyam Kishore Yadav, the respondent no. 11.

6. The petitioner, in this regard, has also claimed that when he came to know of fabrication in the records and his being sought to be replaced illegally by the respondent no. 11 at the behest of the Principal of the college, he had filed a representation to the Vice Chancellor of the University which was followed by his two more representations addressed to the learned Chancellor and the Cabinet Minister for Human Resources Development Department dated 05.12.2009 and 02.02.2010 respectively. The petitioner, in this regard, has also referred to and relied on a inquiry report dated 23.01.2010 of the Regional Deputy Director of Education, Koshi Division, Saharsa who had conducted such inquiry on the orders of the Secretary of the Human Resources Development Department containing his letter dated 11.01.2010.

7. According to the petitioner, the Regional Deputy Director of Education, Saharsa on 29.01.2010, in his communication to the Secretary to the Human Resources Development Department, had found the issue as with regard to replacement of the petitioner by respondent no. 11 to be complicated and as such he had made a request that the dispute relating to the petitioner should be resolved at the level of the Secretary to the Department himself. When the petitioner did not get any relief from any corner, he filed a writ petition, C.W.J.C. No. 20078 of 2010 which was disposed of along with analogous cases by a common order dated 15.02.2012 giving liberty to the petitioner and other writ petitioners to represent their cases before the Director, Higher Education and a direction was also issued to the Director, Higher Education to decide as to who amongst the teaching and non-teaching employees of the affiliated college would be entitled for payment of their salary from the funds being given by the Government by way of grant-in- aid to this affiliated college.

8. The petitioner claims that in terms of the aforementioned order of this Court dated 15.02.2012, he had also filed a representation to the Director, Higher Education on 19.03.2012 claiming payment of salary of the post of Laboratory Technician of the college in question, but the Director, Higher Education, by his order dated 28.05.2012, had rejected the claim for payment of salary of the petitioner on the ground that the petitioner had already been dismissed from service with effect from 07.01.1992. It is this order dated 28.05.2012, which has been assailed in this writ petition with a consequential prayer that the authorities of the affiliated college be also directed to produce so call letter of dismissal of the petitioner dated 07.01.1992 and upon its production quash the same.

9. Learned counsel for the petitioner has submitted that though it may be true that the petitioner is an employee of an affiliated college but then when the Government has recorded the version of the authorities of the affiliated college as with regard to so called dismissal of service of the petitioner in view of the order dated 07.01.1992, it was imperative on the part of the Director, Higher Education also to examine the existence as also correctness of the dismissal order dated 07.01.1992. He has accordingly submitted that the impugned order passed by the Director, Higher Education should be quashed and the matter should be remitted back to the Director, Higher Education once again for deciding the claim of the petitioner both with regard to his continuance in the college as also payment of salary from the funds being made available by the State Government.

10. Learned counsel for the State, on the other hand, has submitted that this writ petition itself is not maintainable because at the end of the day, the petitioner is an employee of a private institution which would only an affiliated college to the University and the employer of the petitioner is only the Governing Body/Ad -hoc Committee of the affiliated college in question, whose decision either in respect of dismissal of service of the petitioner on 07.01.1992 or the denial for payment of salary to the petitioner from the funds being released by the State Government cannot be gone into in a writ jurisdiction as the Governing Body of the college is not a 'State' within the meaning of Article 12 of the Constitution of India. 11. Reliance in this regard has been placed by him on a judgment of the Division Bench of this Court in the case of Santosh Kumar vs. the State of Bihar and Ors. reported in {2013(1) PLJR 269}.

12. Learned counsel for the University, on the other hand, has not only adopted the submission of the learned counsel for the State but has also gone step ahead to add that the service conditions of the petitioner, whether by way of payment of salary or his appointment and/or removal, cannot be examined by the University in view of very limited power given to the University in terms of Section 59 of the Bihar State Universities Act.

