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BEFORE THE HON’BLE JUSTICE S.B. SINHA COMMISSION

NEW DELHI

Krishna Nand Yadav Claimant

Vs.

Magadh University & Ors. Respondents

Index

S.No Contents Pg. No.

1.. Brief Synopsis

2. List of Abbreviations

3. Consolidated Reply

on Behalf of State of

Bihar

4 Miscellaneous

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I. BRIEF SYNOPSIS:

The current dispute owes its origin to the decision of the State of

Bihar to convert 36 affiliated colleges situated in the State of

Bihar, as constituent colleges vide Letter No. 1095 dated

19.08.1986. The number was subsequently raised to 40. As a

result of this decision a number of Screening Committees were

constituted by the Universities to identify the actual number of

sanctioned posts in each colleges and employees working against

them. The Reports of these Committees were sent to the State

Government. However, as it turned out, there was inconsistency

in the Reports of these Committees and there were large number

of incidences of interpolation and tampering with the records. As

a result, the State Government directed a Vigilance enquiry

against the same. The Vigilance enquiry stated in its Report that a

large number of appointments have been made in violation of

Section 35 and 57A of the Bihar Universities Act, 1976.

Meanwhile, Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. v.

State of Bihar and Ors. was filed before the Hon’ble High Court of

Judicature at Patna which culminated into the Special Leave

Petition titled as the State of Bihar and Ors. V. Bihar Rajya

M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129. The

Hon’ble High Court vide order dated 31.01.1997 in Bihar Rajya

M.S.E.S.K.K. Mahasangh and Ors. v. State of Bihar and Ors. held

that the University had the Power to take decision in respect of

services of teaching and non-teaching employees concerned with

all the related colleges made constituent in 4th phase under the

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provisions of Section 4(1)(14) Bihar State Universities Act , 1976

in lawful manner within the period of four months from the date of

the judgment. The State of Bihar filed Special Leave Petition

against the aforesaid judgment of the Hon’ble High Court. The

Hon’ble Supreme Court in order to resolve the controversy, vide

order dated 12.10.2001 passed in State of Bihar and Ors. vs.

Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors., constituted a one

man enquiry Commission headed by the Hon’ble Justice S. C.

Agrawal and directed the Commission to submit its Report with

respect to employees who were entitled for absorption and those

who were not entitled for absorption. The Hon’ble Justice S.C.

Agrawal Commission had the following 4 Terms of Reference:

1. “How many sanctioned posts of teachers and non-

teaching employees were there in the 40 colleges which

were converted into constituent colleges pursuant to the

sanction letter dated 19.8.1986 of the State of Bihar.

2. How many proposals with regard to creation of

posts for teachers and non-teaching employees had been

submitted to the Education Department of the State of

Bihar or Universities before 30.4.1986, the cut-off date

mentioned in Appendix „Kha‟ (p. 208 of SLP) with respect

to 36 colleges converted into constituent colleges as per

government letter dated 19.8.1986? (List of colleges is at

pp. 206-07 of SLP and other dates mentioned in

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government communication in respect of four other

colleges)

3. How many teachers and non-teaching employees

seeking absorption in the constituent colleges were not

appointed through selections made by the college service

Commission/University Service Commission and whether

they possess the basic qualifications prescribed by the act

and statutes? This exercise will be without prejudice to the

contention of the respondents that Section 57-A is not

applicable to such selection, as has been held by the High

court in the judgment.

4. How many teachers and non-teaching employees

would be entitled to absorption on the basis of the

government letter dated 19.8.1986 and Appendix „kha‟ and

the agreement entered into between the University

concerned and the constituent college under section 4 (1)

(14) of the Bihar State Universities Act 1976 and other

orders of the Government?”

The Hon’ble Justice S.C. Agrawal Commission submitted its

Report on 19.12.2003, which was accepted by the Hon’ble

Supreme Court in State of Bihar and Ors. Vs. Bihar Rajya

M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129 vide Order

dated 12.10.2004, whereby the Hon’ble Court discarded all the

objections raised against the Hon’ble Justice S.C. Agrawal

Commission Report.

