Judgment S. B. Sinha, J. 1. The petitioners who are fourteen in number- and are said to be working in Maharaja Laxmeshwar Singh Medical College, darbhanga (hereinafter to be referred to as the said College have filed this application for issuance of a writ of or in the nature of mandamus directing the respondents to pay their salaries. 2. The petitioners are said to have been appointed by the Governing body of the said College on various dates ; the details whereof have been mentioned in Annexure-1 to the writ application. 3. According to the petitioners, on 30-4-1986 and 30-5-1986 recommendations were made by the University for sanction of the posts to the government pursuant to the decisions taken in this regard by a Committee constituted by L N Mithila University (hereinafter to be referred to as the said University ). It is stated that the said College was taken over by the State Government in terms of an order dated 18-8-1985 as a result of which the same became a constituent unit of the said University and whereof the petitioners were allowed to continue in the said College as non-teaching staff. 4. It is stated that although, the decision in this regard has been taken on 29-4-1986 but the said recommendations were in fact sent by the said University to the State Government on 3-5-1986. It has been further submitted that other persons whose names have also been recommended by the said University along with the petitioners on 3-5-1986 are getting their salaries. 5. The petitioners have further pointed out that the State Government took a decision that all the employees who have been working in the taken over Colleges and getting salary from the Governing Body and/whose posts have been recommended by the University for approval before 30-4-1986 shall be paid their salaries. 6. It is stated that some other employees of the said College filed a writ application before this Court being C. W. J, C No 2028 of 1992 which was disposed of by a Division Bench of this Court on 3-5-1993 wherein the following order was passed : "it is well settled that an employee either he in Government service or in the service of the respondent-University, is entitled for salary for the period, he has actually worked. As indicated above, in absence of any positive finding of the Vice-Chancellor or the statement of the Principal of the college, it is difficult for us to ascertain whether the petitioners have actually worked in the college after the date take-over. In that view of the matter, for this limited purpose, we direct the Vice-Chancellor, lalit Narayan Mithila University, to examine all the relevant materials as also ascertain from the Principal of the college and find out whether the petitioners were working in the college prior to the date of take over as also whether they have worked even after the date of take over If upon consideration of entire materials, he comes to a conclusion that the petitioners have worked, a necessary direction be issued for payment of their salaries in accordance with law. Since the matter relates to payment of salary, in our view, it requires an early disposal. Accordingly, final order in this regard must be recorded within two months from the date of production/receipt of a copy of this order. However, this order or the order of the Vice-Chancellor shall be subject to without prejudice of the case of either party, which may be pending before the Government and respondent-University. " 7. Mr Ram Chandra Jha, learned counsel appearing on behalf of the petitioners submitted that in view of the aforementioned decision of this Court, there is no reason as to why the petitioners should be discriminated against. It is further submitted that the respondents in their counteraffidavit also have indirectly admitted the petitioners had been working in the said College. 8. Our attention was further drawn to a letter of the State of Bihar dated 25-8-1986 addressed to the Vice-Chancellors of all the Universities which is contained in Annexure-3 to the writ application whereby the State government communicated its decision that persons of all Colleges whose names appear in Annexure-B to the counter-affidavit shall be paid minimum scale of pay. 9. Mr. Tekriwal, learned counsel appearing on behalf of the Respondent-University, oa the other hand, submitted that the appointments of the petitioners were in complete violation of Sec.35 of the Bihar State universities Act, 1976 (hereinafter to be referred to as the said Act ). 10. Mr. 9. Mr. Tekriwal, learned counsel appearing on behalf of the Respondent-University, oa the other hand, submitted that the appointments of the petitioners were in complete violation of Sec.35 of the Bihar State universities Act, 1976 (hereinafter to be referred to as the said Act ). 10. Mr. Jha in reply submitted that in a case of this nature where the matter is pending before the State Government, Sec.35 of the said act shall have no application. He further submitted that the said University cannot be permitted to take work from any employee as the same amount to deprivation of livelihood. 