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2010 DIGILAW 335 (PAT)

Lalit Narayan Mithila v. Ashok Kumar Jha

2010-03-11

DIPAK MISRA, JYOTI SARAN, MIHIR KUMAR JHA

body2010
JUDGEMENT Dipak Misra, J. 1. The present appeal under Clause-X of the Letters Patent has been preferred by Lalit Narain Mithila University and its functionaries questioning the pregnability and sustainability of the order dated 10.8.2009 passed by the learned Single Judge in CWJC No. 9025 of 2009. 2. This appeal was listed for admission on 21.1.2010 and a Division Bench of this court had directed for issuance of notice and as an ad interim measure directed stay of the operation of the order dated 10.8.2009 passed by the learned Single Judge. When the matter was listed again on 17.2.2010, after hearing the learned counsel for the parties this court passed the following order: "Though this matter was listed for orders, yet on consent of learned counsel for the parties it was thought apt to commence the hearing. In course of hearing Mrs. Nivedita Nirvikar, learned counsel for the Mithila University, submitted that a spate of litigations are pending which pertain to various Universities, namely, L.N. Mithila University, Darbhanga, Veer Kunwar Singh University, Ara, B.N. Mandal University, Madhepura, B.R. Ambedkar Bihar University, Muzaffarpur, Tilka Manjhi University, Bhagaipur, Magadh University, Gaya, Kameshwar Narayan Singh University, Darbhanga and Jai Prakash University, Chhapra and the matter is of immense signification inasmuch as the manner and method of implementation of the order of the Apex Court in State of Bihar & Ors. V/s. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors., 2005(1) PLJR (SC)465 is involved. After hearing f»r some time, we think it appropriate that this appeal as well as the writ petitions which have been filed by employees of the aforesaid Universities which are pending before the learned Single Judge should be referred to a larger Bench. Let the matter be placed before Honble the Chief Justice on the administrative side for constitution of a larger Bench." 3. In view of the aforesaid order, a larger Bench has been constituted and the appeal and the writ petitions have been placed before us. 4. We have heard Mr. P.K. Shahi, learned Advocate General for the State and Mr. Lalit Kishore, learned Senior Counsel alongwith Mrs. Nivedita Nirvikar, learnnd counsel for the University-appellant and Mr. Chitranjan Sinha, learned Senior Counsel alongwith Mr. Binodanand Mishra, learned counsel for respondent nos. 1 to 19 in the appeal. 5. Be it noted, in other writ petitions, we have heard the learned counsel for the writ petitioners, namely Mr. Lalit Kishore, learned Senior Counsel alongwith Mrs. Nivedita Nirvikar, learnnd counsel for the University-appellant and Mr. Chitranjan Sinha, learned Senior Counsel alongwith Mr. Binodanand Mishra, learned counsel for respondent nos. 1 to 19 in the appeal. 5. Be it noted, in other writ petitions, we have heard the learned counsel for the writ petitioners, namely Mr. Vinod Kumar Kanth, learned Senior Counsel, Mr. Ajit Kumar Sinha, Mr. Rajendra Prasad Singh, learned Senior Counsel alongwith Mr. Rajeev Kumar Singh, Mr. Chandra Shekhar, learned Senior Counsel alongwith Mr. Rana Randhir Singh, Mr. Nikunj Shekhar and Mr. Kumar Devashish, Mr. Tej Bahadur Singh, Senior Counsel alongwith Mr. Gyan Shankar and Brisketu Sharan Pandey, Mr. Sudhir Singh, Mr. Prakash Chandra Jha, Mr. Tuhin Shankar, Mr. Rajeev Roy, Mrs. Veena Rani Prasad, Mr. Vishal Saurabh, Mr. Amaresh Kumar Singh, Mr. Dinesh Kumar, Mr. Umesh Narayan Dubey, Mr. Ajay Kumar Singh, Mr. Ranjan Kumar Jha and Mr. Chy Prem Kumar Thakur, Mr. Nikesh Kumar, Mr. Shailesh Kumar, Mr. Yugal Kishore, Mr. Vijay Kumar Sinha, Mr. Shailesh Kumar Sharma, Mr. Praveen Kumar Verma, Mr. Binodanand Mishra, Mr. Subash Chandra Jha, Mr. Durgesh Nandan, Mr. Avanindra Kumar Jha, Mr. Arvind Kumar Singh, Mr. Gyanendra Kumar Singh, Mr. Navin Prasad Singh, Mr. Sunil Kumar Singh, Mr. Rajeev Kumar Singh, Mr. Onkar Kumar, Mr. Naval Kishore Singh, Mr. Hemant Kumar Jha, Mr. Satyanand Sharma, Mr. Vishnudeo Narayan and Mr. P.K. Shahi, learned Advocate General and Mr. Lalit Kishore, learned Additional Advocate General-Ill, Mr. Nirmal Kumar, learned Government Pleader-IV, Mr. Tej Pratap Singh, AC to G.P.-IV, Mr. Abhay Shankar Jha, Standing Counsel-IX, Mr. Shailendra Kumar Jha, A.C. to Standing Counsel-IV, Mr. A. Amanullah, Standing Counsel-XVII, Mr. Md. Fazal Rahman, learned G.P.-VI, Mr. Bijoy Kumar Sinha, A.C. to G.P.-VI, Mr. Sunil Kumar Mandal, Standing Counsel-XV and Mr. Arjun Prasad, A.C. to S.C.-XV, Mr. Prasoon Sinha, learned G.A.