TMI Blog2004 (10) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... sities on entering into formal agreements with the affiliated colleges in the year 1987. This appeal is being decided along with the connected special leave petition and contempt petitions. Our decision in the present main appeal, which we take as a lead case, would dispose of all other connected cases and interlocutory applications. It is not necessary for us to go into all the facts and details as we would be confining our decision to the legal issues raised before us. The necessary factual background for the purpose of understanding the legal issues raised before this court in these cases is as under:- The State of Bihar took a decision to convert affiliated colleges of different universities into constituent colleges of concerned universities in a phased manner. The words 'Affiliated college' and 'constituent college' are defined in section 2(c) and 2(i) of the Bihar State Universities Act, 1976 [ for short 'the Act']. Every institution recognized and receiving privileges of the universities in accordance with provisions of the Act and universities' statutes is called 'affiliated college'. 'Constituent college' means a tea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition to the proposal for creation of additional posts pending with State Government, the proposals for approval of posts for additional subjects in the colleges which had been received from the universities up to 30.4.1986 and pending with the government, be also ascertained and necessary information in the prescribed proforma be sent to the government to consider creation of posts, granting of affiliation to additional subjects and absorption of teachers who were appointed against such posts. In the resolution of the government, 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 and list of various teachers who were working against sanctioned and non-sanctioned posts before the cut- off date. In implementation of the resolution of the government to convert the 40 affiliated colleges into constituent colleges formal resolutions were passed by the governing bodies of the affiliated colleges. The three-member committees constituted by the universities completed their investigation for submitting necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees, who had not been legally appointed in various affiliated colleges prior to cut-off date fixed in the resolution of the Government to take over the colleges. On the setting up of the vigilance enquiry, apprehensions arose of large scale termination and dispensation with the services of employees of various categories of employees working on teaching and non-teaching posts in erstwhile affiliated colleges. The association of the employees representing both holders of teaching and non-teaching posts approached the High Court in writ petition leading to the passing of the impugned judgment and the present appeal. In the writ petitions, the association of the employees of the affiliated colleges claimed a writ of prohibition restraining State and the universities from dispensing with or terminating the appointments of nearly four thousand employees working in different colleges under universities. They also sought a further relief that their services be protected and not interferred with. The Division Bench of the High Court after examining the record of the case, the contents of proceedings of the various committees and construing the provisions of the Act, allowed the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 12.10.2001 appointed Shri Justice S. C. Agrawal, retired Judge of this Court as one member Enquiry Commission to go into the various controversies and disputes with regard to the absorption of employees of the erstwhile affiliated colleges in the services of the converted constituent colleges. The Terms of Reference to be answered after enquiry, by the one-member Commission of the hon'ble retired Judge read as under :- 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 pp206-207 of SLP and other dates mentioned in government communications in respect of four other colleges]? 3. How many teachers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with regard to creation of additional posts and which have been submitted by concerned universities to the education department of the State before the cut-off date. Separate identification has been done by the Commission regarding proposals for creation of additional posts submitted by each college before the cut-off date and which were pending with the concerned universities. On the basis of the decision of the government conveyed from time to time by various letters to the universities, the Commission has come to a conclusion that the decision taken was to absorb services of members of teaching and non-teaching staff of converted constituent colleges only against additional posts for which proposals had been received from the universities by the State Government by the cut-off date and were pending for consideration with the State Government. In the opinion of the Commission, there is no decision of the Government to consider for absorption the staff working against such posts, the proposal for creation of which had been submitted by the governing bodies to the universities before the cut-off date. We have perused carefully the contents of decisions of the governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion of the commission, the last mentioned eventuality is not ruled out. It is in these circumstances that the commission has recommended that revised list of the screening committee dated 30.1.1987, deserves no consideration. After reading the report of the commission and considering the objections raised to it by the various parties before us, in our opinion the report of the Commission proposing rejection of the revised list submitted by the screening committee on 30.1.1987, which show inclusion or exclusion of certain names from its original list, deserves to be accepted. So far as the qualifications of the various categories of holders of teaching and non-teaching posts are concerned, the commission has gone into contents of the various statutes prescribing the qualifications for different teaching posts pursuant to the recommendations of University Grants Commission which were adopted by the universities with implementation of revised scales of pay. In our opinion, decision on absorption of the existing teaching and