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CASE NO.:

Appeal (civil) 6098 of 1997

PETITIONER:

State of Bihar & others

RESPONDENT:

Bihar Rajya M.S.E.S.K.K.M.& others

DATE OF JUDGMENT: 12/10/2004

BENCH:

Y. K. Sabharwal & D. M. Dharmadhikari

JUDGMENT:

J U D G M E N T

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]

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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].

Dharmadhikari J.

In this appeal, preferred by the State of Bihar against the

judgment dated 31.1.1997 of the High Court of Patna, the dispute is

concerning the absorption of about 4,000 employees working on

teaching and non-teaching posts in 40 colleges affiliated to various

universities which were taken over as constituent colleges in

accordance with the provisions of Bihar Universities Act, 1976. The

aforementioned affiliated colleges were made constituent colleges of

respective universities under the Resolution of the Government of

Bihar taken in the year 1986 and implemented by the respective

universities 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 teaching institution maintained and controlled by the

university itself.

By letter dated 19.8.1986, the State of Bihar conveyed its

decision to all the Vice-Chancellor of various universities in the State of

converting 36 affiliated colleges mentioned in the appended list as

constituent colleges. Three other colleges were similarly decided to be

converted as constituent colleges under decision conveyed by letter

dated 03.7.1987. One minority educational institution was also

decided to be converted as constituent college. In all thus 40 affiliated

colleges were decided to be converted into constituent colleges. In the

decision conveyed by the State, the universities were instructed in

accordance with the provisions of Section 14 of the Act to pass a

formal resolution for taking over the assets and liabilities of the

various affiliated colleges falling within the respective universities and

enter into formal agreements with their governing bodies for the

purpose of converting them into constituent colleges.

In the same decision of the State Government, the universities

were directed to obtain from each of the affiliated colleges information

regarding sanctioned teaching and non-teaching posts existing on the

date of taking over of the colleges as constituent colleges and also

ascertain information with regard to proposals for creation of

additional posts in the affiliated colleges which were received from the

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universities by 30.4.1986 and were pending with the government. The

list of teachers appointed against such additional posts pending for

approval of the State Government were also directed to be separately

prepared for the purpose of consequential action on the part of the

State Government.

Consequent upon the above decision of the government with

instructions to the universities to take various steps for identifying the

number of sanctioned posts, the proposals for additional posts

received by the universities and pending with the government for

approval, a further decision was conveyed by the State Government by

letter dated 12.6.1987. The aforesaid subsequent decision has

created the present controversy on the claims of various categories of

teachers and non-teaching employees for absorption in the services of

their respective converted constituent colleges. By the subsequent

decision contained in letter dated 12.6.1987, it was directed that in

addition 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 information in

the prescribed proforma showing separately names of teachers and

non-teaching employees working against sanctioned posts and those

working against posts the creation of which was recommended by the

University for sanction of the State Government.

On 17.1.1987, the Government of Bihar constituted a separate

committee headed by Chairman of Inter-Universities Board to examine

the proposals received before the cut off date i.e. 30.4.1986 for

creation of posts of teachers and non-teaching staff in affiliated

colleges which were converted into constituent colleges. On the report

of the said Committee which were subsequently reconstituted on

01.2.1988, the State Government passed an order to absorb

employees working against teaching and non-teaching posts but only

on provisional basis because there were disputes with regard to the

claims for absorption of certain members of the staff in various

colleges.

The State Government later constituted eight-member

committee and thereafter a five-member committee to go into the

question of absorption of members of the staff in the converted

constituent colleges and ascertain number of posts duly created before

the cut-off date and which were pending with the Government for

approval or sanction.

On the recommendations of the above mentioned two

committees, on 18.12.1989, the 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.

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It seems that with the change of elected government there was

rethinking on the decision of the earlier government to absorb

members of the staff working against additional posts for the creation

of which sanction was awaited. Large number of employees, it was

reported, got surreptitious entry into the services of the erstwhile

affiliated colleges in connivance with the members of governing bodies

of the said colleges and tried to take advantage of conversion of those

colleges into constituent colleges. A large number of complaints of

manipulations and fabrication of records in affiliated colleges were

received by the Government which became a subject of hot debate in

Legislative Assembly and public.