-III for the State and Mr. Jai Shanker Bernwal, Mr. Nirmal Kumar Singh, Mr. Vivekanana Kumar, learned counsel for the Mac.idh University, Mr. Anil Singh, learned counsel for Tilka Manjhi University, Mrs. Sujata Mukherjee, learned counsel for Veer Kunwar Singh University, Mr. Ajay Bihari Sinha, learned counsel for the B.R.A. Bihar University and Veer Kunwar Singh University, Mr. B.K. Jha, learned Senior Counsel alongwith Mr. M.P. Singh, and Mr. Abhya Kumar, learned counsel for B.N. Mandal University, Mr. Vinay Kirti Singh, learned counsel for the Veer Kunwar Singh University and Mrs. Sujata Mukherjee, learned counsel for Veer Kunwar Singh University, Mr. Ajay Bihari Sinha, learned counsel for the B.R.A. Bihar University and Veer Kunwar Singh University, Mr. B.K. Jha, learned Senior Counsel alongwith Mr. M.P. Singh, and Mr. Abhya Kumar, learned counsel for B.N. Mandal University, Mr. Vinay Kirti Singh, learned counsel for the Veer Kunwar Singh University and Mrs. Nivedita Nirvikar, learned counsel for L.N. Mithila University. 6. At the very outset it is apt to note that the present spate of litigations had a chequered history and it is imperative to adumbrate the factual scenario in entirety so that the controversy can be appreciated from proper perspective. We have used the term chequered to indicate as to how it has not been enough to clear the maze and to put the controversy to the rest despite efflux of time for a period of two decade and a half. It is necessitous to sit in a time machine and to go back in 1986. The State Government vide Letter No. 1095 dated 19.8.1986 took a decisfon to make 36 affiliated colleges as constituent colleges to the different universities of the then State of Bihar. The said letter which is the foundation, nay, the magna carta for all these 36 constituent colleges, had made it absolutely clear that it would be part of the conditions of the colleges to be made constituent that services of only such teaching and non-teaching employees who were working against the sanctioned posts or posts which were recommended and pending for sanction before the State Government till 30th April, 1986 could be absorbed by the universities. Thus, the cut-off date was fixed to be 30th April, 1986. A number of committees at the level of the colleges, universities and State Government were constituted to deliberate and dwell upon the question, but unfortunately, no final decision could be taken despite two decisions taken by the State Government on 1.2.1988 and 18.12.1989. The said decisions pertained to provisional order of absorption. When the hopes and aspirations of the teaching and non-teaching staff were getting nourished and nurtured and no final decision with regard to them was taken, an announcement by the Government was made to undo the effect of the entire process even as regards the provisional absorption in the decisions of the State Government taken on 1.2.1988 and 18.12.1989. When the hopes and aspirations of the teaching and non-teaching staff were getting nourished and nurtured and no final decision with regard to them was taken, an announcement by the Government was made to undo the effect of the entire process even as regards the provisional absorption in the decisions of the State Government taken on 1.2.1988 and 18.12.1989. The said move of the State Government compelled the affected Association to invoke the jurisdiction of this court and eventually this court in Bihar Rajya Mahavidyafaya Shikashak Avam Shiksheketar Karamchari Kalayan Mahasangh through its President Dr. Rakesh Nath Choubey and Others V/s. The State of Bihar & Others, 1997(1) P.L.J.R. 533 , allowed the writ petition by directing the universities to take a final decision for absorption in terms of power vested in them under Section 4(1)(14) of the Bihar State Universities Act, 1976 (for brevity, the Act). 7. Being dissatisfied with the said order, the State of Bihar approached the Apex Court in appeal and their Lordships by order dated 12.10.2001 appointed Honble Mr. Justice S.C. Agrawal, a retired Judge of the Supreme Court, as one man Enquiry Commission so as to identify the employees who were entitled to be absorbed and who did not deserve such absorption. The terms of reference to be answered by the one-member Commission of Justice S.C. Agrawal, as is evident from paragraph 16 of the decision rendered in State of Bihar and Others V/s. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, (2005)9 Supreme Court Cases 129 [: 2005(1) PLJR (SC)464J, which are as under: "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 universities before 30.4.1986, the cut-off date mentioned in Appendix Kha(p. 