2004 Supreme(SC) 1285

2004(8) Supreme 732
SUPREME COURT OF INDIA
(From Patna High Court)
Y.K. Sabharwal & D.M. Dharmadhikari, JJ.
State of Bihar & Ors. -Appellants
versus
Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors. -Respondents
Civil Appeal No. 6098 of 1997
With
Special Leave Petition (C) No. 18168 of 2002
Contempt Petition (C) Nos. 5, 53, 54, 83, 353, 363, 549, 82 of 2002 and 343, 377, 441 of 2004 in CA No. 6098 of 1997
With
I.A. Nos. 102-103
I.A.Nos. 105-108, 110-113, 119, 143, 146, 150, 154, 157, 158, 159, 173, 178, 183, 188-189, 195-198, 201, 203-204, 212-215, 224, 234, 236-237, 244, 247, 250, 273, 276, 278-280, 286, 293, 295, 299, 303, 318, 320, 329, 332 [Applications for impleadment].
I.A.Nos. 114, 115, 120, 121-124, 145, 151, 160, 161, 164, 174, 177, 179, 185-187, 190-192, 199, 202, 208, 210, 211, 216, 217, 219, 221, 222-223, 225, 226-227, 229, 231, 233, 235, 238, 241-242, 243, 246, 249, 252-255, 260, 281, 288-289, 290-291, 294, 297-298, 302, 305-307, 311-317, 322-328, 343, 346, 347-349, 351, 354-355, 363, 364, 367-371, 375, 377 [Applications for permission to file objections]
I.A.Nos. 116-118, 207, 262, 282, 345, 365 [Applications for intervention]
I.A.Nos. 125-142, 144, 147, 149, 152, 155, 156, 162-163, 165, 167-168, 170-172, 175, 179-182, 184, 193, 205, 239, 256, 258, 264-272, 277, 284-285, 292, 201, 308-309, 333, 360-361, 373, 374 [Application for directions].
I.A.No. 353 [Application for change of name of Advocate-on-Record]
I.A.No. 304 [For substitution]
I.A.No. 275 [For modification]
I.A.No. 331 [For condonation of delay]
I.A.Nos. 357-358 [Applications for permission to file Addl. Documents and exemption]
I.A.Nos. 148, 153, 166, 169, 176, 194, 200, 206, 209, 218, 220, 228, 230, 232, 240, 245, 248, 251, 257, 259, 261, 263, 274, 283, 287, 289A, 296, 300 [Application for exemption].
All Decided on 12-10-2004
Counsel for the Parties :
For the Appellant for State of Bihar : Rakesh Dwivedi, Sr. Advocate, B.B. Singh, Akhilesh Kr. Pandey, Ashok Kr. Pandey, Advocates.
For the Appellant for State of Jharkhand : M.L. Verma, Sr. Advocate, Ashok Mathur and Rajesh Pathak, Advocates.
For the Petitioner in S.L.P. : Shambhu Prasad Singh and Ms. Manjula Gupta, Advocates.