The State Government took a decision to set up a vigilance

enquiry into the alleged malpractices adopted by the various affiliated

colleges in inducting employees, 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 petitions of

the employees' association. The High Court made the following

observations and issued following directions in the concluding part of

its judgment:-

"In that view of the matter, the controversies have not reached

a finality as contemplated under section 4(14) of the Act. This

Court, therefore, directs the concerned universities to take steps

under sub-section (14) of section 4 of the said Act in respect of

regularization of the services of the teachers of the colleges

which have become constituent colleges of the different

universities in the fourth phase.

Even though, the universities have been made parties including

the chancellors of the said universities, and they have been

served with notice, but nobody appeared on behalf of the

universities or on behalf of the chancellors nor any affidavit has

been filed.

In that view of the matter, this Court directs the universities

who are parties of this proceeding to take steps in accordance

with the communication of the State Government which is at

annexure-5 of the writ application in the light of the observation

made in this judgment and in accordance with the provisions of

section 4(14) of the said Act within a period of four months

from the date of receipt/production of a copy of this order.

It is, however, made clear that till such steps are taken by the

respective universities, the status quo as existing on today will

continue. With the aforesaid direction this writ petition is

allowed to the extent indicated above. No order as to costs.

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Aggrieved by the judgment and the directions made by the High

Court, the State of Bihar has preferred this appeal. From the record of

the proceedings in this appeal, it seems this Court thought that

before the universities are directed to implement the order of the High

Court and to complete the process of absorption of employees of

various categories in the constituent colleges, an independent enquiry

is required to be made through a high power Commission so as to

identify alleged bogus appointees in various affiliated colleges who

sneaked into the services of the erstwhile affiliated colleges in

connivance with the authorities of the various Colleges and Universities

of the State. With the above view, after adding new State of

Jharkhand as a separate party (as a result of bifurcation of State of

Bihar into two States), this Court by order dated 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 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 57A 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(14) of the Bihar State

University Act, 1976 and other orders of government?"

The one-member Commission completed within two years the

stupendous task of examining the records, hearing various authorities

of the State and the colleges as also individual employees. After

seeking extension of period for completing the enquiry, the

Commission has submitted a detailed report on 19.12.2003. On

submission of the report of the enquiry commission, parties were

granted time to submit their written objections, if any. Objections have

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also been filed before this Court in large number. The Commission has

purposely, as was expected of it, avoided to express any opinion on

the legal issues involved and which are pending decision before this

Court. Some opinions have been expressed by the Commission on the

provisions of the Act with the limited purpose of providing necessary

information to this Court, for coming to a right and just conclusion.

In answer to 'terms of reference' no. 1, enquiry commission has

taken different cut-off dates for different affiliated colleges with

reference to the dates on which decision was taken to convert them

into constituent colleges. Thus taking 30.4.1986 or 31.3.1987 or

01.1.1987 as dates applicable to the particular colleges, the

Commission has identified the number of sanctioned posts and the

members of the staff working against each of them. It has given

separate report for one minority institution in which there was no

indication of cut-off date. To answer term No. 2, the commission has

divided it into two parts and answered each separately. Identification

has been done in respect of each college which had sent proposals

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

government taken by it from time to time which are contained in its

letters dated 19.8.1986, 25.8.1986, 30.6.1986 and 18.12.1989. At

this very stage, it would be proper for us to opine that we find no

merit in the objections submitted to this part of the report of the

commission which is based on the contents of the various resolutions

of the government on the subject of converting affiliated colleges into

constituent colleges. We agree with the opinion of the Commission

that only such members of the staff are liable to be considered for

absorption who were working against additional posts for which

proposals had been received from the universities by the State

Government before the cut-off date. The other proposals for

creation of posts which were pending at the university level are

outside the purview of the various decisions taken by the government

to take over the 40 affiliated colleges. The claims for absorption of

services of employees working against posts for which proposals had

not reached to the State Government before cut off date, are liable to

be rejected.

With regard to term of reference no. 3, requiring identification of

teaching and non-teaching members of the staff, who have not been

appointed through selection made by College Service Commission/

Universities Service Commission and enquiry about their possessing or

not possessing basic qualifications prescribed for the posts in

accordance with the Act and the Statutes, the conclusions of the

commission are that the revised list submitted by the screening

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committee dated 30-1-1987 containing names of employees

recommended for absorption is not worthy of acceptance.