13. In my opinion, a writ petiton of the present nature would not lie as has been held by the Division Bench in the case of Santosh Kumar (supra) wherein it was held as follows: "

15. In view of discussions made above and after noticing the various authorities cited by both the parties, we are of the considered view that earlier view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh @ Radha Kumari vs. The Governing Body of Mahanth Mahadevanand Mahila Mahavidyalay and Ors.;{1977 PLJR 110} and Chandra Nath Thakur vs. Bihar Sanskrit Shiksha Board and Anr.;{1999(1)PLJR 529} as well as a Full Bench judgement in the case of Smt. Manju Devi vs. The District Superintendent of Education, Bhagalpur and Ors;{1987 PLJR 962} does not require any reconsideration. We would, however, like to point out that earlier judgements indicated above, particularly in the case of Smt. Radha Kumari Singh (supra), it was clearly indicated that writ petition against a non statutory body such as Governing Body of a private college was not maintainable as there was no allegation of infraction of any statutory provision. In a given case where in exercise of statutory powers the University granting affiliation to a private college imposes reasonable conditions governing teachers or employees of an affiliated college, then in case of violation of Statues or Rules of the University by an affiliated college a person having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition is not maintainable against a private aided college even if it is a minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public nature otherwise the affected employee will be denied relief in writ jurisdiction. The law laid down by the Apex Court in the case Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smark Trust and Others vs. V.R. Rudani and Ors.; {AIR 1989 SC 1607} is based upon distinction between private rights and duties on the one side and rights and duties of public nature on the other side. It has been established by a long line of precedents that writ jurisdiction provides remedy in matters relating to public domain and for enforcement of rights flowing from Constitution or Statutes. In our view the term- œwrit petition is not maintainable? is not fully apt rather proper expression should be- œwrit shall not lie? when a writ petition is filed for seeking enforcement of duties other than public duties against a person or authority which is not œState? within Article 12 of Constitution.

16. x x x x

17. x x x x

18. In the facts of the case, we are of the considered view that no writ can be issued to grant any relief to the writ petitioner who is seeking a personal right of restoration of contract of service against Managing Committee of a private minority college. The writ petition is, therefore, dismissed on the ground that no writ would lie against private respondents in absence of any right in the petitioner with corresponding duty of a public nature upon the respondents.--------"

14. The reliance placed by the learned counsel for the petitioner as with regard to maintainability of a writ petition against an order passed by the Managing Committee, which is not a 'State' within the meaning of Article 12 of the Constitution of India, in terms of the judgment of the Apex Court in the case of K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. reported in AIR 1998 SC 295, is wholly misplaced and infact also altogether inapplicable in the facts and circumstances of the present case. In that case the petitioners, holding the post of Laboratory Assistant in a private college, were claiming parity of pay scale with the Government employees by invoking the principle of 'equal pay for equal work' on the basis of executive instructions issued by the Government that the pay scale of the employees in private colleges will be same as extended from time to time to the Government employees.

15. Having regard to the Government decision for payment of salary to the employees of private colleges at par with the Government employees, the Apex Court in the case of Sri Venkatashwara (supra) had gone to hold that the teachers duly appointed to a post in a private institution were also entitled to seek enforcement of the orders issued by the Government. The Apex Court, however, had immediately also clarified that if the remedy is a private law remedy, the writ petition will not be maintainable as would be apparent from the following extract of the order:

"4. It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on par with the Government employees. The question is: when there is no statutory rules issued in that behalf, and the Institution, at the relevant time, being not in receipt of any grant-in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an Institution to impart education, which is a fundamental right of the citizens, the teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees on par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on part with Government employees under Articled 29(d) of the Constitution."

(underlining for emphasis)

16. As would be evident in the aforesaid case of K. Krishnamacharyulu (supra), there was no relief being sought against the management of the private college and thus, it was held that for enforcement of the Government decision, the writ petition, at the instance of an employee of a private college, was also maintainable.

17. Here in this case, the petitioner straight way questions the decision of the Governing Body/Ad-hoc Committee of the private college terminating his services which is definitely in the realm of private law as explained by the Division Bench in the case of Santosh Kumar (supra) and, therefore, there would be no difficulty in holding that a writ petition against the order passed by the Governing Body/Ad-hoc Committee of a private college terminating the services of its employees, will not be maintainable.

