Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 516 (PAT)

Saroj Kumari v. State Of Bihar

2009-04-01

NAVIN SINHA

body2009
JUDGEMENT 1. I.A. No. 1966 of 2006 has been filed for exemption from personal appearance of respondent no. 2 as directed on 19.3.2009. 2. This Court upon going through the pleadings in the I.A. application and the grounds stated therein is satisfied that the I.A. application deserves to be allowed. 3. It is accordingly allowed. 4. Heard learned counsel for the petitioner, learned counsel for the State of Bihar and learned counsel for the Magadh University. 5. Learned counsel for the State hands over the cost amount in terms of the earlier order to the learned counsel for the petitioner. 6. Counter affidavit has been filed on behalf of State of Bihar, by whose orders the petitioner is primarily aggrieved. 7. The Magadh University has chosen not to file any counter affidavit, denying the assertion of facts pleaded in the writ application, in so far as they relate to the University. The submissions in the writ petition to that extent are therefore deemed to be admitted on the principles of non-traverse. The Courts proceeds on that basis. 8. Learned counsel for the University states that the University is not obliged to file any counter affidavit till the Court does not direct it to do so. The Court refrains from making any observation on the submission. It is not the clear stand of the University that it does not wish to file counter affidavit. The duty of the University is to assist the Court in dispensation of justice and not to asume the role of a private litigant in an adversarial manner. 9. The Allama Iqbal College, Biharsharif at Nalanda is a minority aided college. The petitioner was appointed in the minority institution as a Lecturer in the Department of Pali, On 12.5.1999 the University College Service Commission in exercise of its statutory powers under Section 57A of the Bihar State Universities Act, 1976 accorded approval to the appointment of the petitioner as Lecturer in the subject of Pali. The petitioner continued to discharge duties as a Lecturer in the subject of Pali. The stoppage of salary of persons like her and other Lecturers travelled to this Court in C.W.J.C. No. 7076 of 2001 and C.W.J.C. No. 6328 of 2001. Following a contempt application for non-compliance of the directions therein, funds were released for payment of salary for the period from September, 2004 to February, 2005. 10. The stoppage of salary of persons like her and other Lecturers travelled to this Court in C.W.J.C. No. 7076 of 2001 and C.W.J.C. No. 6328 of 2001. Following a contempt application for non-compliance of the directions therein, funds were released for payment of salary for the period from September, 2004 to February, 2005. 10. Learned counsel for the petitioner points out from the order of this Court in C.W.J.C. No. 6328 of 2001 that this Court had clearly observed to the following effect in its order at the last paragraph: This writ petition is accordingly disposed of with the observation that the order passed in the case of Gajendra Pd. Singh (CWJC No. 7067 of 2001) will apply to the case of the petitioner as well and also to the other teachers of the college who are similarly situate and whose names are mentioned in the letter, dated 12.5.1999 issued by the Bihar College Service Commission to the Secretary of the Managing Committee of the College a copy whereof so at Annexure-9. 11. The petitioner being one of the persons named in the recommendation dated 12.5.1999 is fully covered by the same. 12. Learned counsel for the State submits that the number of post of Lecturers in the College in question was reduced from 76 to 64 on 30.3.2005 by the Human Resources Development Department. This resulted is only one post of Lecturer in the subject of Pali. The petitioner holds the second post. The post no more being sanctioned, the question of payment of salary does not arise. 13. Though learned counsel for the petitioner sought to persuade this Court with regard to the illegality on the issue of reduction of posts, this Court is not persuaded to go into that aspect at this stage. If the occasion arises, the petitioner shall have full opportunity and liberty to contest on that issue in light of the observations contained hereinafter. 14. From the counter affidavit filed of behalf of the respondents, the admitted facts emerging are that the petitioner was recommended by the University Service Commission for appointment on 12.5.1999. There is also an order of this Court in C.W.J.C. No. 6328 of 2001 with regard to persons like her for payment of salary. 15. 14. From the counter affidavit filed of behalf of the respondents, the admitted facts emerging are that the petitioner was recommended by the University Service Commission for appointment on 12.5.1999. There is also an order of this Court in C.W.J.C. No. 6328 of 2001 with regard to persons like her for payment of salary. 15. The specific assertion of the petitioner at Paragraphs-27 and 28 of the writ application that there were two posts of Lecturer in the subject of Pali approved both by the Bihar Inter University Board and Magadh University, has not been denied in the counter affidavit of the State or other respondents. What the State respondents essentially urge is that subsequently the posts were reduced to one post. 16. If the appointment is initially valid and the appointment has not been interfered with in a manner in accordance with law, the question of non-payment of salary does not arise. Any subsequent reduction of posts can be only, but in accordance with law and in no other manner, which includes due opportunity to the person affected. Issues shall also arise with regard to the legality of retrospective abolition of a post to the prejudice of the person holding it and its justifiability in the law. There is no occasion for the Court to consider these aspects at this stage, which may have to be considered at an appropriate time by an appropriate forum in accordance with law after hearing all concerned. 17. The writ application is allowed. Only a formal reiteration in terms the directions -of this Court already given in C.W.J.C No. 6328 of 2001 is quoted above, is required. The Court accordingly orders. 18. Let the necessary funds be made available by the State respondents for payment of arrears of salary alongwith future salary to the petitioner, in accordance with law. 19. Learned counsel for the petitioner prays that a time period for payment may be specified. This Court does not consider it necessary in view of the law laid down by the Apex Court, that where no time is specified, the order is required to be complied forthwith. 20. The writ application is allowed.