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 pp. 206-07 of SLP and other dates mentioned in Government communications in respect of four other colleges). 3. (List of colleges is at pp. 206-07 of SLP and other dates mentioned in Government communications in respect of four other colleges). 3. How many teachers and non- teaching employees seeking absorption in the constituent colleges were not appointed through selections made by the College Service Commission/University 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 the judgment. 4. How many teachers and non- teaching employees would be entitled to absorption on the basis of the Government letter datt 19.8.1986 and Appendix Kha and the agreement entered into between the university concerned and the constituent college under Section 4(1)(14) of the Bihar State Universities Act, 1976 and other orders of the Government?" 8. The Commission submitted its detailed report on 19.12.2003 to the Apex Court. The report was divided into two parts. Part-I dealt with the general aspects which related to all the colleges and the common questions that arose in all the matters involving interpretation of the provisions of the statutory enactments and the university statutes in the context of the questions that have been referred. In Part-I I, each individual college was separately dealt with in order to answer the questions that had been referred to in relation to that college. After the report was filed before the Apex Court, a large number of objections were filed, but the said objections were not entertained and rejected by the Apex Court. 9. Their Lordships in paragraph 28 have held thus: "28. After hearing the counsel appearing for various parties and considering their objections, we find no difficulty in accepting the report of the Commission so far as List (i) containing names of employees working on sanctioned posts and List (ii) containing names of employees working on posts for which recommendations were sent by the universities to the State up to the cut-off date. So far as List (iii) is concerned, it has been seriously objected to by the State Government and, in our opinion, there is justification for it. So far as List (iii) is concerned, it has been seriously objected to by the State Government and, in our opinion, there is justification for it. The teachers, who were appointed against the posts for which recommendations were sent by the universities to the State after cut-off date or for which there were no recommendations sent by the universities, can claim no right of consideration for absorption, whatever may be the reasons for alleged delay in sending recommendations. It is likely that due to fortuitous circumstances some recommendations which could have been sent by the universities to the State were not submitted before the cut-off date, nonetheless, on the basis of clear terms of the Government resolution, such appointees working on posts recommended after cut-off date can legitimately claim no right of being considered for absorption." 10. After deliberating further, the Apex Court in paragraphs 61 to 64 have opined thus: "61. So far as the order rated 18.12.1989 of the State Government directing absorption of employees against posts sanctioned and recommended by the Committee was concerned, the Commission did not go into that question stating that it was the subject-matter for decision before this Court in the present pending appeal. 62. Since the validity and authenticity of the two orders dated 1.2.1988 and 18.12.1989 were not raised before the High Court and were raised for the first time before the Commission, we decline to go into them. The joint stand taken on behalf of the State of Bihar and the State of Jharkhand before this Court, deserves to be rejected. 63. That apart, the Commission has taken note of the fact that the order dated 1.2.1988 was followed by formal Resolution No. 307 dated 8.3.1988 which was a duly authenticated order issued in the name of the Governor of Bihar and did not disturb the order dated 1.2.1988. It 1s a resolution formally taken and expressed in the name of the Government of Bihar in accordance with Article 166 of the Constitution to give effect to the order made on 1.2.1988. 64. So far as the order dated 18.12.1989 is concerned, the State being the author of that decision, merely because it is formally not expressed in the name of the Governor in terms of Article 166 of the Constitution, the State itself cannot be allowed to resile or go back on that decision. 