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Bihar Rajya Mahavidy... v. The State Of Bihar &...
Structured Summary of the Opinion (A.K. Ganguly, J.)
Factual and Procedural Background
This writ petition was filed by an organisation styled "Bihar Mahavidayalaya Shikshak Awam Shikshketar Karamchari Kalyan Mahasangh" through its President and by several teachers of various colleges that had been converted into constituent colleges of different universities. The petitioners apprehended that their services might be terminated on the basis of a vigilance enquiry. They obtained from this Court an order for maintenance of status quo on 21 June 1995. An intervention petition by the Inspector General (Cabinet) Vigilance Department stated that the status quo order had halted the process for issuing termination orders, confirming the factual basis for the petitioners' apprehensions.
Factually, the State converted affiliated colleges into constituent colleges in phases; in the fourth phase about 36 colleges were converted and, by another notification, three additional colleges were made constituent units. Agreements were entered into as part of the conversion process. The opinion analyses these facts against the statutory scheme of the Bihar State Universities Act, 1976 (the "said Act"), particularly Sections 2(c), 2(i), 4(14), Section 35 as amended by Act 3 of 1990, and later provisions such as Section 57/57(A) and related statutory instruments and communications.
Legal Issues Presented
- Whether, where an affiliated college is converted into a constituent college pursuant to an agreement entered into under Section 4(14) of the Bihar State Universities Act, 1976, the State Government can thereafter challenge the regularity of appointments or terminate services on the basis of alleged irregularities.
- Whether the amendment to Section 35 by Act 3 of 1990 (providing that no financial liabilities for teaching or non‑teaching staff shall be created without prior State approval) applies to appointments and conversions that took place prior to the amendment (in particular, colleges converted in 1986).
- Whether provisions such as Section 57/57(A) (as introduced by Act 3 of 1990) apply to teachers of constituent colleges who were appointed prior to the amending Act's commencement.
- Whether deliberations or recommendations of the legislative House Committee or reports/ proceedings of the Vigilance Department can determine the regularity of the petitioners' appointments.
Arguments of the Parties
Petitioners' Arguments
- Where an affiliated college was converted into a constituent college pursuant to an agreement entered into under Section 4(14) of the Act (with State sanction as required), the State Government cannot later raise controversies about irregularities in appointments of the concerned petitioners.
- Section 4(14) empowers the University to review irregularities in pay, allowances or appointments of an institution taken over and makes the University's decision final and binding; that statutory finality cannot be called in question by the State under Section 35.
- The amendment to Section 35 (Act 3 of 1990) preventing creation of financial liabilities without prior State approval cannot be applied to colleges that became constituent units in 1986 because the agreement under Section 4(14) already required State sanction at the time of conversion.
- Section 57(A) applies to affiliated colleges and therefore does not apply to petitioners who became teachers of constituent colleges.
- The statute titled "Statute for Regularisation of the Services of Purely Temporary Lecturers appointed on or before 28th February, 1982" (framed under Section 5(2) of the Bihar Inter University Board Act, 1981) is not relevant to the University's powers under Section 4(14).
- Deliberations of the legislative House Committee and the Vigilance Department's enquiry do not have statutory authority to decide the regularity of appointments; they are not determinative of the petitioners' status.
State-Respondents' Arguments
- The State asserted (without specification in affidavit or argument record) that there are five kinds of teachers in the colleges in question and that although colleges have been taken over, the services of the teachers have not been taken over. This was an assertion from the bar unsubstantiated by affidavit.
- The State's communications (including a 16.12.1989 communication from Principal-Secretary-Cum-Commissioner, Department of Human Resources Development) directed universities to regularise/absorb teachers appointed and working against posts created and recommended up to 30 April 1986 in the fourth‑phase constituent colleges; the Universities had not acted on those directions.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court proceeded by close textual and contextual analysis of the statutory provisions and the uncontested factual matrix:
- The Court observed that the Bihar State Universities Act, 1976 differentiates between "affiliated college" (Section 2(c)) and "constituent college" (Section 2(i)), and that the conversion process involved lawful entry into agreements between college governing bodies and universities under Section 4(14).
- Section 4(14) was read as a complete code for taking an institution into University management: it permits the University to enter into agreements (with prior sanction of the State Government), to assume management and take over assets and liabilities, and contains a provision that if irregularity is found regarding pay, allowances or appointments, the University may review and take decisions that shall be final and binding. The Court emphasized the non‑obstante nature and statutory finality in sub‑section (14).
