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2003 DIGILAW 504 (PAT)

State Of Bihar v. Baidyanath Prasad Singh

2003-04-29

R.N.PRASAD, RAVI S.DHAVAN

body2003
Judgment Ravi S.Dhavan, J. 1. In the manner in which the State desires the order on C.W.J.C. No. 12502 of 1993, Baidyanath V/s. Patna University, to be challenged the record does not reflect well on public accountability either of the State Government or the Patna University. While the Court has heard learned Counsel for the State of Bihar and the Respondent Nos. 1 and 2 appearance on behalf of the University was conspicuous by its absence. The issue in the writ petition plainly is whether the petitioners were entitled to two time bound promotions. The issue was allot settled when, the Secretary, Higher Education appeared before the Court on 17th July 1995 and an order of that date recorded on an undertaking of the Secretary, Commissioner and Secretary, Higher Education, State of Bihar reads: "Mr. K.C. Saha, Commissioner and Secretary, Higher Education of the State of Bihar is present in Court, He submits that in principle, the State is committed to allow first time bound promotion and second time bound promotion in favour of the Universitys employees, for which already agreement has been signed, but certain time will be taken by the respondent-State of issuance of the proper notification relating to such grant of first time bound promotion and second time bound promotion. He prays for one months time to come out with such notification of first time bound promotion and second time bound promotion with respect to the Universitys employees." 2. If this is not all then to give more confidence tot he parties, on 23 August 1995 the Advocate General appeared on behalf of the State of Bihar. The Advocate General fortifies the commitment given by the Secretary, Higher Education and has the following statement recorded. "Mr. Advocate General, Bihar prays for one months time to act in terms with the statements made by the Commissioner-cum-Secretary, Higher Education, Government of Bihar on 17th July, 1995." 3. No sooner the statements were recorded and the proceedings were concluded, the Secretary, Higher Education reappeared and filed an affidavit in the Court withdrawing the undertaking. 4. Thus, the case was virtually relegated in the same position as when the petition was brought. This withdrawal of an undertaking is in itself a very serious matter. 5. Two issues follow from the circumstances. 4. Thus, the case was virtually relegated in the same position as when the petition was brought. This withdrawal of an undertaking is in itself a very serious matter. 5. Two issues follow from the circumstances. Has there been a contempt on the violation of an undertaking and second should there be a violation is the issue still alive to proceed against a person who retracted his undertaking or against the State of Bihar? This aspect is likely to get involved and embroiled with the attention of the Court diverted to judge a contempt action than the merits of the case itself. The withdrawal of the undertaking in any case was a contemptuous circumstance. The Court will leave this aspect at this. 6. The issue remains whether the employees are entitled to two time bound promotions as they had been recommended by the Pay Commission Reports. Whether the 4th Pay Commission or the 5th Pay Commission. 7. The stand of the State Government is that the University took upon itself to provide these benefits and it did not have the power to do so. The record is sufficiently clear to show that at some stage part of the benefits had been provided by the University and this is apparently witnessed by a notification dated 20 February, 1991 (Annexure 4) and notification dated 29 August 1989 (Annexure 5) to the writ petition. These are matters of record and have not been denied by any of the respondents. 8. The University has no immunity to be absolved from the financial discipline which has been provided by the very Act which creates it. Whether time bound promotion or any other attribute of salary, if it has to be paid in addition to salary, it will affect the finances of the university. 9. In a matter relating to finance the university has been obliged to have on its staff a financial adviser provided u/s. 12-A of the Bihar State University Act, 1976, hereinafter referred to as the Act. Then, the university has a finance officer so described u/s. 16. When the university has made out its budget which is likely to affect on the financial expenditure, the budget has to be sent every financial year to the State Government. Then, the university has a finance officer so described u/s. 16. When the university has made out its budget which is likely to affect on the financial expenditure, the budget has to be sent every financial year to the State Government. The State Government returns the budget to the University with such modification as it may deem fit and the university then is to obliged to act in conformity with such modified and approved budget. This aspect on the approval of the budget by the State Government is provided in sec. 48. Not to be forgotten is the Finance Committee provided by sec. 55. The Finance Committee advices the university on any question affecting its finance. 10. There is no escape for the university to avoid these provisions which discipline public finances and for the expenditure approval of the State Government on its budget. 11. In principle a time bound promotion whether one or two was to be provided to the staff. Clearly, it has to be provided in the budget, to be approved by the State Government which if done there will be a sanction for making payment 12. The Court does not have the record to see the modalities which may have been adopted by the university in making payment against time bound promotions nor any material on record whether the State Government approved the budget. 13. In the circumstances, of the commitment made earlier by a Secretary to the Government, which statement bound the Government, reiterated by the Advocate General and, thereafter, retracted by the Secretary, leaves the entire situation in a total mess. This matter is not to be resolved in the High Court but between the university and the State Government. Some body has to take responsibility of making payment to the staff. The Act provides the discipline and there is no escape either for the university or the State Government to take their decisions within the frame work of the law. 14. Dismissed.