18. Yet another decision referred to and relied on the judgment of the learned single Judge of this Court in the case of Arjun Ram vs. Bihar State Co-operative Marketing Union (BISCOMAUN) and Ors. reported in 2012(1) PLJR 262 will have no application in the facts and circumstances of the present case. The status of the BISCOMAUN, a Co-operative Society, while it is under supersession and is being controlled by the officials of the State Government, has been gone into recently by a special Bench of this Court in the case of The Organizer, Dehri C.D. and C.M. Union Limited Vs. The State of Bihar and Ors. wherein it has been held that a writ petition will be only maintainable if the order has been passed by a Governmental authority while exercising the power of the Board of Director or the Managing Director of the BISCOMAUN while it is under supersession. This Court, in fact, fails to appreciate as to how any parallel can be drawn between a Co-operative Society and a wholly private affiliated college.

19. As a matter of fact, if the petitioner had any grievance with regard to dismissal from service, in view of the order dated 07.01.1992, he, being an employee of an affiliated college, ought to have taken recourse to the Statute framed by the learned Chancellor on 18.08.1972 wherein any order of dismissal of an employee in an affiliated college would be amenable to appeal as per Article 7 of the Statutes which for the sake of convenience and clarity is quoted herein below:

DISCIPLINARY ACTIONS

7.(1) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed by the Principal of the College in case of class IV employees and by the Governing Body in case of class III employees upon a non-teaching employee of the college service namely:-

(i) Censure;

(ii)Withholding of increments or promotion, including stoppage at an efficiency bar;

(iii) Recovery from pay of the whole or part of any pecuniary loss caused to the college by negligence or breach of orders;

(iv) Suspension;

(v) Reduction to a lower post or to a lower stage in a time-scale;

(vi) Removal from the college service which does not disqualify from future employment, and (vii)Dismissal from the college service which ordinarily disqualifies from future employment.

Provided that the employees concerned shall have the right of appeal to the Vice-Chancellor, whose orders thereat shall be final.

Explanation 1-The Discharge

(a) of a person appointed on probation during or at the end of the period of probation on the grounds arising out of the specific condition laid down by the appointing authority, e.g., want of vacancy, failure to acquire prescribed special qualifications or to pass prescribed text;

(b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the term of appointment; and

(c) of a person engaged under contract, in accordance with the terms of his contract; does not amount to removal or dismissal within the meaning of this article.

Explanation-II The discharge of a probationer, whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service, amounts to removal or dismissal within the meaning of this article.

(Dismissal, removal or reduction in rank)

(2) (a) No order of dismissal, removal or reduction shall be passed on a college employee unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required to put in a written statement of his defence within a fortnight and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the person or persons conducting the enquiry may, for special and sufficient reasons to be recorded in writing refuse to call a witness. The examination and the cross examination of prosecution and defence witnesses should be completed within a month.

(b) After the enquiry against the person charged has been completed and after the authority competent to impose a penalty has arrived at a provisional conclusion in regard to the penalty to be imposed, the accused college-employee shall be supplied with a copy of the report of the enquiring authority and be called upon to show cause within two weeks against the particular penalty proposed to be inflicted.

Note-1:- In cases in which the officer, who will pass orders himself, conducts the enquiry, he should, after completion of the evidence, clearly indicate his findings in writing on each charge and call upon the accused to show cause within two weeks against any proposed punishment.

Note-2:- When the orders for punishment are passed by an authority other than the person or persons conducting the enquiry into the conduct of the college-employee concerned, it should be sufficient if the authority passing orders of punishment definitely records his agreement or disagreement with the person or persons by whom the enquiry was conducted.

(c) without the sanction of the Vice-Chancellor no pleader or agent should be allowed to appear either on behalf of the college or the person charged, either before the person or persons conducting the enquiry or before the Vice-Chancellor to whom the appeal may be made. If the person or persons conducting the enquiry or the appellate authority is of opinion that a pleader of agent should be allowed to appear he should so order in writing assigning reasons.

(d)The proceedings shall be drawn up and conducted in the following manner:-

(i) Name, rank and grade of the college employee proceeded against should be clearly stated.

(ii) Details of charges:- Each charge must be specific. Charges should be drawn up and separately numbered and should give the date, occasion and nature of the offence committed. A copy of the charges should be given to the college employee charged.