For the Respondents/Applicants : Ranjit Kumar, Harish N. Salve, Raju Ramachandran, Gopal Subramanium, L.N. Rao, A. Sharan, A.K. Srivastava, Chandra Shekhar, P.S. Mishra, Sr. Advocates, Ajit Kumar Sinha, Vijay Kumar Sinha, Pankaj Bhagat, Ashok Kumar Singh, Saket Singh, Ms. Niranjana Singh, Shiv Pujan Singh, Abhay Prakash Sahay, Kuldip Singh, P.V. Dinesh, Sanjay K. Mishra, Abhishek Thakur, Ms. Nutan Mishra, Atul Jha, Nirmal Mittal, Naresh Kumar, Gopal Prasad, Arup Banerjee, D.P. Mukherjee, Braj K. Mishra, Ms. Aparna Jha, Ranjan Kumar Jha, Hiren Dasan, Manoj Swarup, Athar Alam, Ambar Qamaruddin, Mrs. M. Qamaruddin, Sumit Kumar, Ashwani Bhardwaj, S.P. Sharma, Abhishek Atrey, Shirshir Singh, Prem Prakash, Ms. Sharmila Upadhyaya, K.V. Viswanathan, Atul Kr. Sinha, B. Raghunath, Devender Singh, M.P. Jha, R.E. Roy, Harshvardhan Jha, Anil K. Chopra, Sunil Kumar Verma, Amresh Kumar Singh, A.P. Mayee, Yugal Kishore Prasad, B.S. Rajesh, Agrajit, Varinder Kr. Sharma, Pavan Kumar, P. Chandra, Ajay Amritraj, Sanjeev Kumar, N.N. Jha, Prabhat Kumar, Atishi Dipankar, Rajeev Singh, Ms. Sunita R. Singh, T. Anil Kumar, Rakesh K. Khanna, Ms. Abha R. Sharma, R.P. Singh, Swetank Shantanu, Rajeev Bansal, A.K. Ghai, Ambhoj Kumar Sinha, Neeraj Shekhar, Mohan Pandey, Vidya Bhushan Misra, R.D. Rathore, Dr. Kailash Chand, D.K. Thakur, Ms. Poonam, Kumari, Sanjay Jain, Ajay Choudhary, Rakesh Uttamchandra Upadhyay, Navin Prakash, D.K. Garg, Mahendramohan Kumar Singh, Sudama Ojha, A.K. Tiwari, Dr. Maya Rao, R.P. Wadhwani, Tathagat Harsh Vardhan, Mrs. Swarupa Reddy, Upendra Mishra, Amitabh Chandra Mishra, Dhruv Kr. Jha, C.D. Singh, S. Chandra Shekhar, Shree Prakash Sinha, Prabhash Kumar Yadav, Dr. K.S. Chauhan, N.S. Bisht, Sunil Kumar, Himanshu Shekhar, Shravan Singh, Sanjeev Malhotra, Mansoor Ali, Irshad Ahmad, Amit Kumar, K.S. Rana, Satish Chand Gupta, Dr. (Mrs.) Vipin Gupta, R. Nedumaran, Ranjan Dwivedi, D.K. Sinha, P. Gaur, S.K. Verma, T. Mahipal, Vikash Singh, Amrita Narayan, Prashant Chaudhary, Ms. V. Mohana, Anupam Lal Das, Manish Verma, Rajnish Ranjan, Mohan Pandey, R.P. Goyal, Sunil Kumar, Mrs. Kirti Sinha, Mrs. Sarla Chandra, Kanhaiya Priyadarshi, Krishnanand Pandeya, Mrs. S. Usha Reddy, Rana Ranjit Singh, P.S. Jha, Amitesh Kumar, L.R. Singh, K.N. Rai, Bharat Sangal, Manoj Swarup, K.K. Mohan, Arunabh Suman, Biswajit, Ashwani Kumar, Ranjeet Kumar, Harishankar, Pawan Kumar, Alok Vagreche, Manish Singhvi, Saurabh Ajay, P.V. Yogeswaran, Manish Kumar Saran, Santosh Kumar, Chandra Kanta Nayak, Rakesh K. Sharma, K.C. Bajaj, Himanshu Bajaj, Anil Kumar Jha, Vijayendra Misra, Binay Kr. Das, Samarendra Jha, Advocates.

