Gopaljee Sahay v. State Of Bihar — 1992 DIGILAW 108 (PAT)

Judgment S.B.Sinha, J. 1. In this writ application, the petitioner has prayed for issuance of a writ of or in the nature of mandamus commanding upon the respondents to pay his post retiral benefits including the balance amount of gratuity, deferred DA, interim relief payable to him prior to enforcement of the revised UGC scale, benefit of th new UGC Scale, including fixation of nay and arrears w.e.f. 1-1-1986, that is, in the scale of pay of Rs. 4500 to Rs. 7300 and the scale of pay of Rs. 1500-2500 for the period 1-3-1985 to 31-12-1985, D. A. including additional D. A, ad hoc D. A. and new D. A., leave encashment according to new U. G. C. scale and dues of house rent allowance for the period from 1-4-1985 to 28-2-1987. It has further been prayed that respondent Nos. 1 and 2 be directed to give unto the petitioner the aforementioned benefits directly upon adjustment of the same from the funds which;s to be given by them to respondent Nos. 5 and 6. 2. The basic fact of the matter is not at all in dispute. The petitioner was appointed as a Lecturer in the Department of Botany by the governing body of St. Xaviers College, Ranchi, which is a minority institution and received financial aid from the Government. The University Grants Commission (in short to be stated as UGC) also gives aid directly to the aforementioned institution, but not for payment of salary to the staff. The siad college is, therefore, a fully deficit grant college. The petitioner upon attaining the age of 62 years, retired from the service of said college on 31-10-1988. 3. The petitioner has contended that in view of the resolution dated 19-1-1976 which is contained in Annexure-1 to the writ application, a Professor of a Degree College is equal in rank to the Reader of the University. The petitioner was promoted to the post of College Professor in the year 1977. In 1977, the scale of lecturer was Rs. 700 to Rs. 1600 and that of the college professor was Rs. 1200 to 1900. 4. The Ranchi University made a Statute in the year 1988 whereby a policy decision was taken that a Reader on completion of 8 years of service would be entited to promotion as Univerity Professor. The Governing Body of St. 700 to Rs. 1600 and that of the college professor was Rs. 1200 to 1900. 4. The Ranchi University made a Statute in the year 1988 whereby a policy decision was taken that a Reader on completion of 8 years of service would be entited to promotion as Univerity Professor. The Governing Body of St. Xaviers College in its meeting dated 20th May, 1988 considered the case of promotion of several Readers to the post of University Professor including that of the petitioner and subsequently by a notification dated 5-9-1988 as contained in Annexure-2-A to the writ application, the petitioner along with various other persons was promoted to the post of University Professor with retrospective effect from 1-2-1985 under the time bound promotion scheme of the University. In 1985, the scale of pay of University Professor was Rs. 1500-60-1800-100-2000-125-2500. The increments were biennial after the stage of Rs. 2000. The petitioner has contended that on 1-2-1985, his basic pay was Rs. 1680 in the scale of pay of Rs. 1200 to Rs. 1900. 5. By letter dated 7-9-1988 issued by the Department of Human Resources, it has been intimated to all concerned the scales of pay of various categories of lecturers of Universities and Colleges of Bihar have been revised in terms of the recommendation of the University Grant Commission and pursuant thereto the Governing Body of the said College resolved on 28-4-1988 to introduce the said UGC scale of pay with effect from 1-1-1986. A circular dated 31-10-1988 has also been issued to the petitioner stating that he became entitled to the revised scale of pay in terms of the recommendation of the University Grants Commission from 1-1-1986 as an University Professor. 6. The petitioner has further brought on record of this case the minutes of meetings dated 1st and 2nd of May, 1989 by and between the State of Bihar and the representatives of two unions of the teachers known as FUTAB AND FUSTAB wherein the State agreed to pay full arrears and benefits of new scale of pay as also agreed to give time bound promotion to minority college teachers and further agreed to give encashment of deferred DA and payments of arrears of interim relief from 1-3-1983 to 31-3-1985 by 18-6-1989. 7. The petitioner has, therefore, contended that in that view of the matter, he is entitled to the following claims : Gratuity Rs. 7. The petitioner has, therefore, contended that in that view of the matter, he is entitled to the following claims : Gratuity Rs. 20,000 as out of a total amount of gratuity of Rs. 50,000 a sum of Rs. 30,000 has already been paid to him. Rs. 20,000 Deferred DA Rs. 62,906 Rs. 62,906.00 Dues by way of interim relief Rs. 12,335 Difference in salary on implementation of UGC scale of pay w. e. f. 1-1-1986 Rs. 32,558 Difference in D. A. Rs. 34,070 Addl. D. A. and ad hoc D. A. Rs. 11,549 Leave encashment benefit Rs. 6,506 House Rent allowance Rs. 13,220 ------------------ Total Rs. 1,60,586 ------------------ 8. A counter-affidavit has been filed only by the Ranchi University wherein it has been contended that as St. Xaviers college is a minority Institution and receives financial aid from the State Government directly, the University has no liability to pay any amount whatsoever as claimed by the petitioner in terms of the provisions of the Bihar State University Act, 1976 as also the Statutes and Rules framed therein. It has been submitted that the matter relating to post retiral benefits of the petitioner, therefore, is entirely between the petitioner, St. Xaviers college and the State Government. 