(iii) Defence:- If the charged college employee can write, he should be permitted to submit his defence in writing. The defence submitted in writing should be attached to the proceedings. In cases of illiterate men the enquiring officer may himself record the defence. The written statement of defence should be submitted within a fortnight from the date of communication of the charges to the college employee accused,

(iv) Evidence :- A memorandum of evidence should be prepared. Where the full statement of witnesses has been recorded in English or Hindi, it should be attached to the proceedings.

(v) Character of the college employee charged-The character roll of the college employee should be examined and a note made regarding the good and bad work done by the college employee in the past.

(vi) Findings: Each charge should be examined in the light of the defence and the evidence; and a clear finding on each charge should be recorded by the enquiring officer.

(vii) Order; - That Principal or the Governing Body of the college who is competent to pass orders of dismissal, removal or reduction should consider the findings along with the past record of the person concerned and if he is of the opinion that any of these penalties should be imposed then he should supply a copy of the findings to the person concerned and ask him to submit a representation, if any, against the proposed punishment within two weeks. On receipt of the representation an order shall be recorded. If the penalty imposed is other than dismissal or removal, the order should clearly indicate how the period of suspension, if any, should be treated, e.g. whether any extra pay other than subsistence allowance is to be allowed. Note :-Final order in a case in which a college employee has been prosecuted should issue as soon as the proceedings have concluded without waiting for the result of an appeal, if any.

(e) An order-sheet should invariably be used from the beginning and the record of the proceedings should be prepared as the case is gone into from day to day and not after the case has been decided. The order-sheet shall form part of the proceedings.

(f) When any order of punishment has been passed, the college employee punished shall be entitled to receive a copy of the order of punishment free of cost, and shall also be allowed to take a copy of the rest of the record, on paying for the copy at the usual copy rate or on providing his own paper and copyist.

(g)In order that copies of the whole of the proceedings may without objection be supplied to college employee punished, the authority conducting such a proceeding must base his findings and order on facts and inferences appearing in or deduced from the record and should not refer to confidential papers which can not be embodied in the record.

(h)The provisions of clause (a) and (b) shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.

(i) The full procedure indicated above need not be followed in the case of a probationer discharge in the circumstances described in explanation II to Article 7(1). In such cases it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply against the discharge duly considered before orders passed.

(j) If from the facts elicited in a criminal case brought against a college employee, in which he has not been convicted or in a civil suit instituted against him, it is apparent that his retention in the college service is prima facie no longer desirable, such facts may be used as the basis of an order calling on him to show cause why he should not be punished by dismissal or otherwise. In such a case the college employee concerned should have an opportunity of submitting his defence and tendering such further evidence as he may deem fit to produce.

(3) No order imposing the following penalties, viz:-

(i) censure;

(ii)withholding of increments of promotions including stoppage at an efficiency bar.

(iii)recovery from pay of the whole or part of any pecuniary loss caused to the college by negligence or breach of orders (other than an order based on facts which have led to his conviction in a criminal court, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post); on a college employee, shall be passed unless he has been given an adequate opportunity of making a representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed.

Provided that the requirements of this para may, for sufficient reasons to be recorded in writing, be waived when there is difficulty in observing them and where they can be waived without injustice to the college employee concerned.

Suspension :-

(4)(a) A college employee should not be placed under suspension for inadequate reasons or kept in suspension for a long period,

(b) The following principles should be observed in ordering suspension of a college employee:-

(i) If a college employee is being prosecuted on a criminal charge, he should be placed under suspension if he has been refused bail by the Court and has been committed to prison.

(ii) In cases of criminal prosecution, a college employee should be suspended if the charge against him is such that on being found guilty of it, he is likely to be sentenced to a term of imprisonment or on which he would be dismissed or removed from service, in a departmental enquiry. In such cases, however, the order of suspension need not be passed in every case immediately after cognizance has been taken. In suitable cases it may be passed after charges have been framed.