Headnote:(i) Bihar State Universities Act, 1976-Sections 2(c), 2(i), 4 and 14-40 colleges affiliated to various universities were taken over as constituent colleges of respective universities-State of Bihar took a decision to convert affiliated colleges into constituent colleges in a phased manner under the Resolution of Government of Bihar taken in year 1986-Each University was directed to constitute a three member committee to ascertain existing sanctioned teaching and non teaching posts, proposals pending for additional posts, proposals pending for posts for additional subjects-Government of Bihar took a formal decision to provisionally absorb teachers against sanctioned posts and posts which were recommended for sanction by some of the Universities-Change of elected government-A large number of complaints of manipulations and fabrication of records in affiliated colleges received by the Government-Writ petitions filed by association of employees of affiliated colleges for restraining State and universities from dispensing with or terminating appointments of nearly four thousand employees working in different colleges under universities-High Court allowing writ petitions made directions-Appeal filed by State of Bihar-Appointment of an independent Enquiry Commission-Report of Commission accepted-Directions made accordingly.

       Held : The judgment of the High Court to the extent of the interpretation placed by it on the provisions of section 4(I)(14) and section 35 with the directions issued in paragraphs 24 to 26 therein, is hereby confirmed for the reasons recorded by us above. The report of the commission of enquiry of Hon. Justice S.C. Agrawal [retired], is accepted and all objections filed against the said report are rejected. The members of the staff in various affiliated colleges identified and named in list no. (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the universities concerned. The universities shall take a decision under section 4(I)(14) of the Act in the matter of absorption of appointees named in list no. (ii) of the Report of the Commission, being appointees against posts for which recommendations were sent by the universities to the State up to the cut-off date in accordance with the decision of the State Government conveyed in its letter dated 19.8.1986 followed by letters dated 25.08.1986 and 12.06.1987. In considering the question of absorption of appointees named in list no. (ii) of the report of the Enquiry Commission, the universities concerned shall rely on the contents of the report of the enquiry commission and the present judgment of this Court. The appointees mentioned in list no. (iii), being the appointees against posts for which recommendations were sent by the universities to the State Government after the cut-off date or those working against posts for which no recommendations were sent for approval of the State Government, have no right of being considered for absorption - whatever maybe the fortuitous circumstances or otherwise in the matter of not sending recommendations for sanction in their cases. The negative report of the enquiry commission with regard to list no. (iii) is accepted and the universities are directed to exclude all such appointees named in list no. (iii) from consideration for absorption. A large number of objections to the Report of the Enquiry Commission filed before us by associations of employees and individuals pertain to the alleged lack of prescribed qualifications for the posts on which they are working. All those objectors have not been recommended for absorption in the report of the Enquiry Commission. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for the teaching and non-teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained above. The universities concerned shall now complete the process of absorption of the staff of the affiliated colleges [teaching and non-teaching] in the manner and to the extent stated above in our judgment within a period of four months from the date of receipt/production of the copy of this order. (Paras 72 and 73)

       (ii) INTERPRETATION OF STATUTES-Non-obstante clause-Two non-obstante clauses with slightly different wordings to be harmoniously construed so as to fulfil the object of each of them-Bihar State Universities Act, 1976-Sections 35 and 4(I)(14).

       Held : A non-obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non-obstante clause. It is equivalent to saying that inspite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. (Para 43)

       When two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non-obstante clause. Two provisions in same Act each containing a non-obstante clause, requires a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each. (Para 44)

       If we examine the scheme of the Act and object of the two provisions, they seem to operate in two different fields and there is no conflict in them. Section 35 is expressly applicable to affiliated colleges and mandates that new posts giving rise to financial liabilities cannot be created and appointments against them cannot be made without prior approval of the State Government. (Para 46)

       The two non-obstante clauses with slightly different wordings have thus to be harmoniously construed so as to fulfil the object of each one of them. On examination of the scheme of the Act and the relevant provisions; we find that Section 35, requiring prior sanction of the State Government for creation of posts and appointments, applies to all affiliated colleges. Compared with Section 35 - Section 4(I)(14) has limited operation at a stage when university enters into an agreement with the management or governing bodies of private institutions affiliated or non-affiliated for taking over its management, assets, liabilities and staff. The effect of non-obstante clause in Section 4(I)(14) is that the matter of absorption of staff of such institution/college proposed to be taken over, would be within the sole power and jurisdiction of the university concerned within whose jurisdiction the affiliated college or institution falls. On matter of absorption of staff of taken over institutions, Section 35 requiring prior sanction or approval of the State Government for creation of posts and appointment, would not be a constraint on the power of the university. It is a different thing that the university in considering absorption of the staff of institution taken over may give due consideration to the legality/regularity or otherwise of a particular appointment but it would not be inhibited by the absence of prior sanction or approval of the State as contemplated in section 35 of the Act. This is how the two non-obstante clauses have to be harmoniously construed and applied as giving overriding effect to each and restrict their operation within exclusive field assigned to each. In the matter of creation of posts and appointments in affiliated colleges in normal circumstances, requirement of prior sanction or approval of the State Government, as contained in Section 35, is not dispensed with because of the contrary provision contained in section 4(I)(14) and the latter Section is restricted in its operation to absorption of staff of a taken over institution by the university. (Para 52)

       (iii) WORDS AND PHRASES-Phrase notwithstanding anything to the contrary contained in this Act -Meaning.

       Held : Normally the use of phrase by the Legislature in a statutory provision like notwithstanding anything to the contrary contained in this Act is equivalent to saying that the Act shall be no impediment to the measure [See Law Lexicon words notwithstanding anything in this Act to the contrary ]. Use of such expression is another way of saying that the provision in which the non-obstante clause occurs usually would prevail over other provisions in the Act. Thus, non-obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting provision to which the non-obstante clause is attached. (Para 45)