64. So far as the order dated 18.12.1989 is concerned, the State being the author of that decision, merely because it is formally not expressed in the name of the Governor in terms of Article 166 of the Constitution, the State itself cannot be allowed to resile or go back on that decision. Mere change of the elected Government does not justify dishonouring the decisions of previous elected Government. If at all the two decisions contained in the orders dated 1.2.1988 and 18.12.1989 were not acceptable to the newly elected Government, it was open to it to withdraw or rescind the same formally. In the absence of such withdrawal or recission of the two orders dated 1.2.1988 and 18.12.1989, it is not open to the State of Bihar and State of Jharkhand (which has been created after reorganization of the State of Bihar) to contend that those decisions do not bind them." 11. After so stating, in fparagraph 73 the Apex Court proceeded to refer to earlier deliberations in brief and recorded the conclusions in seriatim. We think it apposite to reproduce paragraphs 73 and 74 for proper appreciation: 73. In view of this judgment and the directions made herein to the university to take a final decision based on the report of the Enquiry Commission, all the applications for impleadment as parties and objections filed to the enquiry report are rejected. It is for the university to take a final decision concerning the individual employees. For the same reason, no further orders are required on the interlocutory applications seeking certain directions pending the appeal and for modification of earlier orders made. Other interlocutory applications also need no further directions or orders. They all stand disposed of. Conclusions: 1. The judgment of the High Court, to the extent of the interpretation placed by it on the provisions of Section 4(1)(14) and Section 35 with the directions issued in paras 24 to 26 therein, is hereby confirmed for the reasons recorded by us above. 2. The report of the Commission of Enquiry of Honble Justice S.C. Agrawal (Retired), is accepted and all objections filed against the said report are rejected. 3. The members of the staff in various affiliated colleges identified and named in List (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the universities concerned. 4. 3. The members of the staff in various affiliated colleges identified and named in List (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the universities concerned. 4. The universities shall take a decision under Section 4(1)(14) of the Act in the matter of absorption of appointees named in List (ii) of the report of the Commission, being appointees against posts for which recommendations were sent by the universities to the State up to the cut-off date in accordance with the decision of the State Government conveyed in its letter dated 19.8.1986 followed by letters dated 25.8.1986 and 12.6.1987. In considering the question of absorption of appointees named in the List (ii) of the report of the Enquiry Commission, the universities concerned shall rely on the contents of the report of the Enquiry Commission and the present judgment of this Court. 5. The appointees mentioned in List (iii), being the appointees against posts for which recommendations were sent by the universities to the State Government after the cut-off date or those working against posts for which no recommendations were sent for approval of the State Government, have no right of being considered for absorptionwhatever may be the fortuitous circumstances or otherwise in the matter of not sending recommendations for sanction in their cases. The negative report of the Enquiry Commission with regard to List (iii) is accepted and the universities are directed to exclude all such appointees named in the List (iii) from consideration for absorption. 6. A large number of objections to the report of the Enquiry Commission filed before us by associations of employees and individuals pertain to the alleged lack of prescribed qualifications for the posts on which they were working. All those objectors have not been recommended for absorption in the report of the Enquiry Commission. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for the teaching and non-teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained. 74. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for the teaching and non-teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained. 74. The universities concerned shall now complete the process of absorption of the staff of the affiliated colleges (teaching and non-teaching) in the manner and to the extent stated above in our judgment within a period of four months from the date of receipt/production of the copy of this order." 