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It is pertinent to mention that Pursuant to the judgment of the

Hon’ble Supreme Court in State of Bihar and Ors. vs. Bihar Rajya

M.S.E.S.K.K. Mahasangh and Ors. ; 2005 (9) SCC 129 various

matters came to be filed and in one such matter, the Hon’ble High

Court of Judicature at Patna, in LPA No. 1304/2009 vide Order

dated 11.03.2010 ordered the setting up of two member

commission to decide the fate of employees placed in List (iii) i.e.

category R-II/NR of the Hon’ble Justice S.C. Agrawal Commission

Report and meanwhile to pay the salaries of the employees who

were currently working at their respective posts. However, the

working of the two member Commission was stayed by the

Hon’ble Supreme Court in SLP (C) No. 12591/2010 titled as

Krishna Nand Yadav & Others vs. Magadh University and Others;

vide order dated 07.05.2010. Thereafter, the Hon’ble High Court

of Judicature at Patna in Contempt Petition being MJC No.

5237/2010 vide Order dated 22.06.2011 directed the State of

Bihar to pay the salaries of the employees who were working in

the concerned Colleges. Thereafter, the Hon’ble Supreme Court in

SLP (C) No. 27964-65 vide Order dated 17.10.2011 stayed all the

contempt proceedings pending before the Hon’ble High Court and

vide order dated 21.10.2011 passed in Krishna Nand Yadav vs.

Magadh University & Ors; the Hon’ble Supreme Court listed the

matter for final disposal. Consequently, vide Order dated

22.01.2013 owing to the facts and circumstances of the case, the

Hon’ble Supreme Court in Krishna Nand Yadav vs. Magadh

University & Ors appointed Hon’ble Justice S.C. Agrawal as one

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man commission to enquire into the following aspects of the

matter:

“ a) The Commission shall adjudge the claims of

each of the employees (both teaching and non

teaching) for absorption in constituent colleges on the

anvil of Justice Agarwal Commission report dated

10.12.2001 and the decision of the Supreme Court in

State of Bihar versus Bihar Rajya MSESKK Maha Sangha,

2005 (9) SCC 129.

b) Each of the Writ Petitioners shall file their requisite

brief with all the details and the basis of claiming

absorption before the Commission within 4 week with

advance copies to (i) concerned University, (ii) Principal

Secretary, Higher Education, State of Bihar and (iii)

Standing counsel for State of Bihar in Supreme Court.

No claim made thereafter shall be entertained.

c) The concerned University and State of Bihar shall file

their response within 4 weeks thereafter.

d) The present order shall relate only to cases which

have been disposed of by the Patna High Court vide

judgment and order dated”

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11.03.2010 in LPA No. 1304 of 2009 and connected

matters.”

However, as Hon’ble Justice S.C. Agrawal expressed his inability

to continue to work as one man Commission, the Hon’ble

Supreme Court vide Order dated 19.08.2013 appointed Hon’ble

Justice S.B. Sinha as one man Commission to enquire into

various issues mentioned in Order dated 22.01.2013.

II. List of Abbreviations:

The Abbreviation used in the Hon’ble Justice S.C. Agrawal

Commission are provided below for the ease of this Hon’ble

Commission:

S. No. Abbr. Full Text

A

1

R-I Posts for which

recommendation was

sent by the University

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to the State

Government upto the

cut-off date 30-04-

1986.

2

R-II/ NR Posts for which

recommendations

were sent by the

University after the

Cut-off Date 30-04-

1986 or Nor

Recommended Post.

3 S Sanctioned Posts.

B. ANNEXURES

1 IA Sanctioned Posts of

Teachers.

2 IB Sanctioned Posts of

Non-Teaching Staff.

3 IIA Recommended

Posts-Teaching Staff.

4 II B Recommended

Posts- Non- Teaching

Staff.

5 III A Teachers who were

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working on the date

of conversion-

arranged subject

wise.

6 III B Teachers who have

been appointed on

the recommendation

of Bihar College

Service Commission,

teachers who have

been permanently

absorbed under the

statutes providing for

regularisation of

temporary lecturer

and teachers who did

not possess the

requisite qualification

on the date of

appointment but have

become eligible for

consideration

subsequently,

arranged subject

wise, in the order of

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the date of

appointment

indicating the date of

eligibility against their

names.

7

IV A Teaching staff who

are eligible to be

considered for

absorption.

8 IV B Non-Teaching Staff

who are considered

eligible for absorption.

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III. Consolidated Reply on Behalf of the State of Bihar:

The claims can be classified into 11 different categories

It is submitted that the stand of the State of Bihar for the following

categories of claim is mentioned below. There are 11 different

categories of claims for the teachers and 8 different categories of

claims for the non- teachers. It is stated that the present reply is to

place on record the stand of the State of Bihar in respect of each

of the category for ease of this Hon’ble Commission, for all the

concerned Universities. Terms of reference of the Hon’ble

Supreme Court are very specific and parties cannot enlarge the

terms and address on issues beyond the terms of reference.