9. Mr. N. K. Prasad learned Counsel appearing for the petitioner conceded that no writ can be issued in the facts and circumstances of this case as against respondent Nos. 1, 3, 4, 6. Learned Counsel, however, submitted that in view of the fact that respondent No. 5 college is a minority college and thus, a deficite grant college and in view of the fact that the State of Bihar had been giving grant in-aid to the said Institution, the concerned respondents are bound to pay the aforementioned amount to the petitioner in terms of the provisions of Ranchi University Statute. 10. Mr. Devi Prasad learned Counsel appearing for the respondents 5 and 6, on the other hand, submitted that no writ can be issued as against the said respondents. learned Counsel further submitted that in any event, the matter relating to grant of UGC scale of pay to the petitioner as also deferred D. A. etc. depends upon the approval of the petitioners promotion in the cost of University Professor by the State of Bihar and necessary release of funds by it and in that view of the matter the respondent Nos. depends upon the approval of the petitioners promotion in the cost of University Professor by the State of Bihar and necessary release of funds by it and in that view of the matter the respondent Nos. 5 and 6 cannot have any liability whatsoever in relation thereto. 11. Mr. Debi Prasad has, however, submitted that the lawful dues of the petitioner towards leave encashment has already been paid to him. Learned Counsel further submitted that the petitioner is not entitled to the retirement benefits from respondent Nos. 5 and 6 and in support of this contention, learned Counsel has relied upon a decision of this Court in 1989 Bihar Law Time 124. 12. The principal question which, therefore, arise for consideration in this application are as follows : (a) Whether the writ petition is maintainable as against respondent Nos. 5 and 6 ? (b) Whether the petitioner having retired as an employee of a minority institution, is entitled to the post, retiral benefits as has been claimed by him? 13. Re : Question No 1 : It is not in dispute that respondent No. 5 college is a minority institution and also is affilated to Ranchi University. There cannot be any doubt that as the college is affiliated to the university, it is bound to the Statutes framed in this regard from time to time by the University in exercise of its power conferred upon it under the Bihar State University Act, 1976. The terms and conditions of service governing the employees of the minority institution thus to some extent are governed by the said statutes. It is not in dispute that repondent No. 5 is an aided institution. 14. It is also well settled by reason of various decisions of the Supreme Court of India that the law regulating the affairs of a minority institution are not ultra vires Articles 29 and 30 of the Constitution of India. 15. In Shri Anadi Mukta Sadguru Shree Muktajee Vamdasji Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. V/s. V. R. Rudani and Ors. in paragraphs 14, 19 and 21 it has been held as follows; 14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. V/s. V. R. Rudani and Ors. in paragraphs 14, 19 and 21 it has been held as follows; 14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. 19. The term "authority" used in Article 226 in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may Cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. 21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states : "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed., p. 540). Commenting on the development of this law, professor De Smith states : "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed., p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We therefore, reject the contention urged for the appellants on the maintainability of the writ petition. 16. In Raj Soni V/s. Air Offlcer-in-charge Administration, it was held: The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the School. When any authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an authority under Article 12 of the Constitution of India. 17. In Tejaswini Patil V/s. Bangalore University and Ors., it was held that when a college is affiliated to a Board and is governed by the provisions of the Act, it is amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It was further held: Once we find that the activities of a private educational institutions is regulated by the provisions of the Act and the Universities Act, the mere fact that the institution is not receiving financial aid, makes no difference for the issue of a writ under Article 226 for the enforcement of the public duty and/or the provisions of the Act. 18. In Francis John. V/s. The Director of Education and Ors. 18. In Francis John. V/s. The Director of Education and Ors. reported in -- , it was held : Any private schools which receives aid from the Government under the Grant-in-aid Code which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing from the public funds under the Grant-in-aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong is upholding that the orders of the Director of Education and of the Dispute Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Taka Mams case -- . 19. In Manmohan Singh Saitla V/s. Commissioner, Union Territory, reported in -- , the Supreme Court held: the educational institution receiving financial grant from the Government is a State as defined under Article 12 of the Constitution. 