- On the relationship between Section 4(14) and the amended Section 35 (Act 3 of 1990), the Court held that a harmonious construction shows the Government's control over creation of teaching and non‑teaching posts is observed at the stage of entering into the agreement. Consequently, the statutory machinery contemplated by Section 4(14), entered into with State sanction at the relevant time, addresses the concern underlying Section 35's amendment.
- The Court concluded that Section 4(14) provides a "complete code" and that its statutory finality limits later challenges by the State under Section 35 where the agreement and requisite approvals predated the amendment. The Court also noted the factual point that the petitioners and similarly placed persons were appointed prior to the coming into effect of Act 3 of 1990; therefore the amending Act did not apply to them.
- Regarding Section 57/57(A), the Court observed these provisions were intended to apply to affiliated colleges; since petitioners became teachers of constituent colleges, Section 57(A) did not attract. Moreover, Section 57 was subject to the provisions of the Act and thus subject to Section 4(14).
- The Court held that the statute framed under Section 5(2) of the Bihar Inter University Board Act, 1981 (the "Statute for Regularisation of the Services of Purely Temporary Lecturers appointed on or before 28th February, 1982") is not relevant for assessing the University's powers under Section 4(14).
- The Court rejected the relevance of the legislative House Committee's deliberations and the Vigilance Department's enquiry for deciding the regularity of appointments. It explained that the House Committee has no statutory authority to adjudicate appointment regularity, and that a Vigilance or criminal investigation may proceed but the investigating authorities lack statutory power to determine the legality/regularity of appointments.
- The Court noted that the State, by affidavit of K.C. Saha (Secretary, Department of Higher Education), did not deny the existence of agreements under Section 4(14). In the absence of denial, the Court proceeded on the basis that such agreements existed.
- Because the controversies concerning regularisation under Section 4(14) had not reached finality, and because the Universities had not acted on the State's 1989 communication concerning regularisation of teachers appointed up to 30 April 1986, the Court directed the concerned Universities to take steps under sub‑section (14) of Section 4 to regularise services of teachers of the fourth‑phase constituent colleges.
- The Court also recorded procedural facts: universities and Chancellors had been made parties and served but no appearance was made and no affidavit was filed on their behalf.
Holding and Implications
Holding: The writ petition is allowed to the extent indicated: the Court directs the concerned Universities to take steps under sub‑section (14) of Section 4 of the Bihar State Universities Act, 1976 for regularisation of the services of the teachers of the colleges which became constituent colleges in the fourth phase.
Direct consequences and procedural directions imposed by the Court:
- The Universities who are parties to the proceeding are directed to take steps in accordance with the State Government's communication (Annexure‑5 of the writ application) and in light of the Court's observations, under Section 4(14), within four months from the date of receipt or production of a copy of this order.
- Till such steps are taken by the respective Universities, the status quo existing on the day of the order will continue (i.e., the earlier status quo order remains in force until the Universities act).
- The Court clarified that House Committee recommendations and Vigilance enquiries do not determine the regularity of appointments; criminal or investigative enquiries may continue but cannot supplant the statutory process under Section 4(14).
- No order as to costs was made.
Broader implications: The opinion confines its relief to directing the Universities to act under the statutory scheme; it does not purport to create any new principle beyond the Court's interpretation that Section 4(14) provides a comprehensive mechanism (with statutory finality) for review and regularisation following a takeover by a University, and that the State's later reliance on amended financial‑control provisions cannot automatically unsettle prior agreements entered into with State sanction. The Court did not cite judicial precedents; the ruling is applied to the parties and circumstances before it.
Judge Agreement: B.N. Agrawal, J. concurred ("I agree").
A.K Ganguly, J.:— This writ petition has been filed by one organisation in the name and style of Bihar Mahavidayalaya Shikshak Awam Shikshketar Karamchari Kalyan Mahasangh through its President and several other teachers of various colleges which have become constitutent colleges of different universities.
2. The petitioners apprehended that their services may be terminated on the basis of the report of vigilance enquiry.
3. Apprehending such termination of services the petitioner filed this writ petition and obtained from this Court an order for maintenance of status quo on 21st June, 1995.
4. In the intervention petition filed in this proceeding by the Inspector General (Cabinet) Vigilance Department it has been stated that due to issuance of an order of status quo by this Hon'ble Court on 21st June, 1995 the process for issuing order of termination of the services of the petitioners came to a halt. It is therefore clear that the apprehensions of the petitioners have a factual basis.