A. TEACHERS

It is pertinent to mention at the outset that following are the 11

different categories of claims advanced by the so called teaching

staff of the 28 Colleges of 6 (six) concerned Universities of the

State of Bihar:

(i) Claim for absorption in the concerned College;

(ii) Claim for confirmation of absorption made by Universities of

the claimants placed in the R-II/NR category of the Hon’ble Justice

S. C. Agrawal Commission.

(iii) Claim for the additional sanctioning of posts on the basis of

Government Order Dated 01.02.1988 and 18.12.1989.

(iv) Claim of absorption on the basis of Government Order dated

18.12.1989 and 01.02.1988.

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(v) Claim of absorption by those who have been working against

the sanctioned posts but whose name is categorised in the list R-

II/NR of the Hon’ble Justice S.C. Agrawal Commission Report.

(vi) Claim of absorption on the basis of positional hierarchy of the

Claimants as per the Hon’ble Justice S.C. Agrawal Commission

Report. Consequently, the claim for the fresh appraisal of

Positional Hierarchy by the claimants.

(vii) Claim for absorption by those who obtained qualification after

cut-off date.

(viii) Claim for payment of all dues including retirement benefits.

(ix) Claim for absorption of services from the date of conversion of

College as a Constituent College.

(x)Claims of absorption by employees of colleges not covered by

IVth Phase.

(xi) Claim for absorption on compassionate grounds by the Legal

Representatives.

(i) Claim for absorption in the concerned College:

It is stated that this category involves three types of cases.

Firstly, those claimants whose names are not present in

Annexure III A, Secondly those whose names are present

in list R-II and thirdly those whose name are present in list

R-I.

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(a) Claimants whose names are not present in Annexure

III A.

It is humbly submitted that as per the report of the Hon’ble

Justice S.C. Agrawal Commission only the teachers who

were categorised in the S list means IA i.e. the appointees

working on sanctioned posts and R-1 list means IIA i.e. the

appointees working on posts for which the recommendation

were sent by the Universities to the State Government

before and upto the cut off date (30.04.1986). It is humbly

submitted that the S list and R-I list have to be read

concurrently with Annexure-IVA because Annexure-IVA is

the recommendation of Justice Agrawal Commission Report.

Hence those claimants whose names do not appear in III A

and not part of either sanctioned (S) list or recommended

(R-I) list cannot be considered for absorption.

(b)Claimants whose names are present in list R-II of the

Annexure III A.

It is humbly submitted that as per the report of the Hon’ble

Justice S.C. Agrawal Commission and Judgement of the

Hon’ble Supreme Court only the teachers who were

categorised in the S and R-1 lists and whose post is either

sanctioned or recommended to the State Government by the

University for sanctioning up to the cut off date i.e.

30.04.1986 are eligible for absorption. As, those claimants

were not working against either the sanctioned posts or

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recommended posts, prior to 30-04-1986, their claims

cannot be considered.

(C) Claimants whose names are present in list R-I of the

Annexure III A.

It is submitted that for the claimants whose nature of post is

indicated as R-1 in the Annexure III A terms of reference of

the Hon’ble Supreme Court are very specific and parties

cannot enlarge the terms and address on issues beyond the

terms of reference means RI list which has to be derived

from Annexure-IV A because Annexure-IVA is the

recommendation of Justice Agrawal Commission Report.

(ii) Claim for confirmation of absorption made by

Universities of the claimants placed in the R-II/NR

category of the Hon’ble Justice S. C. Agrawal

Commission.

The Hon’ble Supreme Court in State of Bihar v. Bihar Rajya

MSESKK Maha Sangha, 2005 (9) SCC 129 at para. 28 and

73 (5); while accepting the recommendations of the Hon’ble

Justice S.C. Agrawal Commission has held that the teachers

placed in list III of the Hon’ble Justice S.C. Agrawal

Commission Report cannot claim any right of absorption, as

either their recommendations were sent after the cut-off

date or no recommendations were sent in their case.

Therefore, the Universities under S.4(1)(14) of the Bihar

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State Universities Act, 1976 were to consider claims for

absorption only of the teachers whose names were

categorised under list R-I of the Hon’ble Justice S.C.

Agrawal Commission Report. Consequently, absorption

made by the Universities from the category R-II and NR is

contrary to the judgment of the Hon’ble Supreme Court in

State of Bihar v. Bihar Rajya MSESKK Maha Sangha, 2005

(9) SCC 129. Such absorption is null and void in the eye of

law.