non-teaching staff of the affiliated colleges, which are taken over as constituent colleges, is within exclusive jurisdiction of the universities co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the cut-off date, nonetheless, on the basis of clear terms of the government resolution, such appointees working on posts recommended after cut-off date can legitimately claim no right of being considered for absorption. The Division Bench of the High Court construed the relevant provisions of the Act and accepted the contentions advanced on behalf of the employees that in accordance with section 4(I)(14), the concerned universities themselves, in respect of colleges within their jurisdiction, are empowered to take a decision on the disputes regarding the validity of the appointments in the affiliated colleges and the absorption of those appointees in the constituent colleges. The High Court was of the opinion that in view of the non-obstante clause contained in proviso in section 4(I)(14), the constraints in section 35 of the Act which provides for grant of prior approval to the creation and appointment to the posts in the affiliated colleges, will have no application to absorption of existing staff of affiliated colleges taken over by the universities on their conversion as constituent colleges. The High Court rejected the contentions advanced on behalf of State that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before us, confers power on the university to assume management of any educational institution as also take over its assets and liabilities. This power can be exercised by the university after obtaining sanction of the State Government. The university can also take over by entering into an agreement with the concerned governing body, management of any educational institution upon receiving a proposal for the same from the State Government. In the instant case, the proposal to take over affiliated colleges emanated from the State Government which was conveyed to the universities by its letter dated 19.3.1986. Proviso to clause 14 of Section 4(I) contains a non-obstante clause. It confers power on the university to take decision with regard to the appointments, special pay or allowances and irregularity, if any, found in respect thereof in affiliated colleges of which management is assumed by the university with its assets and liabilities. As it is stated in the proviso, the decision taken by the university 'shall be final and binding'. Clause 14 of section 4(I) of the Act with its proviso needs full reproduction :- 4. Purpose and powers of the University. (I) There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a religious or linguistic minority; (ii) 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. [Emphasis supplied] A new sub-section (3) of section 35 of the Act has also been added by Act No. 17 of 1993 which reads thus :- Section 35(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 Demand Recovery Act, 1914. Under section 57, there is a provision of appointment of Bihar State University [Constituent Colleges] Service Commission for making selections nd recommendations for appointment to posts in constituent colleges. Section 57A which was inserted by Act No. 68 of 1982 and was applicable at the relevant time to affiliated colleges converted as constituent colleges, provides f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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. 2[(c)] For the purpose of absorbing the service of the teachers of the affiliated colleges, who were appointed by the governing body of the college against the sanctioned post before the Establishment of the College Service Commission and whose services have been approved by the University as also the 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. 1. Ins. by Act, 68 of 1982. 2. Subs. By Act 3 of 1990. Learned counsel appearing for State of Bihar has argued that power to sanction additional posts and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the university to review and take a decision on the regularity or otherwise of appointments of affiliated colleges, after they are taken over by the universities as constituent colleges, as a result of non-obstante clause contained in its proviso gives an overriding effect to the said provision over section 35. The State Government, it is argued, cannot be allowed to arrogate to itself the power of the university in the matter of absorption of members of the staff working in the affiliated colleges against sanctioned posts or against posts for creation of which sanction was pending with the university or the State Government on the date of taking over the colleges. Learned Senior Counsel Shri Ranjit Kumar by reading the text of clause 14 of section 4(I) and section 35 highlighted the different language employed in the non-obstante clauses in the two above-mentioned sections. It is pointed that in proviso to clause 14 of section 4(I), the non-obstante clause uses the expression 'notwithstanding anything to the contrary contained in this Act' whereas non-obstante clause in the opening part of section 35 uses the expression 'notwithstanding anything contained in this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [See 'Principles of Statutory Interpretation', 9th Edition by Justice G.P. Singh Chapter V, Synopsis IV at pages 318 319] 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or working without valid sanction of the posts. University is empowered to make a review of such appointments and consider absorption of such employees. The non-obstante clause using the expression 'notwithstanding anything to the contrary contained in this Act' has to be construed and given effect to with the above object and purpose evinced by express language employed in clause 14 which enables the university not only to take over the assets and liabilities of the institution but also the staff appointed regularly or otherwise. Section 35 is applicable to all 'affiliated colleges' but does not cover a situation at a stage when an 'affiliated college' is proposed to be taken over as 'constituent college' by the university on the sanction or proposal of the State Government. The subject of taking over institution affiliated or non-affiliated with assets, liabilities and staff is regulated by provisions of clause 14 of Section 4(I) alone. Section 35 of the Act requiring obtaining of prior approval to creation of posts or appointments against them, is