S.J.MUKHOPADHAYA, J. - (1.) IN both the cases, as similar orders both dated 28th June, 2002 are under challenge, same question of law raised, they were heard together and are being disposed of by this common order.
(2.) BEFORE discussion of both the cases of the petitioners, it is necessary to look into the relevant facts for appreciation of the cases, as detailed hereunder: In the then State of Bihar, which includes the present State of Jharkhand, 36 affiliated colleges were made constituent colleges in 4th phase some time in the year, 1986. Subsequently, it came to the notice of the State Government that a number of posts were created without any sanction of the State Government. Against those posts, different teachers were appointed in one or other 4th phase college. The Principal Secretary -cum -Commissioner, Department of Human Resources Development, Bihar vide letter dated 18.12.1989 communicated the decision of the State of various Vice -Chancellor of the Universities about absorption/regularisation of teachers appointed and working on the posts created and/or recommended after 30th April, 1986 for its sanction. Teachers in one or other 4th phase constituent colleges were paid part salary and the dispute relating to liability of State in regard to such teachers of 4th phase constituent colleges persisted in view of the amendment Act 3 of 19f10 whereby section 35 of the Bihar State Universities Act, 1976 was amended and it was stipulated that no financial liabilities in regard to teaching and non -teaching staff shall be created without prior approval of the State Government. In many of the cases of teachers of 4th phase constituent colleges, dispute raised relating to their initial appointment on the ground that Section 57 -A of the Universities Act, 1976 was not followed. The matter was not settled. 1997(1) PLJR 533. Mahasangh took plea that Section 57 -A of the Universities Act, 1976 is not attracted, inasmuch as, all the provisions of Section 57 -A of the said Act apply to affiliated colleges and not to the teachers of 4th phase constituent colleges. The provisions of Section 57 of the Act, 1976 was also stated to be not applicable to the teachers of 4th phase constituent colleges having incorporated by amending Act 3 of the 1990. Similar submission made in respect to Section 35 of the Act relating to prior sanction of the State Government for creation of posts, having incorporated by amending Act 3 of 1990. A Division Bench of the Patna High Court in the case of Bihar Rajya MSESKK Mahasangh (supra) held that the House Committee of legislature cannot and does not have any statutory authority to decide regularity or otherwise the appointment of lecturers. In respect to vigilance enquiry, the Bench observed that any enquiry instituted in respect of commission of crimina1 offence may continue but authorities conducting investigations has no statutory power to issue orders for determination of regularity of appointment of lecturers. The Court taking into consideration that the controversies have not reached finality as contemplated under the Universities Act, 1976, directed the concerned University to take steps, in respect of regularisation of services of teachers of the colleges which have become constituent to colleges of the different Universities in 4th phase, taking into consideration the State Government communication dated 16th December, 1989. It was made clear that till such steps are taken by the respective Universities, the status quo as was existing on the date of judgment (31st January, 1997) will continue. The matter did not stop there. The State of Bihar moved before the Supreme Court against the aforesaid judgment passed in the case of Mahasangh (supra). The Supreme Court on hearing the parties passed interim order on 12.10.2001, in the case of State of Bihar vs. Bihar Rajya MSESKK Mahasangh, reported in 2002(1) PLJR (SC) 85, as quoted hereunder: Order "In the circumstances of the case, it would be appropriate to implead the State of Jharkhand as a party to these proceedings. Let notice be issued to the State of Jharkhand through its Chief Secretary, Mr. Gopal Prasad, learned counsel accepts notice. 2. In the peculiar features of this case, we think it would be appropriate to direct and inquiry to be held by Hon'ble Mr. Justice S.C. Agrawal (retired Judge of this Court) into certain matters mentioned hereunder: '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 University before 30.4.1986, the cut -off date mentioned in Appendix 'Kha' (pp. 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 page 206 -207 of SLP and other dates mentioned in Government communications in respect of four other colleges). How many teachers and nonteaching employees seeking absorption in the constituent colleges were not appointed through selections made by the Bihar State University (Constituent College) Service Commission and whether they possess the basic qualifications prescribed by the Act and Statutes? This exercise will be without prejudice to the contention of the respondents that Section 57 -A is not applicable to such selection as has been held by the High Court in its judgment?
(3.) HOW many teachers and nonteaching 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. 3. During pendency of this appeal the concerned teachers and other employees who would be affected by the ultimate outcome of the proceedings before us will get their full salary along with admissible allowances and other benefits subject to any other order made by this Court. It is made clear that the services of the teaching and non -leaching staff shall not be disturbed during the pendency of the proceedings. The State Government of Bihar and Jharkhand shall share the expenses of the enquiry to be conducted by Hon'ble Mr. Justice S.C. Agrawal and his remuneration may be paid as may be fixed by him. Each State Government shall present all evidence and material pertaining to the inquiry before the learned Judge within three weeks after he fixes the date of inquiry. The inquiry shall be completed as expeditiously as possible preferably not later than six months. 4. List after the report of the inquiry is received." 3. Petitioner, Shyam Sunder Prasad Singh of C.W.J.C. No. 2958 of 2000 was appointed as founder lecturer (Commerce) on 7th October, 1985 in Adarsh College, Raj Dhanwar, Giridih, a private affiliated college. At that time he had appeared in M.Com. examination so the college authorities stipulated payment of salary on publication of result which was published on 17th May, 1986. The petitioner Shyam Sunder Prasad Singh thus become eligible for appointment as teacher w.e.f. 17th May, 1986. The other petitioner, Birendra Pratap of C.W.J.C. No. 2964 of 2000 was appointed on 8th October, 1995 as lecturer (Chemistry) in the said Adarsh College, Raj Dhanwar, Giridih, a private affiliated college. He had also appeared in M.Sc. examination, result of which was published on 18th July, 1986. For the said reason, the college authorities made payment since August, 1986. The Adarsh College was made constituent alongwith other colleges on 19th August, 1986 so the dispute relating to absorption/regularisation of petitioners continued, as referred above. Services of both the petitioners were terminated by two orders contained in Memo No. VBU/R/4285/2000 and Memo No.VBU/ R/4286/2000 dated 28th June, 2000. The ground of termination given in the order dated 28th June, 2000 that on the date of appointment the petitioners had no master degree which they obtained later on. In this background, on the recommendation of the Enquiry Committee constituted by Vice -Chancellor as per order passed in the case of Bihar Rajya MSESKK Mahasangh (supra), C.W.J.C. No. 4021/95, their services have been terminated. 4. The stand of the petitioners of the present cases is that they having become qualified in 1986, subsequently their services cannot be terminated on the ground that they were not qualified, at the time of initial appointment. The action was also alleged to be arbitrary as in respect to similarly situated teachers of other colleges taken over in 4th phase those who obtained Post Graduate qualification subsequently such as Krishna Prasad, Naneshwar Prasad, Lal Babu Singh, Karmaditya Singh, Sri Bhagwan Singh, Kumar Kaushlendra, Birendra Prasad Singh, S.N. Shahabuddin, Dhirendra Kumar and Nagendra Kumar, their services have been regularised vide Notification dated 9th December,1998 in pursuance of the order 31st January, 1997 passed by the Court in C.W.J.C. No. 4021/95.;