(iii) Claim for the additional sanctioning of posts on the

basis of Government Order Dated 01.02.1988 and

18.12.1989

It is submitted that the claimants cannot claim creation of

additional posts on the basis of Govt. Letter dated

01.02.1988 and 18.12.1989 as the recommendation of the

Hon’ble Justice S.C. Agrawal Commission remains final and

binding in this regard. It is submitted that the Hon’ble

Supreme Court in State of Bihar vs. Bihar Rajya MSESKK

Maha Sangha, 2005 (9) SCC 129 has held that the list of

posts as approved by the Hon’ble Justice S.C. Agrawal

Commission would be final. Moreover the issue of

rationalisation of posts, after segregation of Intermediate

Education as well in the larger interest of Academics and

Quality Education, it is high time to consider selection and

appointment of persons with brilliant Academic career

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having National Eligibility Test (NET) qualification otherwise

quality of Education will suffer adversely.

(iv) Claims of absorption on the basis of Government

Order dated 18.12.1989 and 01.02.1988.

It is submitted that the petitioners cannot claim creation of

additional posts on the basis of Govt. Letter dated

01.02.1988 and 18.12.1989 as the recommendation of the

Hon’ble Justice S.C. Agrawal Commission and the

Judgement of the Hon’ble Supreme Court remains final and

binding in this regard. It is submitted that the Hon’ble

Supreme Court in State of Bihar v. Bihar Rajya MSESKK

Maha Sangha, 2005 (9) SCC 129 has held that the list of

posts as approved by the Hon’ble Justice S.C. Agrawal

Commission would be final. Consequently, it is submitted

that there cannot be any consideration of absorption on the

posts beyond those mentioned in the list S and R-1 of the

Hon’ble Justice S.C. Agrawal Commission Report. Issues

regarding eligibility, admissibility of post by Justice S.C.

Agrawal is final and no issue of fresh determination is

admissible in the light of the Judgement of the Hon’ble

Supreme Court. In this context, it is pertinent mention here

that additional post creation is beyond the terms and

reference of the Hon’ble Supreme Court.

(v) Claim of absorption by those who have been

working against the sanctioned posts but whose name

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is categorised in the list R-II/NR of the Hon’ble Justice

S.C. Agrawal Commission Report.

It is humbly submitted that as per the report of the Hon’ble

Justice S.C. Agrawal Commission only the teachers who

were categorised in the S list and R-1 list are eligible for

absorption. Therefore, those claims which are beyond S list

and R-1 list cannot be considered.

(vi)Claim of absorption on the basis of Positional

Hierarchy of the Claimants as per the Hon’ble Justice

S.C. Agrawal Commission Report. Consequently, the

claim for the fresh appraisal of Positional Hierarchy by

the claimants.

It is submitted that the question of positional hierarchy of

teachers in a particular subject on the basis of order of date

of eligibility and date of appointment has been decided by

the Hon’ble Justice S.C. Agrawal Commission and has been

annexed as Annexure IV A of the Report. Therefore, there

cannot be any subsequent dispute to the same in the light of

the judgment of the Hon’ble Supreme Court in State of Bihar

v. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129.

Therefore, only the teachers in the list S and list R-I of the

Hon’ble Justice S.C. Agrawal Commission are eligible for

absorption. Issues regarding eligibility, admissibility of post

categorisation as S, R-I, R-II, NR by Justice S.C. Agrawal is

final and no issue of fresh determination is admissible in the

light of the Judgement of the Hon’ble Supreme Court.

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(vii)Claim for absorption of those who obtained

qualification after cut-off date;

It is submitted that the Hon’ble Justice S. C. Agrawal

Commission vide its Report dated 19.12.2003 has given a

detailed finding in relation to the teachers who are eligible

for absorption on the basis of whether they fulfill the

requisite criteria of qualification as prescribed. Beyond these

findings, no absorption can be considered.

(viii) Claim for payment of all dues including retiral

benefits:

It is submitted that under this category of claims, the

claimants are firstly not entitled for absorption. Secondly,

as a result, their claim for arrears of salary cannot be

sustained. Further, it is submitted that as per the meeting

dated 21.09.2010 held under the Chairmanship of Hon’ble

Chancellor of the University, in the light of the directions of

the Hon’ble Patna High Court in CWJC 2732/2010 dated

09.08.2010, it was decided that only teachers placed in the

S i.e. the appointees working against sanctioned posts and

R-I category i.e. the appointees working against the posts

for which recommendations were sent by the Universities to

the State Government upto the cut off date (30.04.1986) are

entitled to payment of arrears of salary. It is submitted

that the State of Bihar accepts its liability towards the

employees placed in aforesaid S and R-I category and is

regularly releasing the grant for payment to the employees

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placed in the aforesaid S and R1 category of the Hon’ble

Justice S.C. Agrawal Commission Report. Other than these

teachers, no one else is eligible for salary dues for retiral

benefits.