not intended to restrict the powers of university in absorbing staff of institutions taken over in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding observance of the provisions of section 35 of the Act. In the matter of absorbing staff of colleges taken over, any alleged non-observance of alleged mandatory provision of obtaining prior approval under section 35, before creation of posts and appointments to them, would not be an impediment in the way of university to permit absorption of an employee working against a post. It may for the above purpose seek ex-post facto approval of the State Government. The decision of the government contained in its communication dated 18.12.1989 itself allows consideration of absorption of the members of the staff working against post for which sanction for creation of posts was pending with the State Government on recommendations of the university. We do not find any conflict in the provisions of section 4(I)(14) and section 35, although each contains a non-obstante clause. They intend to override each other in field exclusively assigned to each. Appointments in affiliated college in normal circumstances has to be with prior approval of State Government in accordance with section 35 but subject matter of absorption of services of staff taken over shall be within exclusive jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said clause (c) to sub-section (2) of section 57A requires further approval of Bihar State University [Constituent Colleges] Service Commission before absorbing the services of teachers of the affiliated colleges converted into constituent colleges. The aforesaid piece of subsequent legislation amending the same Act can appropriately be taken as an aid to the interpretation of the unamended provisions of the Act. The amended provisions of the Act is an indication that subject of absorption of staff of taken over affiliated colleges is treated as a subject distinct from regular recruitment to the posts in affiliated colleges which is to be made with prior sanction or approval of the State Government as provided in section 35 of the Act. Similarly, Sub-section (3) added to section 35 by Act 17 of 1993 is also prospective in application and has no adverse effect on the absorption of the services of the teaching staff of the affiliated colleges taken over as constituent colleges prior to 1993. Sub-section (3) applies to normal mode of recruitment to staff [teaching or non- teaching] of affiliated colleges and is merely reiteration of the legal position that appointments and promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction and affiliation for certain posts received by the universities before the cut-off date on recommendation of the Committee constituted by the State Government cannot be treated to be a valid order of the government sanctioning posts because there was no Cabinet approval to the same. It is submitted that the order dated 01.2.1988 was issued by the Deputy Secretary to Government of Bihar without any approval of the Cabinet. It has no legal efficacy. Any valid order of the government has to be formally expressed in the name of Governor in accordance with Article 166 of the Constitution of India. Similar objection has been raised against the order dated 18.12.1989 by which, relying on the recommendations of the Committee constituted, the State Government directed absorption of incumbents working on posts sanctioned and recommended before the cut-off date. The validity and authenticity of the two orders dated 01.2.1988 and 18.12.1989 of the State Government were not questioned before the High Court in the writ petition filed by the employees of the converted constituent colleges. Question on their validity was raised only before the one-member Enquiry Commission of Shri J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to it to withdraw or rescind the same formally. In the absence of such withdrawal or rescission of the two orders dated 01.2.1988 and 18.12.1989, it is not open to the State of Bihar and State of Jharkhand [which has been created after reorganization of the State of Bihar] to contend that those decisions do not bind them. Special Leave Petition (C) No. 18168 of 2002 This Special leave petition arises out of an order of the Division Bench of the High Court of Patna whereby the claim for retirement dues of the appellant, as member of the teaching staff of the erstwhile affiliated colleges, which were converted into constituent colleges have been directed to be paid to him subject to the outcome of the present appeal pending before this Court. As we have held above, the University has to take a decision on the claim of retrial dues, on the basis of the findings of the enquiry commission. The university shall examine the question of regularity or otherwise of the appointment of the appellant in the concerned college and if he was found to be entitled to be absorbed, the university, shall disburse his retrial dues. The special leave petition of Chander Kishore Sharma thus, st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. We have already mentioned above that this Court decided to set up one-member Enquiry Commission of retired Judge of this Court only because serious doubts were raised on the authenticity of the records of the affiliated colleges converted into constituent colleges as also the proceedings of the Committee and the recommendations of the universities. The Enquiry Commission set up by this Court had granted opportunity to all affected parties to place their cases before it. Some of the parties and individuals availed the opportunity before the Commission. Most of the objections to the report of the Enquiry Commission are based on the reports of the various committees set up by the State and the recommendations of the universities. Thereafter, we set up an Enquiry Commission which has given its report. It is, therefore, not possible to grant any relief or directions in favour of the objectors on the basis of the reports of the various committees and recommendations of the universities. We have now directed the universities concerned, in respect of colleges within their respective jurisdiction to issue formal orders of absorption in the constituent colleges on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 5. 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. 6. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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