12. At this juncture, it is appropriate to note, the Apex Court in Mahasangh Case (supra) have not expanded the scope of Section 4(1)(14) of the Act and not conferred unfettered and unbridled power on the universities in the matter of absorption. Be it noted, on a perusai of conclusions in paragraph 73 of the decision in Mahasangh Case (supra) there can be no shadow or trace of doubt that the Apex Court had accepted the report in entirety and all objections filed stood rejected. 13. After the judgment of Apex Court in Mahasangh Case (supra) several contempt petitions as also interlocutory application were filed in the disposed of appeal alleging non-compliance of the directions in *paragraphs 73 and 74 of the judgment but the Apex Court had refused to consider such individual grievance leaving them to be considered by this court by passing the following order on 3.8.2007: "This Court, in Civil Appeal No. 6098/1997 and connected matters, has passed the judgment on 10th October, 2004 and given certain directions. These appeals/petitions arose out of a common judgment passed by the High Court of Judicature at Patna on 31st January, 1997. This Court has issued certain directions in the concluding paragraphs of the judgment. In these various applications/petitions it was alleged that the directions given by this Court in the above judgment dated 10.10.2004 are not complied with by the Universities/State and the lecturers/professors are not getting the benefits which have been granted by this Court. This Court has issued certain directions in the concluding paragraphs of the judgment. In these various applications/petitions it was alleged that the directions given by this Court in the above judgment dated 10.10.2004 are not complied with by the Universities/State and the lecturers/professors are not getting the benefits which have been granted by this Court. As large number of teachers are involved in this case and several universities are parties to these proceedings, in the interest of justice, it would be just and proper that these petitions be considered by the High Court of Judicature at Patna/Jharkhand and see whether the judgment passed by this Court be complied with. The applications/contempt petitions are disposed of accordingly. The relevant papers be transmitted to the respective High Courts. As the matter is being agitated since long, the High Courts will dispose of the matter expeditiously." 14. When the matter stood thus, the employees preferred a large number of writ petitions before this court as the State Government did not fund the universities for payment of salary in respect of posts which were thought by the functionaries of the State Government not to be covered by the decision rendered in Mahasangh Case (supra) as well as Justice Agrawal Commission. 15. To clarify the position, we may advert to the factual matrix in L.P.A. No. 1304 of 2009 which arises out of CWJC No. 9025 of 2009. The said writ petition was filed on behalf of the 19 non-teaching staff of J.M.D.P.L. Mahila College, Madhubani with a prayer for direction to the authorities of the State of Bihar and the universities for payment of arrears as well as current salary alongwith interest at the rate of 18% per annum. The learned Single Judge by the order impugned dated 10.8.2009 issued a direction to pay salary of all the 19 petitioners to the universities and continue to make such payment till the date they will continue to work and their services are not terminated in accordance with la v. 16. Mr. The learned Single Judge by the order impugned dated 10.8.2009 issued a direction to pay salary of all the 19 petitioners to the universities and continue to make such payment till the date they will continue to work and their services are not terminated in accordance with la v. 16. Mr. Lalit Kishore, learned counsel appearing for the Lalit Narayan Mithila University has submitted that the university was receiving funds from the State Government only against the sanctioned and recommended posts up to 30th April, 1986, but the names of large number of employees whose names did not find place in the report of Justice Agrawal Commission, continued and as such their payment of salary with arrears from 1986 onwards could not have been directed to be given in view of the paucity of fund and the restrictions imposed by the State Government. 17. At this juncture, Mr. P.K. Shahi, learned Advocate General for the State submitted that the State Government is under sacrosanct obligation to release the funds in respect of the sanctioned posts and not in respect of the posts which are not sanctioned or not covered by the decision in Mahasangh Case (supra). It is urged by him the State Government cannot be saddled or fastened with-the liability to make payment of the salary for such employees. 