(ix) Claim for absorption of services of the Claimant

from the date of conversion of College as a Constituent

College.

It is submitted that the Hon’ble Justice S.C. Agrawal

Commission vide its Report dated 19.12.2003 has

exhaustively considered the question of absorption of

employees in a constituent College against the sanctioned

post. For the purposes of determination of eligibility of an

employee for absorption, the Hon’ble Justice S.C. Agrawal

Commission has relied on the cut-off date applicable to

the University in question. Accordingly, the Hon’ble Justice

S.C. Agrawal Commission has already given a detailed

report on the eligibility of an employee on the basis of

his/her date of eligibility and the date of appointment.

Therefore, there cannot be any subsequent dispute to the

same in the light of the judgment of the Hon’ble Supreme

Court in State of Bihar v. Bihar Rajya MSESKK Maha

Sangha, 2005 (9) SCC 129. Issues regarding eligibility,

admissibility of post categorisation as S, R-I, R-II, NR by

Justice S.C. Agrawal is final and no issue of fresh

determination is admissible in the light of the Judgement of

the Hon’ble Supreme Court.

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(x)Claims of absorption by employees of colleges not

covered by IVth Phase.

It is submitted that the terms of reference of the Hon’ble

Justice S.C. Agrawal Commission as well as S.B. Sinha

Commission is limited to the conversion of affiliated colleges

to constituent colleges in the IVth phase only. Therefore, any

claims related to the Colleges not covered by IVth phase

cannot be adjudicated before this Hon’ble Commission as

the same is beyond the Terms of Reference of this Hon’ble

Commission.

(xi) Claim for absorption on compassionate grounds by

the Legal Representatives:

It is submitted that the claim for absorption on the

compassionate ground is not maintainable, not only as it is

beyond the terms of reference of the Hon’ble Justice S.B.

Sinha Commission but accepting appointment on

compassionate grounds will adversely affect the quality of

Higher Education. It is respectfully submitted here that in the

instant case there is no scope for showing any compassion

or equity in favour of teaching employees on the cost of

quality of education. The University Education in Bihar is in

shambles and it can be only improved and made at par with

National Standard by recruiting teachers of Quality and

Caliber.

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B. NON- TEACHERS

There are 8 different categories of claims advanced by the

non teaching staff of the 6 concerned Universities of the

State of Bihar; which are as follows:

(i) Claim for Absorption of Services.

(ii) Claim for creation of additional post on the basis of

Government Order dated 01.02.1990 and the subsequent

absorption of the claimant on the said post.

(iii) Claim for absorption on the basis of additional Post

shown in Annexure IIB of the College Report.

(iv) Claim for rectification in the description of the post.

(v) Claim for Payment of Arrears of Salary.

(vi) Claim for absorption on the basis of working existence of

the claimant.

(vii) Claim for absorption made by the University to be taken

into account.

(viii)Claim for absorption on compassionate grounds.

(i) Claim for Absorption of Services:

The claim of the petitioners is that they should be

considered for the absorption. However, it is humbly

submitted that as per the report of the Hon’ble Justice S.C.

Agrawal Commission the non-teaching staff who are

categorised in the Annexure-IVB are only eligible for

absorption. Therefore, the claimants whose name is not

mentioned in Annexure IVB of the Hon’ble Justice S.C.

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Agrawal Commission Report cannot be considered for

absorption.

(ii) Claim for creation of additional post on the basis of

Government Order dated 12.02.1990 and 24.02.1990 and

the subsequent absorption of the claimant on the said

post.

The claimants cannot claim creation of additional posts on

the basis of Govt. Letter dated 12.02.1990 and 24.02.1990

as the recommendation of the Hon’ble Justice S.C. Agrawal

Commission remains final and binding in this regard. It is

submitted that the Hon’ble Supreme Court in State of Bihar

vs. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129

has held that the list of posts as approved by the Hon’ble

S.C. Agrawal Commission would be final. Consequently, it is

submitted that there cannot be any consideration of

absorption on the posts beyond those mentioned in the list

of the Hon’ble S.C. Agrawal Commission Report. Additional

post creation is beyond the terms and reference as laid

down by the Hon’ble Supreme Court.