In the course of its enquiry, the commission found that there

were interpolation and tampering with records including the

proceedings of governing bodies of certain colleges. The screening

committees constituted by the universities under the resolution of the

government have gone into that aspect and have prepared a list of

members of the staff who deserved to be absorbed. According to the

opinion of the Commission after the screening committee had

completed its task, the screening committee, without assigning any

reasons, could not have submitted revised list to include some more

names or exclude others. This inclusion and exclusion can be an

omission or error in original report or it was done on other extraneous

consideration. In the 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 concerned. Decision in individual cases, with due regard

to the qualification of each employee and corresponding statute

applicable at the relevant time prescribing qualification, if any, for the

teaching and non-teaching post, is required to be taken by the

university based on the findings in the report of Justice Agrawal

Commission and in the light of the legal position explained in this

judgment.

In answer to the terms of reference no. 4 requiring identification

of teachers and non-teaching employees who are entitled to

absorption on the basis of government resolution dated 19.8.1986 and

the agreements entered between universities and the concerned

colleges, the commission after a thorough enquiry and probe into

records of the various colleges have given three separate lists \026 (i)

teachers appointed against the sanctioned posts have been placed in

the order of the date they became eligible for consideration; (ii) list of

teachers appointed against posts for which the recommendations were

sent by the universities to the State Government upto the cut-off

date are arranged in the order of the date they became eligible for

consideration and (iii) list of teachers appointed against posts for

which recommendations were sent by the universities to the State

of Bihar after the cut-off date and those for which no

recommendations were sent by the universities.

After hearing the counsel appearing for various parties and

considering their objections, we find no difficulty in accepting the

report of the commission so far as list no. (i) containing names of

employees working on sanctioned posts and list no. (ii) containing

names of employees working on posts for which recommendations

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were sent by the universities to the State upto the cut-off date. So far

as list no. (iii) is concerned, it has been seriously objected to the

State Government and in our opinion, there is justification for it. The

teachers, who were appointed against the posts for which

recommendations were sent by the universities to the State after

cut-off date or for which there were no recommendations sent by the

universities, can claim no right of consideration for absorption,

whatever may be the reasons for alleged delay in sending

recommendations. It is likely that due to fortuitous circumstances

some recommendations which could have been sent by the universities

to the State were not submitted before 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 it alone has jurisdiction to set up enquiries including a

vigilance enquiry for identification and considering the absorption of

only such staff of the erstwhile affiliated colleges which had been duly

appointed with the prior approval of the State Government. The High

Court allowed the writ petitions filed by the Federation of the

employees and issued a writ directing the universities, which are

impleaded as parties to the petitions, to take steps and consider

absorption of the existing staff of the affiliated colleges in accordance

with section 4(I)(14) of the Act within a period of four months from

the date of the order.

Learned senior counsel Shri Rakesh Dwivedi appears for the

State of Bihar as the appellant before us. He has mainly attacked the

judgment of the High Court on the ground that it placed erroneous

interpretation on the relevant provisions of the Act and has arrived at

a wrong conclusion that the respective universities alone in respect of

affiliated colleges within their jurisdiction have to consider the merits

of the claims for absorption of various categories of members of the

staff [teaching and non-teaching] of affiliated colleges in accordance

with section 4(I)(14) of the Act.

We take up first the legal submissions advanced on behalf of the

State as appellant on the interpretation of the relevant provisions of

the Act.

To appreciate the rival contentions advanced on the

interpretation of the various relevant provisions of the Act, it would be

necessary to examine the scheme and make a brief survey of relevant

provisions of the Act.

The Act has been passed in the year 1976 'to establish and

incorporate affiliating teaching universities at Muzafferpur, Bhagalpur,

Ranchi, Gaya [Bhodgaya] and Dharbhanga in the State of Bihar'.

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Section 2(c) defines the affiliated college thus :-

"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."

Section 2(i) defines the 'constituent college' as under :-

"2(i). 'Constituent College' means a teaching institution

maintained or controlled by the University."