20. Recently Bombay High Court in Mrs. Sojol Rikeen Dalai and Ors. V/s. The Stock Exchange, Bombay, , upon following the decision of the Supreme Court in Shri Anadi Mukta Sadguru Shri Muktajee Vandasjiswami Suvarna Jayanti Mahotsat Smarak Trust V/s. R. Rudani, reported in -- held that a writ should be issued also against a Stock Exchange. The same view has been taken recently by a Division Bench of this Court in Akhileshwar Upadhyay V/s. Magadh Stock Exchange Association and Ors. reported in 1991 (2) PLJR 404 . 21. In Frank Anthony Public School Employees Association V/s. Union of India and Ors. , it was held : The management of a senority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression of exploitation of the teaching staff of an educational institution is bound to lead, inavitably to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. Oppression of exploitation of the teaching staff of an educational institution is bound to lead, inavitably to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. 22. A Division Bench of this Court, of which I was a member, recently in Mubarak Hussain V/s. State of Bihar and Ors. being in C.W.J.C. No. 2285 of 1990 (R) disposed of on 13th December, 1991, while considering the provisions of Section 18(3)(b) of the Bihar Non-Government Secondary Schools (Eaking Over of Management and Control) Act, 1981 held that writ petition filed by a teacher of a minority institution is maintainable and the High Court in exercise of its power under Article 226 of the Constitution of India may issue writ against a minority institution as the same had been carrying on public duty of imparting education to the students of the area in question. In Mubarak Hussains case this Court followed the aforementioned Supreme Court decisions as also decision of the Karnataka High Court and also took into consideration the decision of the Supreme Court in All Bihar Christian Schools Association V/s. State of Bihar,, reported in 1988 PLJR 7 (SC). 23. In view of the aforementioned authoritative pronouncements, there cannot be any doubt that this writ application is maintainable not only against the State of Bihar but also against respondent Nos. 5 and 6. 24. Re : question No. B Sec. 59 of the Bihar State Universities Act, 1976 provides that relationship between an affiliated college and the University shall be governed by the statute. Sub-sec. (5) of Sec. 59 of the said Act empowers University to regulate conditions of service of teachers of such colleges including the grant of leave with or without allowances and the constitution of pension insurance and provident funds for the benefit of such teachers. 25. In terms of Sec. 76 of the said Act, the provisions of the Statute framed under the Bihar Act, namely, 1960 Act shall remain in force. After coming into force of 1976 Act, no Statute has been framed by the University in relation to the admitted colleges. 25. In terms of Sec. 76 of the said Act, the provisions of the Statute framed under the Bihar Act, namely, 1960 Act shall remain in force. After coming into force of 1976 Act, no Statute has been framed by the University in relation to the admitted colleges. Articles 187 and 195 of the Statute occur in Chapter XII which read as follows : Teachers of admitted colleges shall, for purposes of promotion, increment, seniority, leave, lien, travelling halting and other allowances, be given the same benefit and be subject to the same rules as may be admissible for teachers in the service of the Uiversity: provided that where special grades, increments and salaries have been provided in these statutes they shall apply for the purpose of calculation. 195. Teachers of admitted colleges shall be entitled to the same benefit of gratuity as may be admissible for teachers in the service of the University. 26 From a conjoint reading of the aforeme ntioned provisions, it is therefore clear that the teachers appointed in the (sic) colleges are entitled to the same benefits as are admissible to the teachers in the services of the University. 27. In Sahadeo Mishra V/s. Ranchi University Ranchi and Ors. reported in 1988 BLT (Rep) 124 a learned Single Judge of this Court upon consideration of the provisions of the relevant Statutes came to the conclusion that teachers of an admitted Institution are not entitled to the benefit of Statute 324 as also Statutes for the grant of retirement benefits of the employees of the Patna, Bihar, Ranchi Bhagalpur, Magadh, L. N. Mithila and K. S. D. Sanskrit University of the general conditions of service which came into force with effect from 14th November, 1980 and came to the conclusion that the benefit of the various schemes framed under the aforementioned Statutes are applicable to the employees of the University alone. 28. In that decision, it has not been held that a teacher of an admitted college is not entitled to the other benefits which are clearly governed by the provisions of the Statute. In this case, the petitioner has not claimed any pensionary benefits but has claimed only the amount of gratuity by way of post retiral benefits. 28. In that decision, it has not been held that a teacher of an admitted college is not entitled to the other benefits which are clearly governed by the provisions of the Statute. In this case, the petitioner has not claimed any pensionary benefits but has claimed only the amount of gratuity by way of post retiral benefits. So far as other benefits are concerned, admittedly the teacher of an affiliated college would also be entitled thereto in terms of the relevant provisions of the Statute. 