(iii) Claim for absorption on the basis of additional Post

shown in Annexure IIB of the College Report.

It is submitted that the Hon’ble Supreme Court in the State

of Bihar vs. Bihar Rajya MSESKK Maha Sangha, 2005 (9)

SCC 129 has held that the list of posts as recommended by

the Hon’ble Justice S.C. Agrawal Commission would be

final. Consequently, it is submitted that there cannot be any

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consideration for absorption on the post beyond those

mentioned in the list II B read along with IV B of the Hon’ble

S.C. Agrawal Commission Report.

(iv) Claim for rectification in the description of the post.

It is submitted that the Hon’ble Justice S.C. Agrawal

Commission vide Report dated 19.12.2003 categorised the

description of post for the non-teaching employees on the

basis of nature of post in Annexure I-B and II-B of the

Report. It is pertinent to mention that the Hon’ble Supreme

Court in State of Bihar vs. Bihar Rajya MSESKK Maha

Sangha, 2005 (9) SCC 129 has accepted the Report of the

Hon’ble S.C. Agrawal Commission, while rejecting all the

objections raised against it. Therefore, no rectification in

description of posts can be made beyond the Hon’ble

Justice S.C. Agrawal Commission Report.

(v)Claim for Payment of Arrears of Salary:

It is submitted that the claimants are not appointed against

the valid Sanctioned/Recommended post as per the Hon’ble

Justice S. C. Agrawal Commission Report. Therefore, they

cannot be granted any arrears of salary. It is stated that the

State of Bihar accepts its liability towards the non-teachers

appointed against the valid sanctioned and recommended

posts as per the Hon’ble Justice S. C. Agrawal Commission

Report and is regularly releasing the grant for payment to

the non teachers placed in the said report thereto. However,

the claimants are not appointed against the valid sanctioned

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post or the recommended post and therefore, they are not

entitled to any arrears of salary.

(vi) Claim for absorption on the basis of working

existence of the claimant.

It is humbly submitted that as per the report of the Hon’ble

Justice S.C. Agrawal Commission the non-teaching staff

who were categorised in the Annexure-IVB are only eligible

for absorption. Therefore, the claimants whose names are

not mentioned in Annexure-IVB of the Hon’ble Justice S.C

Agrawal Commission Report cannot be considered for

absorption.

(vii) Claim for absorption made by the University to be

taken into account.

It is submitted that the Hon’ble Justice S.C. Agrawal

Commission vide Report dated 19.12.2003 annexed the list

of the non-teaching staff eligible for the absorption in

Annexure IV B. It is pertinent to mention that the Hon’ble

Supreme Court in State of Bihar v. Bihar Rajya MSESKK

Maha Sangha, 2005 (9) SCC 129 has accepted the Report

of the Hon’ble S.C. Agrawal Commission, while rejecting all

the objections raised against it. Therefore, only the non-

teaching staff whose names are mentioned in Annexure IV B

are entitled for the absorption and the Universities are not

authorised to allow continuance of the services of the non-

teaching staff beyond Annexure IV B of the Report, in the

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light of the judgment of the Hon’ble Supreme Court in Bihar

v. Bihar Rajya MSESKK Maha Sangha, 2005 (9) SCC 129.

(viii) Claim for absorption on compassionate grounds.

It is submitted that the claim of the petitioners to be

considered for absorption on compassionate grounds is

beyond the terms of reference of the Hon’ble Justice S. B.

Sinha Commission.

General Submission:

That the State Government has already filed individual replies

in relation to various Universities. It is humbly submitted that

from the records it is felt that some of the

applicants/petitioners have represented only before the

Commission or before Standing Counsel and the copies

thereof have not been supplied to the State, therefore, in

those cases copies are being collected from the State

Counsel's Office at New Delhi and accordingly the replies are

prepared in the department and are being sent to the State

Counsel at New Delhi to prepare Affidavits though the reply

with respect to the applications received in the department

have already been sent. Even thereafter, there is a possibility

that some applications / petitions are unanswered by the

Department. Hence a general reply on behalf of State of Bihar

is being filed for the kind consideration of the Hon’ble

Commission. This general reply will apply to those

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applicants/petitioners for whom individual reply on behalf of

State has not been filed as yet.

IV. Miscellaneous

(A) Relevant Provisions of the Bihar Universities Act, 1976:

For the purposes of the adjudication of the present dispute, some

of the relevant provisions of the Bihar Universities Act, 1976 are

produced below:

(i). The definition of affiliated and constituent college are

covered u/s 2 of the Bihar University Act, 1976.