(iii) Where a college employee is being proceeded against departmentally on charges of gross misconduct or bribery of corruption, the question of suspension should be considered with reference to the prima facie evidence available against him. If there are good reasons to believe on the basis of the material available at the time of the initiation of the proceedings, that the college employee has been guilty of gross misconduct or of bribery or corruption, which, if proved would lead to his dismissal or removal, he should be placed under suspension. In cases in which such prima facie evidence is lacking at the start, the question of suspension of the college employee may be kept pending till the findings of the enquiring officer are available. In such cases he should be required to proceed on such leave as may be due to him, and if there is no leave to his credit, on extraordinary leave. On the conclusion of the enquiry if it is found that the college employee is guilty of gross misconduct, or of bribery, or corruption, which would entail his dismissal or removal from service, he should be immediately placed under suspension.

(iv) In all cases where there are reasons to believe that the college employee, if allowed to continue in active service, might attempt to tamper with the evidence, he should be required to proceed on such leave as may be due to him, or if there be no leave to his credit, on extra “ordinary leave. If he refuses to proceed on leave, he may be suspended.

Discharge of temporary College employee

(5) The following procedure shall be followed in discharging a temporary college employee:-

(a) When the term of appointment of a temporary college employee provides for the termination of service by either party giving notice of a specified period either party can serve such notice at any time and the service should be considered to have been terminated on expiry of the specified period of notice. The termination of service in which circumstances does not amount to œremoval? from service under Article 311 of the Constitution of India.

(b) When a temporary appointment expressly stated to be on a temporary basis is sanctioned to continue until further orders and is subject to the condition that the service may be terminated at any time without notice, the termination of service does not amount to œremoval? from service under Art. 311 of the Constitution of India and the service can be terminated at any time without notice.

(c) In the case of persons who are appointed subject to discharge on notice of one month or less, it will be necessary to call for an explanation from the person concerned asking him to show cause why he should not be discharged and the explanation so obtained will be considered before orders of discharge are passed.

APPEAL

(6) (a) Every college employee including those on probation shall be entitled to appeal in the manner hereinafter provided from an order passed by any college authority:-

(i) Imposing upon him any of the penalties specified in article

7(1). (ii) Terminating his appointment otherwise than on the expiry of the period of his appointment or on his reaching the age of superannuation provided that no appeal as of right shall lie against an order declining to give an appointment or promotion except as a measure of punishment to a particular individual or affecting a transfer or an extension of service.

(b)An appeal from any order passed by the Principal or the Governing Body of the college under articles 6(1) or 7(1) of these statutes shall lie to the Vice-Chancellor; within 15 days of the receipt of the said order. The decision of the Vice-Chancellor shall be binding, on the employee and the college both.

(c) In the case of an appeal against an order imposing any penalty specified in articles 6(1) and/or 7(1) of these Statutes, the Vice-Chancellor shall pass order after considering;

(i) Whether the facts on which the order was based have been established,

(ii) Whether the facts established afford sufficient ground for taking action, and

(iii) Whether the penalty is excessive, adequate or inadequate and after such consideration shall pass such order as he thinks proper.

(d) The Principal or the college Governing Body from whose order an appeal is preferred under these clauses shall give effect to any order made by the Vice-Chancellor and the order of the Vice-Chancellor shall form a part of the record.

(e) Every employee preferring an appeal shall do so separately and in his own name.

(f) Every appeal preferred under these statutes shall contain all material statements and arguments relied on by the appellant, shall contain no disrespectful or improper language and shall be complete in itself."

20. In fact, there is another Article 22 in the same Statutes which provides for arbitration in the following terms:-

"A dispute arising out of any service contract or otherwise between the college and an employee of the college if not otherwise settled shall, on the request of any party to the dispute, be referred to a tribunal of arbitration, consisting of one member nominated by the employee concerned and one umpire appointed by the Vice-Chancellor. Every such request shall be deemed to be a submission to arbitration under the terms of this statute within the meaning of Indian Arbitration Act and all the provisions of the Act with the exception of section 2 thereof shall apply accordingly. The decision of the Tribunal shall be final and no suit shall lie in any civil court in respect of the matters decided by the Tribunal."

