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1997 Supreme(Pat) 84
PATNA HIGH COURT
B.N. AGRAWAL & A.K. GANGULY, JJ.
Bihar Rajya Mahavidyalaya Shikahak Avam Shiksheketar Karamchari Kalyan Mahasangh through its President Dr. Rakesh Nath Choubey and others - Petitioners
Vs.
The State of Bihar & ors. - Respondents
C.W.J.C. No. 4021 of 1995
Decided on : 31.1.1997
For the petitioners: M/s Kapil Sibbal, Chandra Shekhar, Ajit Sinha, Anil Kumar Upadhaya & Amresh Kumar Singh.
For the States : Mr. Yugal Kishore.
For the Vigilance : Mr. B. P. Pandey.
For Respondent Nos. 1 & 2: M/s. SA Narain, Yugal Kishore, S.C. Jha & Anup Kumar Sinha.
The agreement entered into between the Governing body of the College and the respective University under Section 4(14) of the Act is final and binding and cannot be called in question by the State Government under Section 35 of the Act. The provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, do not apply to the petitioners as they were appointed prior to the coming into effect of the said provisions.
Headnote:
BIHAR STATE UNIVERSITIES ACT, 1976 - SECTION 4(14) - SECTION 35 - SECTION 57 - STATUTE FOR REGULARISATION OF THE SERVICES OF PURELY TEMPORARY LECTURERS APPOINTED ON OR BEFORE 28TH FEBRUARY, 1982 - The court held that the agreement entered into between the Governing body of the College and the respective University under Section 4(14) of the Act is final and binding and cannot be called in question by the State Government under Section 35 of the Act. The court also held that the provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, do not apply to the petitioners as they were appointed prior to the coming into effect of the said provisions.
Fact of the Case:
The petitioners, teachers of various colleges which had become constituent colleges of different universities, filed a writ petition apprehending that their services may be terminated on the basis of a vigilance enquiry report. The petitioners contended that the agreements entered into between the Governing body of the College and the respective University under Section 4(14) of the Bihar State Universities Act, 1976 (the Act) are final and binding and cannot be called in question by the State Government under Section 35 of the Act. They also contended that the provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, do not apply to them as they were appointed prior to the coming into effect of the said provisions.
Finding of the Court:
The court held that the agreement entered into between the Governing body of the College and the respective University under Section 4(14) of the Act is final and binding and cannot be called in question by the State Government under Section 35 of the Act. The court also held that the provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, do not apply to the petitioners as they were appointed prior to the coming into effect of the said provisions.
Issues: 1. Whether the agreement entered into between the Governing body of the College and the respective University under Section 4(14) of the Act is final and binding and cannot be called in question by the State Government under Section 35 of the Act? 2. Whether the provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, apply to the petitioners?
Ratio Decidendi: 1. The court held that the agreement entered into between the Governing body of the College and the respective University under Section 4(14) of the Act is final and binding and cannot be called in question by the State Government under Section 35 of the Act because: * Section 4(14) of the Act provides a complete code and a non-obstante clause empowers the University to take decision in matters of pay, allowances and appointment in an institution which has been taken over by the University. * The provisions of Section 35 of the Act, including its amendments, are taken care of by the compliance of the provisions of Section 4(14) of the Act. 2. The court held that the provisions of Section 57 of the Act, which deals with the appointment of teachers and officers in constituent colleges, do not apply to the petitioners because: * The said provisions were incorporated by amending Act 3 of 1990 and have not been given any retrospective effect. * The petitioners were appointed prior to the coming into effect of the said amending Act.
Final Decision: The court allowed the writ petition to the extent that it directed the concerned Universities to take steps under Subsection (14) of Section 4 of the Act in respect of regularisation of the services of the teachers of the Colleges which have become constituent colleges of the different Universities in fourth phase.
A.K. Ganguly, J. - This writ petition has been filed by one organisation in the name and style of Bihar Mahavidayalaya Shikshak Awam Shikshketar Karamchari Kalyan Mahasangh through its President and several other teachers of various colleges which have become constitutent colleges of different universities.
2. The petitioners apprehended that their services may be terminated on the basis of the report of vigilance enquiry.
3. Apprehending such termination of services the petitioner filed this writ petition and obtained from this Court an order for maintenance of status quo on 21st June, 1995.
4. In the intervention petition filed in this proceeding by the Inspector General (Cabinet) Vigilance Department it has been stated that due to issuance of an order of status quo by this Hon'ble Court on 21st June, 1995 the process for issuing order of termination of the services of the petitioners came to a halt. It is therefore clear that the apprehensions of the petitioners have a factual basis.
5. It is not in dispute that in this State various colleges attached to the Universities were converted into constituent colleges in phases and in the fourth phase of such conversion about 36 of such colleges were converted into constituent colleges in different Universities and by another notification three colleges were made constituent units of the different Universities.
6. Factually there is no dispute in the instant case that as a result of process of conversion• of the affiliated colleges into the constituent colleges, agreements have been entered into.
7. The Bihar State Universities Act, 1976 defines the constituent colleges and affiliated colleges separately.
The affiliated colleges defined under Section 2(c) of the Bihar Universities Act, 1976 (hereinafter referred to as the said Act), means educational institution having received privileges of the University according to the provisions of this Act and University statutes relating thereto. Section 2(c) of the Act is set out below:-
2(c): - "Affiliated college" means educational institution having received privileges of the University according to the provisions of this Act and University statutes relating thereto:
Constituent College has been defined under Section 2(i) of the said Act. Section 2(i) is set out below:
2(i) "Constituent College" means a teaching institution maintained or controlled by the University." The said Act deals with constituent colleges and affiliated colleges differently and the scheme of the said act also suggests that those colleges are different in may respects.
8. Section 4 of the said Act, provides for the purpose and powers of the University.
Section 4(14) of the Act is relevant for our purpose and is set out below:-
Sec. 4(14): "to enter into agreement with other bodies and persons for promoting the purposes of this Act and to assume the management of any institution under them and to take over its assets and liabilities:
Provided that before entering into such an agreement the University shall obtain the sanction of the State Government, or shall do so upon receiving such a proposal from the State Government :
Provided further that if at any time any irregularity is found in determination and payment of any pay, special pay or allowances, or in any appointment in an institution taken over by the University in its management under such an agreement, then, notwithstanding anything to the contrary contained in this Act, the University shall have the powers to take decisions after reviewing it and such a decision shall be final and binding."
9. In the course of hearing it was not disputed by the learned counsel appearing for the State that agreements were entered into between the Governing body of the College and the respective University and thereafter the conversion of the affiliated colleges into constituent ones were brought about.
10. Relying on the aforesaid uncontroverted facts situation, learned counsel for the petitioner argued that where an affiliated