“Sec. 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;

(i) “Constituent College” means a teaching

institution maintained or controlled by the University;”

(ii)Section 10(6):

"The Vice-Chancellor shall, subject to the provisions of this

Act, the statutes and the Ordinances, have the power to

make appointments to posts within the sanctioned grades

and scales of pay and within the sanctioned strength of the

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ministerial staff and other servants of the University, not

being teachers and officers of the University, and have

control and full disciplinary powers over such staff and

servants."

Section 35:

“Section 35:- No post for appointment shall be created

without the prior sanction of the State Govt.-

Notwithstanding anything contained in this Act, no university

or any college affiliated to such a University, except such

colleges-

a) as is established, maintained or governed by

the State Govt. or

b) as is established by a religious or linguistic

minority;

(i) After the commencements of this Act no teaching or

non-teaching post involving financial liabilities shall be

created without the prior approval of the state Govt.

(ii) Shall either increase the pay or allowance attached to

any post or sanction any new allowance;

Provided that the State Govt. may, by an order, revise the

pay scale attached to such post or sanction any new

allowance.

(iii) Shall sanction may special pay or allowance or other

remuneration of any kind including ex-gratia payment

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or any other benefit having financial implication to any

person holding any teaching or non-teaching post;

(iv) Shall incur expenditure of any kind of any development

scheme without the prior approval of the State Govt.

(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 posts without the prior approval

of the State govt.

Provided that the approval of the State Govt. shall not

be necessary for filling up a sanctioned post of a teacher

for a period not exceeding six months, by a candidate

possessing the prescribed qualification.

(3) any appointment or promotion made contrary to the

provision of this Act, or Statutes, Rules or regulation made

there under 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. “

(iii)Section 57

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“57.A(1) Appointment of teacher of affiliated

colleges not maintained by the State Government shall

be made by the Governing Body on the

recommendation of the College Service Commission.

Dismissal, termination, removal, retirement from

service or demotion in rank of teacher of such colleges

shall be done by the Governing Body in consultation

with the College Service Commission in the manner

prescribed by the Statutes:

…………..

57 (2) Recommendation for the appointment of

teachers of colleges shall be made in accordance with

the following provisions:-

(a) College Service Commission shall give its

consent/recommendation for the appointment,

dismissal or termination etc., of teacher of affiliated

colleges till the date of their being made constituent

colleges.

(b) If an affiliated college becomes a constituent

college of a University by the time the

recommendation of the College Service

Commission is received, the Syndicate shall take

action in accordance with sub-section (4) of section

57 of the said Act, as if the recommendation has

been made by the Commission.

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(c)For the purpose of absorbing the services of the

teacher of the affiliated colleges, who were appointed

by the governing body of the college against the

sanctioned posts before the establishment of the

College Service Commission and whose services of

such teachers who were appointed by the governing

body on the recommendations of the University

Service Commission (Dissolved College Service

Commission) as the case may be, approval of the

Bihar State University (Constituent Colleges) Service

Commission shall be necessary, and such teachers

shall be absorbed in the University Service from the date

of making the College constituent and their seniority shall

be determined according to the rules prescribed in

the Statutes.”

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(B) Submissions of the State of Bihar in relation to Shri

Guru Govind Singh College:

Reply on behalf of the State Government on SGGS

1. This matter refers to Sri Guru Govind Singh (SGGS)

College, Patna City under Magadh University. Though

this college was proposed to be taken over in the 3rd

phase, it was actually taken over under 4th phase. This

college was taken over as minority-constituent college.

The definition of Minority College is covered by the order

of the Supreme Court. Article 30(1) of the Constitution of

India gives linguistic and religious minorities a

fundamental right to establish and administer educational

institutions of their choice.

2. The definition of affiliated and constituent college are

covered u/s 2 of the Bihar University Act, 1976.

Sec. 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;

(i) “Constituent College” means a teaching

institution maintained or controlled by the University;

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3. Essentially, the constituent college means, a college

completely managed and controlled by the University. It

cannot so happen that it will be a Government College

and at the same time management of the College which

among other matters includes appointment, promotion,

dismissal of teaching / non-teaching staff remains with

the Governing Body of the College.

4. However, the recruitment of the teachers in an

affiliated college ( SGGS college was an affiliated college

before its takeover) is mentioned under the Bihar

Universities Act-1976 as follows:

57.A(1) Appointment of teacher of affiliated

colleges not maintained by the State Government shall

be made by the Governing Body on the

recommendation of the College Service Commission.