11. The question which arises in this application is vexed question. It is unfortunate that neither the State of Bihar nor the University have yet taken any decision in such matter. It is further unfortunate that, although, the agreements were entered into by and between the State and representatives of the Employees Federation, but the same was not implemented. On the other hand, the University expresses its helplessness and plead before this Court that in absence of any post being sanctioned by the state of Bihar, employees cannot be absorbed in the University Services nor their salaries can be paid. 12. Section 35 of the said Act reads as follows : "no post for appointment shall be created without the prior sanction of the State Government :- Notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such college,- (a) as is established, maintained or governed by the State Government ; or (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 without the prior approval of the State Government. (ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance : Provided that the state Government may, by an order, revise the pay scale attached to such post or sanction any new allowance ; (iii) shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment of any other benefit having financial implication to any person holding a teaching or non-teaching post; (iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Goverment. (2) Notwithstanding anything contained in this Act, no College other than one mentioned in Clauses (a) and (b) of sub-section (1), shall, after the commencement of this Act, appoint any person on any post without the prior approval of the State Government: provided that the approval of the State Government shall not be necessary for finding up a sanction post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification. " 13 On a bare perusal of the aforementioned provision it is evident that sanction for creation of the posts by the State of Bihar is a condition precedent for appointment of the incumbents therein. 14. This Court in a number of decisions inter alia held that any appointment mad: in violation of the mandatory provisions of Sec.35 of the said Act is illegal. Recently, in Manoj Prosad and others V/s. Ranchi University and others, reported in 1993 (2) BLJR 893 , a Division Bench of this Court has held as follows : "it is, therefore, obvious that these appointments were made in breach of the mandatory provisions of Sec.35 of the Act, it is no ones case that the State of Bihar has, at any stage, sanctioned the posts. Once it is held that the appointments were illegal and they stood terminated by separate orders issued in May, 1988, there is no question of payment of wages to the petitioners. It is not disputed that from May, 1988 onwards till August,1989,the petitioners were not paid their wages. From September, 1989 to january, 1991 the then Principal without any authority permitted them to work and paid them their wages despite the orders of termination of their services. That would not clothe the petitioners with a right to continue to receive wages from the college. The claim of wages is dependant upon the subsistence of employer-employee relationship. In the services of the petitioner stood terminated in May, 1988, and that order was never recalled, set aside or stayed by any competent authority, the petitioners will not be justified in claiming wages because they ceased to be employees of the College. Their claim for wages has, therefore, no merit. We may only observe that this is not the solitary instance where such illegalities have been discovered. Their claim for wages has, therefore, no merit. We may only observe that this is not the solitary instance where such illegalities have been discovered. The education system in this state has shambles and whole system has come to a grinding halt for many reasons ( one of them is that despite ban imposed by law, the Principals of various colleges, and in some cases governing Bodies, have been making illegal appointments against unsanctioned posts for ulterior considerations. The fund granted to t he colleges by the University is based upon the sanctioned posts. When that amount is sought to be distributed amongst a larger number of employees, most of them with illegally appointed, it gives rise of resentment on the part of genuinely appointed teachers who are either not paid their salary in full, or do not receive any salary at all for several months. Any effort to deal with such illegal appointments gives rise to lawlessness, and the atmosphere in the Colleges is completely vitiated Unless the State and the University-Authorities take firm action against such Principals and the members of the Governing Body, the situation is not likely to improve. " 15. The aforementioned view has again been reiterated by another division Bench of this Court in Gopi Krishna Pathak and others V/s. Ranchi university and others reported in 1993 (5) BLJR 897. 16. However, as pointed out by the Mr. Jha, a Division Bench of this court passed an order directing payment of salary of the petitioners of c. W. J C No 2028 of 1992, another Division Bench of this Court in promod Kumar and others V/s. State of Bihar and others reported in 1993 (2)BLJR 618, held as follows ; "on the basis of different materials indicated above, a question arises whether the claim of the petitioners of CWJC No.4649 of 1991 for their regularisation in the college is justified? According to mr. Jha, as these petitioners were not appointed in accordance with the statutory provision, they are not entitled for regularisation. There is no dispute that the College in question was made constituent unit of the University in the year 1970. As per Sec.10 (6) of the Act as also from different provisions of the service statute of the University, the Vice-Chancellor or the University is only competent