5. It is not in dispute that in this State various colleges attached to the Universities were converted into constituent colleges in phases and in the fourth phase of such conversion about 36 of such colleges were converted into constituent colleges in different Universities and by another notification three colleges were made constituent units of the different Universities.
6. Factually there is no dispute in the instant case that as a result of process of conversion of the affiliated colleges into the constituent colleges, agreements have been entered into.
7. The Bihar State Universities Act, 1976 defines the constituent colleges and affiliated colleges separately.
8. The affiliated colleges defined under Section 2(c) of the Bihar Universities Act, 1976 (hereinafter referred to as the said Act), means educational institution having received privileges of the University according to the provisions of this Act and University statutes relating thereto. Section 2(c) of the Act is set out below:—
2(c):—“Affiliated college” means educational institution having received privileges of the University according to the provisions of this Act and University statutes relating thereto:
9. Constituent College has been defined under Section 2(i) of the said Act. Section 2(i) is set out below:—
2(i) “Constituent College” means a teaching institution maintained or controlled by the University.”
10. The said Act deals with constituent colleges and affiliated colleges differently and the scheme of the said act also suggests that those colleges are different in may respects.
11. Section 4 of the said Act, provides for the purpose and powers of the University.
Section 4(14) of the Act is relevant for our purpose and is set out below:—
Sec. 4(14): “to enter into agreement with other bodies and persons for promoting the purposes of this Act and to assume the management of any institution under them and to take over its assets and liabilities:
Provided that before entering into such an agreement the University shall obtain the sanction of the State Government, or shall do so upon receiving such a proposal from the State Government:
Provided further that if at any time any irregularity is found in determination and payment of any pay, special pay or allowances, or in any appointment in an institution taken over by the University in its management under such an agreement, then, notwithstanding anything to the contrary contained in this Act, the University shall have the powers to take decisions after reviewing it and such a decision shall be final and binding.”
12. In the course of hearing it was not disputed by the learned counsel appearing for the State that agreements were entered into between the Governing body of the College and the respective University and thereafter the conversion of the affiliated colleges into constituent ones were brought about.
13. Relying on the aforesaid un-controverted facts situation, learned counsel for the petitioner argued that where an affiliated college was converted into a constituent college on the basis of an agreement which has been entered into in accordance with the provisions of Section 4(14) of the said Act, it is no longer open to the State Government to raise any controversy about the irregularities in the matter of appointment of the concerned petitioners. Learned counsel has further submitted that the University alone is empowered under Section 4(14) of the said Act to take a decision and such a decision has statutory finality under sub-section (14) of Section 4. Learned counsel for the petitioner further submitted that the said statutory finality in sub-section (14) of Section 4 cannot be called in question by the State Government in exercise of its power under Section 35 of the Act.
14. Learned counsel further submitted that from a reading of Section 35 of the said Act, it is clear that the said Section 35 suffered an amendment by amending Act 3 of 1990. After commencement of the said amending Act in the year, 1990, it is provided that no financial liabilities in regard to teaching or non-teaching staff shall be created without prior approval of the State Government. The said injunction imposed by the amending provisions, it has been argued by the learned counsel for the petitioner, cannot be made applicable in relation to a college which has become constituent unit of a University in 1986, in as much as, in the very process of conversion of an affiliated college into a constituent one the agreement which has to be entered into under Section 4(14) of the said Act, has to be with the approval and sanction of the State Government. Therefore, with the compliance of the provisions of Section 4(14) of the said Act, the provisions of Section 35 including its amendments are taken care of.
15. While considering the aforesaid submission, this Court is of the view that on a proper and harmonious construction of Section 4(14) and Section 35 of the Act read with the amendment, it is clear that the Government control on creation of teaching and non-teaching posts has been observed at the stage of entering into the agreement in 1986 under Section 4(14) of the Act.
sub-section (14) of Section 4 of the said Act provides a complete code and a non-obstante clause empowers the University to take decision in matters of pay, allowances and appointment in an institution which has been taken over by the University.
16. Learned counsel for the petitioner has further stated that Section 57(A) of the said Act is also not attracted, in as much as, all the provisions of Section 57(A) of the said Act apply to affiliated Colleges. Since the petitioners have become teachers of constituent college, the said provisions do not apply.
17. The provisions of Section 57 of the said Act have been incorporated by amending Act 3 of 1990 and has not been given any retrospective effect.
18. It is not in dispute that the provisions for appointment of teachers and officers in constituent colleges shall be controlled by the Bihar State Universities (Constituent College) Service Commission, but the same will also apply to the appointment which will be made in accordance with the said provisions after the said provisions have came into effect.