Section 4 enumerates various purposes and powers of the

universities and clause 14 of sub-section (I) of section 4 of the Act

which is directly under consideration for interpretation 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. \026 (I) There shall be

the following purposes and powers of the University.

.............

..............

(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."

[Emphasis supplied]

Other relevant provision is section 35 of the Act which prohibits

any affiliated college from creating a post or making appointment to

any post without prior approval of the State Government. Sub-clause

(i) of clause (b) of section 35 has been substituted by Act No. 3 of

1990 but without any material change over the original sub-clause (i)

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of clause (b) of section 35. Sub-clause (i) of clause (b) of section 35

prior to its substitution by new clause under Act No. 3 of 1990 reads

as under :-

"35. No post for appointment shall be created without the prior

sanction of the State Government. \026 'Notwithstanding anything

contained in this Act', no University or any college affiliated to such

a university, except such college :-

(a) .....................

(b) as is established by a religious or linguistic minority;

(i) shall after the commencement of this Act, create any

teaching or non-teaching post involving financial

liability;

(ii) ...................

(iii) ...................

(iv) ......without prior approval of the State

Government.

Sub-clause (i) of clause (b) of section 35 inserted by Act No. 3 of

1990 reads as under :-

"35. No post for appointment shall be created without the prior

sanction of the State Government. \026 Notwithstanding anything

contained in this Act, no University or any college affiliated to such a

university, except such college :-

(a) .....................

(b) as is established 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 for requirement of consultation with a

'College Service Commission' set up for affiliated colleges on dismissal,

termination, removal and retirement of employees of affiliated

colleges. Clause (c) of sub-section (2) of section 57A substituted by

Act No. 3 of 1990 is relevant only for the purpose of ascertaining the

legislative intention and as an aid to the interpretation of the

provisions regulating the absorption of staff of affiliated colleges. Sub-

section (2) of section 57A requires recommendation of 'College Service

Commission' for making appointments to teaching posts in affiliated

colleges. Thus, there are two separate commissions \026 one for

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constituent colleges to be set up under Bihar State University

[Constituent Colleges] Service Commission Act 1987 and another for

affiliated colleges to be set up under Bihar College Service Commission

Act of 1976. Section 57A with all sub-sections and clauses added to it

by various amendment Acts read as under :-

" 1[57A]. (I) Appointment of teachers 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 teachers of such colleges shall be done by the Governing

Body in consultation with the College Service Commission in the

manner prescribed by the Statutes :

Provided that the Governing Bodies of affiliated minority colleges

based on religion and language shall appoint, dismiss, remove or

terminate the services of teachers or take disciplinary action against

them with the approval of the College Service Commission :

Provided further that the advice of the College Service Commission

shall not be necessary in cases involving censure, stoppage of

increment or crossing of efficiency bar and suspension till investigation

of charges is completed.

(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 teachers of affiliated colleges till the

date of their being made constituent colleges. Its

consent recommendations shall be deemed valid only till

that date.

(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.

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 appointments against the same

in the affiliated colleges is within the exclusive jurisdiction and power

of the State under section 35 of the Act. The section opens with a

non-obstante clause meaning thereby that section 35 would have

overriding effect on clause 14 of section 4(I). The contention

advanced is that such appointees of the affiliated colleges who were

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working against non-sanctioned posts can claim no right of absorption

after the conversion of affiliated colleges into constituent colleges. It is

pointed out that taking advantage of the decisions dated 12.6.1987

and 18.12.1989 of the State Government by which information was

called with regard to appointees against post for which sanction was

pending either with the university or the State Government, large

number of manipulations and fabrications of the records took place in

various affiliated colleges to facilitate surreptitious entry in services of

the constituent colleges of several employees who were either

appointed after the cut off date or appointed illegally. It is also

contended that the second decision of the Government dated

18.12.1989 was taken after the change of elected government and it

had no prior approval of the Council of Ministers. The said decision of

18.12.1989, which is purported to have been issued with the approval

of the Chief Minister for and on behalf of the Cabinet, cannot be

treated to be a valid resolution of the Government. It being not

formally taken and expressed in the name of Governor in accordance

with Article 166 of the Constitution of India, is not binding on the State

Government. On behalf of the State, therefore, it is contended that the

High Court committed a serious error in allowing the writ petition

preferred by the association of employees of erstwhile affiliated

colleges and directing the universities concerned to re-examine

regularity or otherwise of all appointments in the affiliated colleges for

absorption of the staff into converted constituent colleges in

accordance with Section 4(I)(14) of the Act.