Dismissal, termination, removal, retirement from

service or demotion in rank of teacher of such colleges

shall be done by the Governing Body in consultation

with the College Service Commission in the manner

prescribed by the Statutes:

5. Justice Agrawal Commission dealt this college in

depth. Pages 594-622 of Volume-IV of the report give the

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details of the establishment, mis-management, Screening

Committee reports and final recommendations. The

teaching / non-teaching members of the college had

represented before the Commission individually and also

through Mahasangha( University Employees Union).

State also filed its affidavit before the Commission. After

considering both the sides, the Commission had finally

given its recommendation which is accepted by the

Hon’ble Supreme Court.

6. Even after the Hon’ble Supreme Court accepted the

recommendations of the Justice Agrawal Commission,

Universities were reluctant to implement the Apex Court

order. Finally, the Govt. of Bihar vide Education

Department Letter 323/GSID/09 DATED 15/9/2009

instructed the University / Colleges not to take any work

from the teachers / non-teachers of category R-II and NR.

7. However in the case of SGGS College, the Magadh

University Syndicate appears to have recommended for

regularization / absorption of ten teachers falling under

the above category (R-II/NR). Reference to this decision

is made in the letter written by the Registrar of Magadh

University. This kind of passing resolution and seeking

approval from the Department is not only strange, but

violative of the Hon’ble Supreme Court order. Moreover,

neither the Syndicate nor the Registrar seem to have

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given any regard to the relevant portion of the Act which

is as follows:

57 (2) Recommendation for the appointment of

teachers of colleges shall be made in accordance with

the following provisions:-

(a) College Service Commission shall give its

consent/recommendation for the appointment,

dismissal or termination etc., of teacher of affiliated

colleges till the date of their being made constituent

colleges.

(b) If an affiliated college becomes a constituent

college of a University by the time the

recommendation of the College Service

Commission is received, the Syndicate shall take

action in accordance with sub-section (4) of section

57 of the said Act, as if the recommendation has

been made by the Commission.

8. Justice Agrawal Commission had carefully scrutinised the

reports of the screening committees and the other

relevant records before giving its final recommendation.

These ten teachers were rightly kept under RII/NR

category. Once the college became constituent college,

all its duly appointed employees became automatically

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part of the University Service. The relevant section of the

Act states as follows:

57(2)(c) For the purpose of absorbing the services of the

teacher of the affiliated colleges, who were appointed by

the governing body of the college against the sanctioned

posts before the establishment of the College Service

Commission and whose services of such teachers who

were appointed by the governing body on the

recommendations of the University Service Commission

(Dissolved College Service Commission) as the case

may be, approval of the Bihar State University

(Constituent Colleges) Service Commission shall be

necessary, and such teachers shall be absorbed in the

University Service from the date of making the College

constituent and their seniority shall be determined

according to the rules prescribed in the Statutes.

9. This provision essentially means that, once an

affiliated college becomes constituent college, it loses

the character of privately managed institute and its

employees including teaching and non-teaching staff are

deemed to be in the University Service provided they

have been duly appointed as per the provisions laid

down under the Act and the Statutes under it. In any

event the issue of whether the SGGS College is a

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minority institution or not is beyond the terms of reference

of this Hon’ble Commission.

10. It is submitted that the State as a custodian of public

exchequer cannot release the public fund towards the

payment of salaries of employees who have been

appointed by illegal/ illegitimate means. It is further

submitted that the regularisation of services of the

employees who do not have the requisite qualification will

have an adverse impact on the standard of education

being imparted in the State of Bihar. It is the duty of the

State to ensure quality education for its citizens and such

duty cannot be fulfilled if un-qualified teachers are

appointed in the educational institutions. It is the duty of

the State to ensure that only the deserving candidates get

selected to the relevant posts. It is further submitted that

absorbing in-eligible claimants will also prevent future job

opportunities for the candidates who are eligible for the

posts, as the State will be obliged to absorb the existing

in-eligible candidates first.

11. Lastly, it is submitted that the present matter is fully

covered by the judgment of this Hon’ble Court in Veer

Kunwar Singh University Ad hoc Teachers Association

and Ors. vs. The Bihar State University (C.C.) Service

Commission and Ors; (2009)17SCC184 and therefore

deserves to be dismissed.

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12. Under these circumstances, humble submission on

behalf of the State Government before the Commission is

that, no relief is acceptable to the State Government, over

and beyond Justice Agrawal Commission report and the

Hon’ble Supreme Court order in this regard.