19. Here factually it is not in dispute that the petitioners and the persons similarly placed like the petitioners have been appointed to the various colleges which have now become constituent units prior to coming to effect of the said amending Act. The said amending Act, namely Act 3 of 1990, in my view, does not apply to the case of appointment of the present petitioners. Apart from that the learned counsel for the petitioners contended, and in my view rightly, that provisions of Section 57 of the said Act are ‘subject to the provisions of this Act.’ Therefore the application of Section 57 is subject to Section 4(14) of the said Act.
20. Learned counsel further submitted that the statute which has been approved by the Chancellor, namely, ‘Statute for Regularisation of the Services of Purely Temporary Lecturers appointed on or before 28th February, 1982’ cannot be pressed into services in justification of the termination of the services of the petitioners.
21. This Court is of the opinion that the said statute has been framed under Section 5(2) of the Bihar Inter University Board Act, 1981, and as such the same is not relevant for the purposes of the powers of the University under Section 4(14) of the said Act.
22. Learned counsel for the petitioner has further submitted that in the instant case, proceedings have been taken before the House Committee about the irregularity of the appointment of the petitioners and similarly placed persons, but such delibrations of the House Committee is not at all relevant for the purpose of deciding the irregularities and otherwise of the appointment of the petitioners. This Court is of the opinion that the learned counsel is quite right in his submissions that the House Committee of the legislature cannot and does not have any statutory authority, to decide the regularity or otherwise of the appointment of the petitioners. Therefore, the said deliberations of the House Committee are of no consequence for deciding the points at issue. However, in this case the recommendations of the House Committee are in favour of regularisation of the appointment of the petitioners, but this Court is not concerned with the same.
23. Learned counsel further submitted that the Vigilance enquiry which has been constituted arising out of appointment of the petitioners is also not relevant for deciding the question. This Court is also of the opinion that any enquiry which might have been instituted for investigation in respect to the commission of criminal offence may continue, but the authorities conducting the investigation have no statutory power to issue orders for determination of the regularity of the appointment of the petitioners.
24. In this connection, an affidavit filed by Mr. K.C Saha, Secretary, Department of Higher Education, Government of Bihar has been placed before this Hon'ble Court by the learned counsel for the petitioner. The said affidavit also refers to the report of the House Committee and also enquiry report of the Vigilance department. This Court has already held that the report of the House Committee or the enquiry of the Vigilance department has no relevance to the questions at issue. But in the affidavit filed by the State Government, the material facts have not been denied, namely, that there has been statutory agreement in accordance with Section 4(14) of the said Act. In absence of such denial, the Court has to proceed on the basis of the facts urged by the counsel for the petitioner that such agreements do exist.
25. Learned counsel for the State-Respondents, has, however, submitted that there are five kinds of teachers of the colleges in question. Without specifying them either in the affidavit or in the argument, the State counsel further submitted that only the colleges have been taken over, but the services of the teachers have not been taken over. This is merely an assertion from the bar. No such case has been made out in the affidavit of the State. Apart from that the said contention is not tenable in view of the admitted position that agreement as contemplated under Section 4(14) have been entered into.
26. Learned counsel for the petitioner has referred to two documents, namely, Annexure—1 which is a communication from the Education Department, Government of Bihar to the Vice-Chancellor of different Universities relating to conversion of 36 affiliated colleges of Bihar into constituent colleges in the fourth phase. Emphasis has been laid by the counsel for the State on the communication dated 16.12.1989 by the Principal-Secretary-Cum-Commissioner, Department of Human Resources Development to various Vice-Chancellors of the University about absorption/regularisation of the teachers appointed and working on the post created and recommended after 30th April, 1986 in the colleges which have been made constituent colleges in the fourth phase. In the said letter, University has been directed to take steps regarding regularisation of the teachers appointed and working against the post created and recommended till 30th April, 1986 in the colleges which have been made constituent units in the fourth phase. It is not in dispute that the Universities have not taken any steps in terms of the said direction of the State Government.
27. 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 regularisation of the services of the teachers of the Colleges which have become constituent colleges of the different Universities in fourth phase.
28. 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.
29. In that view of the matter, this Court directs the Universities who are parties to 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.
30. It is, however, made clear that till such steps are taken by the respective Universities, the status quo as existing on today will continue.
31. With the aforesaid direction this writ petition is allowed to the extent indicated above. No order as to costs.
32. B.N Agrawal, J.:— I agree.
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