On behalf of the teachers and employees, learned counsel who

appeared separately in the cases in which they are engaged, advanced

arguments projecting different points of view on the interpretation of

the provisions of section 4(I)(14) and section 35 of the Act. In

substance common argument advanced is that section 4(I)(14), which

deals with powers of 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'.

Pointing out above distinction in the two expressions of non-obstante

clauses in section 4(I)(14) and section 35, the contention advanced is

on the subject of absorption of teachers of affiliated colleges which are

converted into constituent colleges, section 4(I)(14) overrides

section 35 and the directions made by the High Court, therefore,

deserve to be maintained.

For deciding to the question of interpretation of section 4(I)(14)

and section 35 and the competing claims of the State and the

University concerning their powers in the matter of absorption of the

staff of erstwhile affiliated colleges converted into constituent colleges,

a closer examination of the two provisions in the light of other

provisions of the Act becomes necessary. Section 35 is couched in

mandatory terms. It prohibits any affiliated college either to create a

teaching or non-teaching post involving financial liabilities or to make

any appointment against such post without prior approval of the State

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Government. Compared with this provision, clause 14 of section 4(I)

enables the university, after obtaining sanction from the government

or on the basis of the proposals of the State Government, to take over

any 'institution' affiliated or non-affiliated. It is with the purpose of

enabling universities to take over any institution that it has been

conferred with a power to enter into an agreement with the Governing

and/or Managing Body of such institution. After entering into such

agreement the university is empowered by the proviso to clause 4 to

review the appointments made in the institution which is taken over

and take a decision with regard to the regularity or otherwise of the

appointments. The decision of the university in the above regard is to

be held as 'final and binding'.

Taking note of the difference in language employed in the non-

obstante clauses in section 4(I)(14) and somewhat similar clause in

section 35, we do find that the legislature intends to give overriding

effect to one provision over the other. Proviso to clause 14 of section

4(I) uses the expression 'notwithstanding anything to the

contrary contained in this Act' whereas opening part of section 35

uses the expression 'notwithstanding anything contained in this

Act'.

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. [See 'Principles of Statutory Interpretation', 9th Edition by

Justice G.P. Singh \026 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. 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. [See for relevant discussion in para 20 in Shri Swaran Singh & Anr. v. Shri

Kasturi Lal; (1977) 1 SCC 750]

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. [See Bipathumma & Ors. v. Mariam Bibi; 1966(1) Mysore Law

Journal page 162 and at page 165]

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

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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.

In contrast, clause 14 of section 4(I) operates in a totally

different field that is where on grant of sanction by the government or

on receiving a proposal from the State Government, the university

enters into an agreement with any affiliated or non-affiliated institution

to take over its management with assets and liabilities. It is with

regard to such institutions which are taken over with the staff working

in them that the university has been given exclusive power to review

the appointments made in such institution and take a decision

regarding absorption of the staff with due regard to the regularity or

otherwise of their appointments. Clause 14 of section 4(I), by the

language employed in it, contemplates taking over of even such

institutions where there may be staff employed 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 accordance

with the terms of agreement entered into with the governing bodies of

those institutions. It is a different matter that in taking a decision for

absorbing the staff of non-affiliated or affiliated institution under an

agreement to be entered into with the Governing Bodies or

Managements of such institution, the university may bestow due

regard to the validity or otherwise of the appointments where the

institution is an affiliated college and the qualifications of persons

appointed. University may also take into consideration the provisions

of section 35 to decide whether any appointment made against posts,

without prior approval of the State Government, should be recognized

for absorption or not.

In the course of argument on behalf of the State, it is urged that

the provision requiring prior approval for creation of posts and

appointments against them in section 35 is mandatory in nature and

no ex-post facto approval can be granted.

On the other hand on behalf of the employees, learned counsel

has argued that looking to the other provisions of the Act particularly

those permitting absorption of existing staff regularly appointed or

otherwise, the provision requiring 'prior approval' in section 35 is to

be construed as merely directory meaning that it does not prohibit

State Government granting an ex-post facto approval to a post created

and appointment made against it.