to appoint a non-teaching staff in any of the constituent College. There is no dispute that the College in question was made constituent unit of the University in the year 1970. As per Sec.10 (6) of the Act as also from different provisions of the service statute of the University, the Vice-Chancellor or the University is only competent to appoint a non-teaching staff in any of the constituent College. The engagement of the blj (2)-21 petitioners was made by the Principal ot the College some time between 26.8 1975 to 4.7.1986, Mr. Jha has rightly contended that in view of the specific statutory provision for making appointment of non-teaching staff of the College in a particular manner, the State Government or its authorities through executive actions cannot override the statutory provisions. It is well settled that if a particular legislation provides to do a thing in a particular manner, the same cannot be altered or changed through an executive action. Therefore, since the appointment of non-teaching staff of the colleges as indicated above was not made by a proper authority, it is not open to the respondents to regularise their services on the basis of notification No.894 dated 11.7.1989 issued by the Department of Human Resources, government of Bihar. " 17. In the aforementioned decision the Division Bench of this Court not only took into consideration the provision of Sec.35 of the said Act but also provisions of the statutes framed by the said University but also the agreement entered into by the State of Bihar in the year 1989. 18. In a case of this nature where the management of a college is taken over, the University may absorb the employees but the same shall be subject to the condition that the initial appointment of such employees was a valid one and was made upon following the procedures laid down in law and only upon satisfying Itself that the sanction has been accorded by the State of bihar. The appointments so made must also be approved by the State. 19. In number of matters before us we have come across cases where appointments have been made by the Governing Body of the College hurriedly upon throwing all norms to the winds after having come to learn the decision of State of Bihar to take over th e management of the College. 20. 19. In number of matters before us we have come across cases where appointments have been made by the Governing Body of the College hurriedly upon throwing all norms to the winds after having come to learn the decision of State of Bihar to take over th e management of the College. 20. The State of Bihar had directed its Vigilance Department to make an enquiry in this regard and we are informed that the report of Vigilance department has been submitted. We, therefore, hope that an early decision in this regard shall be taken by the State of Bihar. 21. Further, in this case the petitioners have approached this Court after a long time. The petitioners in this application have prayed for issuance of a writ of mandamus directing the respondents to pay their salaries from the year 1986. Such gross delay and latches on the the part of the petitioners can not be encouraged However, if the posts are not sanctioned by the state of Bihar, no writ as has been prayed for by the petitioners can be issued. As noticed hereinbefore even the State, of Bihar directed payment of salary on the minimum scale of pay only upon certain conditions as laid down therefor are satisfied, as would be evident from Annexures 2 and 3 to the writ application. The question as to whether the petitioners fulfil those conditions or not would depend upon the report of the enquiry conducted by the Vigilance Department, 22. The respondent-University in its counter-affidavit has also stated that the matter relating to the grant of sanction of posts is pending consideration before the State Government. It has been further pointed out that all the records of the State Government have been seized by the Vigilance Department and the University does not have any paper. 23. Keeping in view the facts and circumstances of the case, we think that the interest of justice will be sub-served if the State Government directed to pass a final order in this regard within six weeks from the date of production/receipt of a copy of this order whereafter the University may make necessary scrutinies in relation to the cases of the petitioners and pass an appropriate order with regard thereto within two months thereafter. In the event it is found that the petitioners have fulfilled the conditions for their absorption in the University Services in a vacant sanctioned post, it goes without saying that the petitioners would be paid their due salaries, 24. However, in the event if it is found that the petitioners have not fulfilled the said conditions but in fact they have worked, in our opinion, the said University should consider the desirability of paying their salaries at the minimum scale of pay applicable to the petitioners but the same shall not exceed, henceforth no work should be taken from them unless appointments are made afresh in accordance with law. The State and the University shall also be entitled to recover the entire amount from the erring officers whomsoever he or they may be including the Principal of the College concerned. 25. This application is disposed of with the aforementioned observations and directions. But in the facts and circumstances of the case, there will be no order as to costs. Application Disposed.