Dr.Shailesh Kumar Sinha v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4044 of 2010 =========================================================== Dr. Shailesh Kumar Sinha, S/O Sri Chhotu Singh, R/O Mohalla- Ganesh Kunj, Pandriba Lane, Patna .... .... Petitioner/s
Versus
1. The State of Bihar through the Commissioner Cum Secretary, Higher Education Department, Bihar, Patna
2. The Vice Chancellor, Magadh University, Bodh Gaya
3. The Secretary, University Grant Commission, Bahadur Shah Zafar Marg, New Delhi
4. Secretary, Governing Body L.P. Sahi College, Patna, Ram Krishna Nagar, P.S.- Ram Krishna Nagar, Distt.- Patna-800027.
.... .... Respondent/s =========================================================== Appearance :
For the Petitioner/s : Mr. Daya Shankar Prasad, Advocate For the Respondent/s : Mr. (SC8) For L. P. Shahi College : Mr. Anil Kumar Singh, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT Date: 19-09-2018 Heard Mr. Daya Shankar Prasad, learned counsel appearing on behalf of the petitioner and the respondents.
2. The present writ application has been filed by the petitioner for implementation of Section 35 of the Bihar State Universities Act in affiliated College and thereby for grant of such benefit to the petitioner including payment of salary by the State Government.
3. The Scheme of Section 35 of the Bihar State Universities Act is quoted herein below:
"35. No post for appointment shall be created without the prior sanction of the State Government:- Notwithstanding anything contained
2/9 in this Act, no University or any College affiliated to such a University, except such College- (a) as is established, maintained or governed by the Government; or (b) as is established by a religious or linguistic minority;
(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.
(ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance; Provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance.
(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 nonteaching post; (iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government.
(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.
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
3/9 six months, by a candidate possessing the prescribed qualification.
(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."
4. Section 35 of the Act nowhere guarantees payment of salary to the teachers appointed in affiliated College. The College, in question, was established in the year 1987 much after commencement of the Vit Rahit Shiksha Niti.
5. Mr. Prasad, referring to Annexure-6 dated 21.11.2008 and Annexure-16 submitted that the State Government has already taken decision to recall the Vit Rahit Shiksha Niti. Reading Annexure-6 would indicate that after coming to force of Vit Rahit Shiksha Niti on 09.10.1982 a new scheme was introduced based on the performance of the students of the College forming basis of grantin-aid. The relevant part of Annexure-6 dated 21.11.2008 reads as follows:
4/9 i
5/9 ii iii iv v vi vii viii
6/9 ix x xi
6. Annexure-16 is the letter issued by the Secretary dated 04.09.2010, which was issued in continuation of letter dated 27.07.2006. Annexure-16 is quoted herein below for ready reference:
7/9
7. From tenure of Annexure16, it appears that in the matter of creation of post without financial liability, there is interplay of Section 35 of the Bihar State Universities Act, as Section 35 will be taken in case of financial liability. In Annexure-16, there is reference of Resolution no. 1846 dated 21.11.2008, which is the scheme of performance based grant to the institution. Reading Annexures-16 and 6 together will lead to one irresistible conclusion that while creating the post under Sections 35 and 52 of the Bihar State Universities Act, apart from the Scheme from the financial aid in terms of Resolution no. 1846 dated 21.11.2008, there is new formula for grant based on performance and no other ground financial owe is available. A plain reading of Annexures- 6 and 16 render the whole submission of the petitioner misconceived. There is no recall of Vit Rahit Shiksha Niti and it has only introduced for grant of performance based aid to the institution affiliated after coming into force the Vit Rahit Shiksha Niti in December 1982.
8. In view of the discussion, the Court does not find any merit in the contention of the petitioner that by virtue of Annexures-6 and 16, the petitioner has acquired right to deficit grant.
9. Mr. Prasad has referred to the decision in the case of Purbottar Railway College to contend that the post, which created
8/9 in 1987 without financial liability was interfered by this Court as discriminatory and a direction was issued to consider the case of the petitioner as discrimination is impermissible. Referring to the judgment of Purbottar Railway College case he submitted that the discrimination discussed in that case is also applicable in the present case, as the State Government cannot adopt two different yardstick, one for the constituent college and deficit college and the other to affiliated college. The Court is unable to approve the submission advanced by the petitioner as question of discrimination pre-supposes that the persons claiming status are similarly circumstanced. The status of the deficit grant college, constituent college and the affiliated college to which the petitioner belongs are different in nature.
Purbottar Railway College is deficit grant college and in that college certain post was created with financial liability whereas other post was created without financial liability that factual point is not available in this case. It is well settled that if similar are treated dissimilar then the inequality arose for if the unequal treated equal even in that the case in the result.
10. Mr. Prasad has referred to the decision of the Apex Court in the case of Uttam Kumar Vs. U.P. Higher Education Service Commission, Allahabad & Others, reported in 1995 Supp
(1) 460 where the apex Court has interfered in the matter where the
9/9 service of the petitioner was terminated after 15 years on the ground that there was no prior approval of the post by the State Government. The decision relied upon by Mr. Prasad is of no help to the petitioner for two fold reason (i) the judgment was rendered prior to coming to the force of Constitution bench Judgment of the Apex Court in the case of Secretary, State of Karnantaka & Ors. Vs. Uma Devi, reported in (2006) 4 SCC 1 wherein the new jurisprudence in the matter of regular appointment was formulated by the Apex Court. (ii) that was the case of termination and it has no application in the present case where the petitioner is seeking payment of salary at par with the teachers of constituent colleges and the deficit grant college indicated herein above, the teachers of constituent college and the deficit college stands on different footing and as such there is no question of any similarity and discrimination.
11. Considering the aforesaid, the Court does not find any merit. Accordingly, the application stands dismissed. (Anil Kumar Upadhyay, J) Uday/- AFR/NAFR NAFR CAV DATE NA Uploading Date 04.10.2018 Transmission Date