We do not consider it necessary to express any final opinion as

to whether the provision of 'prior approval' contained in section 35 for

creation of posts and appointments in affiliated college is mandatory or

directory. For the purpose of this batch of cases, it is sufficient for us

to opine that clause 14 of section 4(I) operates in exclusive field of

considering and taking decision on absorption of staff appointed

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regularly or otherwise in an institution including an affiliated or non-

affiliated college which is to be taken over as 'constituent college'

under a formal agreement reached between the university and the

Governing Body of that college. In the process of taking over of

management, assets, liabilities and staff of the affiliated or non-

affiliated college, the university has to take a decision with regard to

absorption of existing staff. In this process of consideration for

absorption, it may have regard to the provisions of the Act including

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 jurisdiction of concerned university in accordance with

Section 4(I)(14) of the Act .

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.

Clause (c) to sub-section (2) of section 57A was introduced by

Act 3 of 1990 and has no retrospective application to the cases of

affiliated colleges taken over as constituent colleges prior to the year

1990. The said clause (c) to sub-section (2) of section 57A requires

further approval of Bihar State University [Constituent Colleges]

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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 made contrary to the

provisions of the Acts, statutes, rules and regulations would be invalid

and liable to be terminated at any time. It also provides that any

expenditure incurred by the university against such illegal, irregular,

unauthorized appointments/promotions shall be realized from the

officers found responsible for committing such illegality as a public

demand under the provisions of Public Demand Recovery Act 1914.

Clause (c) of section 57A (2) introduced in the year 1990 and sub-

section (3) of section 35 introduced in the year 1993 being

prospective in operation have no application to the affiliated colleges

taken over as constituent colleges with the existing staff prior to the

year 1990. Those provisions introduced subsequently in the year 1990

and 1993 are being referred to for a limited purpose to show that the

Legislature has always treated differently the normal recruitment

which has to be made with approval of State Government to teaching

and non-teaching posts in affiliated colleges and the matter of

absorption of existing staff appointed against sanctioned or non-

sanctioned posts in the affiliated colleges taken over and converted as

constituent colleges.

The two non-obstante clauses, although slightly differently

worded one in proviso to Section 4(I)(14) and the other in Section 35

of the Act have thus, been construed harmoniously. Our conclusion is

that they operate in two different fields \026 former to consideration of

absorption of staff of taken over colleges and the latter to affiliated

colleges when they are not under any proposal of being taken over by

the university. The two provisions being intended to operate in two

different situations and fields both have an overriding effect on each

other. That is why the Legislature has employed a non-obstante

clause in each.

Based on the various decisions taken by the State Government

from time to time to which reference has already been made above, by

order passed on 01.2.1988, the State Government on the

recommendations of the Committee constituted by it to consider

proposals for creation of additional posts and proposals for affiliation

which had been received from the universities up to 30.4.1986,

decided to grant sanction to the proposals.

On behalf of State of Bihar and State of Jharkhand, learned

counsel appearing have contended that the order dated 01.2.1988

granting sanction 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

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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 Justice S. C.

Agrawal [Retd.]. On the question of validity of the order dated

01.2.1988, the Enquiry Commission delved into the notings in the

government files and found that the Education Minister had recorded

in one of the files that the Cabinet in its meeting held on 22.6.1988

had authorized the Chief Minister to take a decision in that regard.

According to the Commission, the order dated 01.2.1988 is duly

authorized order of the State Government and this fact is evident from

the subsequent Resolution No. 307 dated 08.3.1988, which is duly

authenticated order issued in the name of the Governor of Bihar. The

subsequent Resolution formally issued in the name of Governor is a

sequel to the order dated 01.2.1988 and does not disturb it.

So far as the order dated 18.12.1989 of the State Government

directing absorption of employees against posts sanctioned and

recommended by the Committee, the Commission did not go into that

question stating that it was subject matter for decision before this

Court in the present pending appeal.

Since the validity and authenticity of the two orders dated

01.2.1988 and 18.12.1989 were not raised before the High Court and

were raised for the first time before the Commission, we decline to go

into them. The joint stand taken on behalf of the State of Bihar and

the State of Jharkhand before this Court, deserves to be rejected.