29. In this case, the petitioner has claimed the benefit of gratuity in terms of Statute 195 as referred to hereinbefore. In terms of Article 313 of Chapter XVII, the maximum amount of gratuity was Rs. 20,000 when the scale of pay of teachers was Rs. 200 to Rs. 500. Later on, however, the said provision was changed and an employee was held to be entitled to 16 times of the lost emoluments drawn by him by way of gratuity. 30. According to the petitioner, as the maximum amount of gratuity payable to the State Government employees has since been raised to Rs. 50,,00 as it is payable in the same manner as would be applicable to the employees of the State Government, balance amount would be Rs. 20,000 as a sum of Rs. 30,000 has also been paid to him. 31. As the respondent Nos. 5 and 6 are bound by the provisions of Articles 187 and 195 aforementioned, evidently the petitioner would be entitled to the benefits granted to all the teachers of the admitted colleges by reason thereof. 32. So far as the matter relating to grant of UGC scale of pay to the petitioner with effect from 1-1-1986 is concerned in Braj Bhmhan Prasad Sinha V/s. Ranchi University and Ors. being CWJC 1420 of 1991 (R) disposed of on 11th November, 1991 upon taking into consideration the policy decision of the State of Bihar as contained in letter No. 14/P2-D9/87-HRD-1044, dated 7th August, 1989 as also the settlement dated 1st and 2nd May, 1989 entered into by and between the State with two Unions representing the teachers staff, viz, FUTAB and FUSTAB, I came to the conclusion that the State Government in principle was agreed to implement the UGC scale of pay. It was further held that the aforementioned agreement is binding upon the State and, thus it would be bound to sanction the UGC scale of pay w.e.f. 1-1-1986 and the difference in the amount of unrevised scale of pay from 1-2-1985 to 31-12-1985. 33. In Dr. B. N. Pandey V/s. Ranchi University and Ors. CWJC 898 of 1991 (R) disposed of on 20th December, 1991, this Court following the decision of Braj Bhushan Prasad Sinhas case (supra) reiterated that in view of the agreement entered into by and between the State of Bihar and two Unions, namely, FUTAB and FUSTAB as recorded in the minutes of meeting dated lst/2nd May, 1989. There cannot be any doubt that the State being bcund thereby, it is bound to implement the recommendations of the University Grants Commission and grant benefits thereof to all the eligible teachers. In this situation, it is held that the petitioner would be entitled to the said benefits. 34. In this situation, the State of Bihar is hereby directed to finalise the entire matter including the grant of sanction and release of requisite amount in favour of respondent No. 5 so that the college may be in a position to pay to the petitioner all his lawful dues on the aforementioned account. 35. In Braj Bhushan Prasads case (supra), this Court has held that payment for leave encashment should be granted for a maximum period of 180 days. As noticed hereinbefore, it has been contended by Sri Debi Prasad that the aforementioned amount has already been paid by respondent No. 5. If the said amount has not yet been paid, respondent No. 5 should pay the same immediately to the petitioner. 36. So far as the claim of the petitioner with regard to deferred D. A. as also Additional D. A. and ad hoc D. A. is concerned, the same would depend upon fixation of the scale of pay of the petitioner by the concerned respondents. 37. The concerned respondents, therefore, would determine the amount of various types of allowances payable to the petitioner upon fixation of his scale of pay in terms of recommendations of the University Grants Commission from 1-1-1986 and prior thereto at the scale of pay to which the petitioner was entitled. 38. 37. The concerned respondents, therefore, would determine the amount of various types of allowances payable to the petitioner upon fixation of his scale of pay in terms of recommendations of the University Grants Commission from 1-1-1986 and prior thereto at the scale of pay to which the petitioner was entitled. 38. So far as house rent allowance is concerned, nothing has been brought to my notice to show that the said amount is not payable to the petitioner. 39. For the reasons aforementioned, this application is disposed of with the following terms : The respondent Nos. 5 and 6 shall calculate the post-retiral benefits and other lawful dues payable to the petitioner and forward the same to the competent authorities of the State of Bihar within four weeks from the date of receipt of a copy of this order. The competent authority of the State of Bihar shall consider the matter relating to fixation of scale of pay of the petitioner in terms of the recommendation of the respondent Nos. 5 and 6 as also other relevant records and compute the amount of lawful dues payable to the petitioner within one month from the date of receipt of the recommendations from respondent Nos. 5 and 6. The State of Bihar shall remit all amounts payable to the petitioner to the respondent No. 5 within four weeks thereafter and the respondent Nos. 5 and 6 in their turn shall pay unto the petitioner the said amount without any delay and not later than two weeks from the date of receipt of the said amount from the State of Bihar. 40. The petitioner shall be entitled to interest at the rate of 10% per annum on all his outstanding dues from the date of his superannuation till actual payment. In the facts and circumstances of this case, however, 1 make no order as to costs.