21. There is also no dispute that these Statutes though framed under the provisions of Bihar State Universities Act, 1960 are still in force because under the new Act, namely, Bihar State Universities Act, 1976, which has repealed the Bihar State Universities Act, 1960, no fresh Statutes for governing the service conditions of the employees of the affiliated colleges has been framed as yet by the learned Chancellor. Thus, the Statutes, as referred above, dated 18.08.1972 would be deemed to be still in force in terms of Section 27 of the Bihar and Orissa General Clauses Act, 1917. Reliance in this connection may usefully be made to the Division Bench judgment of this Court in the case of Om Prakash Choubey vs. The Director (Secondary Education) -Cum- Additional Secretary, Government of Bihar and Ors. reported in 1985 PLJR Page 1110, relevant portion reads as follows:

"¦. It is well settled that a rule validly made, becomes a part of the parent Act, and survives the repeal of the Act under which it is framed, if it is not inconsistent with the provisions of the repealing Act and if such a rule can be framed under it. Section 27 of the Bihar and Orissa General Clauses Act provides: where any enactment is repealed and re-enacted by a Bihar Act with or without modification then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, by-law or form made or issued under the repealed enactment shall so far as it not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification order, scheme, rule, by-law or form made or issued under the provisions so re-enacted. 1972 Rules which were framed under section 8(1) of the 1960 Act to the extent they provided for the minimum qualification of the teachers, evidently survived the repeal by the Ordinance in the year 1974 and by the Act in the year 1976, because no rules and/or statutory provisions otherwise created, ever existed causing or creating repugnancy of any kind¦¦."

22. This Court, however, would fail in its duty if it does not take into consideration of additional submission made by Mr. Verma, learned counsel for the petitioner, as with regard to impugned order passed by the Director, Higher Education. Mr. Verma is of the view that the order of this Court remitting the matter back to the Director, Higher Education on an earlier occasion in the writ petition filed by the petitioner being C.W.J.C. No. 20078 of 2010 disposed of on 15.02.2012, should be read as a consent order which would direct the Director, Higher Education to decide the case of the petitioner merit. In this regard, he has referred to the judgment of the Apex Court in the case of Salkia Businessmen's Association and Ors. v. Howrah Municipal Corporation and Ors. reported in (2001) 6 SCC 688.

23. In the considered opinion of this Court, the ratio laid down in the case of Howrah Municipal Corporation (supra) will have no application to the facts of this case inasmuch as it was only the issue of payment of salary as raised by the petitioner in his earlier writ petition; C.W.J.C. No. 20078 of 2010 which was remitted back to be raised before the Director, Higher Education through a representation to be filed by the petitioner. The Director, Higher Education, thus, when had sought to examine the claim made by the petitioner through representation and was apprised that the service of the petitioner had already been terminated in the year 1992, he could not have gone into the correctness or otherwise of the validity of such order of termination of service of the petitioner made by the private management of an affiliated college.

24. As a matter of fact, neither this Court was even apprised by this position that the service of the petitioner had already been terminated way back in the year 1992 on account of his remaining absent from duty for a period of more than 10 to 12 years; nor this Court could have given any direction in this regard keeping in view the status of the petitioner of being an employee of a private college.

25. Law, in fact, even otherwise well settled and needs no reiteration that even consent cannot confer jurisdiction. This Court, in fact, in view of the provisions made under the Bihar State Universities Act, 1976 or the Statutes framed thereunder, neither could nor had conferred jurisdiction on a Director, Higher Education to go into the correctness of the order of termination of service of the petitioner by the private management of the affiliated college and, therefore, the Director, Higher Education has correctly retraced his steps while passing the impugned order the relevant portion whereof reads as follows

(LANGUAGE)

26. The next judgment relied by Mr. Verma of the Apex Court in the case of C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd. reported in (2007) 7 SCC 171 has laid down the scope of definition of workman on the date of dismissal, can also have no application to the facts of the present case.

27. Thus, for the reasons, indicated above, while this Court would hold that the writ petition, either for setting aside the order of termination of service of the petitioner dated 07.01.1992 passed by the Ad-hoc Committee of the private college or for a direction for payment of salary to the petitioner by the affiliated college, will not lie it would still clarify that nothing said in this writ petition will come in the way of the petitioner in seeking appropriate remedy in terms of the Statutes dated 18.08.1972.

28. With the aforementioned observation and direction, this writ petition is disposed of.


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