That apart the Commission has taken note of the fact that the

order dated 01.2.1988 was followed by a formal Resolution No. 307

dated 08.3.1988 which was duly authenticated order issued in the

name of Governor of Bihar and did not disturb the order dated

01.2.1988. It is a resolution formally taken and expressed in the name

of Government of Bihar in accordance with Article 166 of the

Constitution of India to give effect to the order made on 01.2.1988.

So far as the order dated 18.12.1989 is concerned, the State

being the author of that decision merely because it is formally not

expressed in the name of Governor in terms of Article 166 of the

Constitution of India, the State itself cannot be allowed to resile or go

back on that decision. Mere change of the elected government does

not justify dishonouring the decisions of previous elected government.

If at all the two decisions contained in the orders dated 01.2.1988 and

18.12.1989 were not acceptable to the newly elected government, it

was 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

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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, stands disposed of with the above directions.

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

The contempt petitions have been filed by members of the staff

individually and jointly. Many of them were not even parties before

the High Court. They complain non-compliance of order of this Court.

After the Commission of Enquiry to be headed by Justice SC Agrawal

(retired judge of this Court) was set up, the employees were directed

to be paid their salary along with admissible allowances pending

decision of this appeal.

In the counter-affidavit filed by alleged contemnors, who are

the authorities of the State, the defence taken is that since the

question of validity of appointment in various affiliated colleges and

absorption of members of the staff was under investigation before the

enquiry commission and in this Court, it was not possible for the State

to make payment of salary to such persons whose appointment itself

was in serious doubt. The Commission has also found several cases of

manipulations and interpolations in the records. It is submitted that in

the above circumstances, non-disbursement of salaries to such

employees, whose appointments itself were in serious doubt, cannot

be held to be a deliberate contempt which deserves any punitive

action. The stand taken by the contemnors seems reasonable and

justified. Salaries could not have been disbursed to such employees

whose appointments were in serious doubt. We find no good ground

to take any punitive action against the authorities. The Contempt

Petitions, thus, stand disposed of.

For Impleadment/interventions :

Large number of applications individually and collectively have

been filed by the employees objecting to the report of the Commission

to the extent it adversely affects their status, right of absorption and

payment of salaries to them. By different applications, they have

sought their joinder as parties to the appeals before us and filed

objections to the enquiry report. We have considered all the written

objections and submissions filed in support thereof. Most of the written

objections by individual employees preferred independently or through

their associations are mainly based on the reports of the Committees

constituted by State Government and the recommendations for

absorption made by the concerned universities.

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.

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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 report of the Enquiry Commission and in

the light of our judgment.

In some of the written objections, certain mistakes of names and

descriptions of employees in the Report of the Commission have been

pointed out. Such mistakes in the Report of the Commission may be

brought by the affected employees to the notice of the universities

concerned. It would be open to the universities, for the above limited

purpose to undertake enquiry and verification of the records to rectify

and rely upon the report of the Commission with the necessary

corrections only with regard to the names and descriptions of the

employees.

In view of this judgment and the directions made herein to the

University to take a final decision based on the report of the enquiry

commission, all the applications for impleadment as parties and

objections filed to the enquiry report are rejected. It is for the

University to take a final decision concerning the individual employees.

For the same reason, no further orders are required on the

Interlocutory applications seeking certain directions pending the

appeal and for modification of earlier orders made. Other interlocutory

applications also need no further directions or orders. They all stand

disposed of.

Conclusions :

1. 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.

2. 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.

3. 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.

4. 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

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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 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.

The arduous work of scrutinizing large number of files, hearing

large number of individual employees and their associations as also

concerned authorities and preparing and submitting a detailed report

to facilitate this Court in deciding these cases, was completed by Mr.

Justice S. C. Agrawal [retired] as one-member Enquiry Commission

within a reasonable period. Before parting with this case, we thankfully

acknowledge the valuable services of the Commission.

In the result, the appeal, the connected special leave petition

and contempt petitions, all are dismissed. The applications for

impleadment as parties, applications seeking interventions and other

applications raising objections to the report of the Enquiry Commission

and seeking directions, all stand rejected.

In the circumstances, we leave the parties to bear their own

costs incurred in this Court.