18. Mr. Chitranjan Sinha, learned counsel appearing for the respondents-writ petitioners, per contra, would submit that it is not correct to say that the respondents-writ petitioners were not covered by the report of Justice Agrawal Commission inasmuch as if *paragraphs 61 to 64 of the judgment are appositely appreciated keeping in the backdrop of the communications made by the State Government on 1.2.1988 and 18.12.1989 and some more communications to that effect, it would be clear as day they were absorbed at the behest of the State Government. Be it noted, the learned counsel for the parties apprised us with regard to various details how they are covered by the report of Justice Agrawal Commission. 19. On a perusal of the pleadings and contentions arrived at the Bar, we may note with profit that the writ petitions have also been filed fundamentally on the foundation that though the teaching and non-teaching staff have been absorbed and continuing, yet they are not being paid their salary on the ground that the State Government has stopped payment. 19. On a perusal of the pleadings and contentions arrived at the Bar, we may note with profit that the writ petitions have also been filed fundamentally on the foundation that though the teaching and non-teaching staff have been absorbed and continuing, yet they are not being paid their salary on the ground that the State Government has stopped payment. Some of the universities have passed adverse orders against the teaching as well as non-teaching staff and some are in the process of passing. Submissions were advanced with immense vehemence by the learned counsel appearing for the writ petitioners that they are protected by the order of the Apex Court and a proper exercise has been done by the universities and the State Government cannot nullify the same. Combatting the same, Mr. Shahi, learned Advocate General would submit that the universities have blatantly violated the directions contained in the decision rendered in Mahasangh Case (supra) and have passed orders and thereafter when wisdom has dawn upon them they had recalled the same. Mr. Shahi also submitted that on a perusal of sub-paragraph (5) of paragraph 73 of the said decision it is indubitable and does not allow any room or allowance to any of the employees whose names have been put in List (iii) so to have any kind of benefit and their rights have been totally foreclosed. However, it is accepted by him if there is any kind of discussion, deliberations, debate or analysis, the same can only be done for the purpose of employees whose names figure in List (i) and List (ii). 20. At this juncture, Mr. Vinod Kumar Kanth, learned Senior Counsel, Mr. Ajit Kumar Sinha, learned Senior Counsel and Mr. Chitranjan Sinha, learned Senior Counsel, who have advanced their arguments on behalf of the writ petitioners, laid emphasis on *paragraphs 61 to 64 and subparagraphs (1), (4) and (6) of paragraph 73 and paragraph 74 of the decision to highlight that their rights are protected. 21. Ajit Kumar Sinha, learned Senior Counsel and Mr. Chitranjan Sinha, learned Senior Counsel, who have advanced their arguments on behalf of the writ petitioners, laid emphasis on *paragraphs 61 to 64 and subparagraphs (1), (4) and (6) of paragraph 73 and paragraph 74 of the decision to highlight that their rights are protected. 21. While the debate was on, how the scrutiny can take place regard being had to the observations of the Apex Court in *paragraphs 61 to 64 of the decision and the sub-paragraphs (1), (4) and (6) of paragraph 73, a suggestion was given that a committee should be constituted being chaired by a retired Chief Justice of the High Court so that there can be thorough scrutiny of the factual matrix so that employees should know where they stand and would not further nourish any unwarranted and unnecessary hope. On such a suggestion being given, Mr. P.K. Shahi, learned Advocate General after obtaining instructions fairly stated that he has no objection if a retired Chief Justice of the High Court is appointed as the Chairman alongwith a Member who has been the Vice-Chancellor of the University to be assisted by the Director of the Higher Education (retired) in the capacity of the Secretary to the two member Commission. 22. Mr. Vinod Kumar Kanth, learned Senior Counsel, Mr. Ajit Kumar Sinha, learned Senior Counsel, Mr. Chitranjan Sinha and many other learned counsel fairly conceded to the said suggestion. 23. Mr. Rajendra Prasad Singh, learned Senior Counsel and Mr. Awadh Bihari Ojha, learned counsel appearing for the writ petitioners did not accept the said suggestion and contended that individual cases need not be adjudicated by an independent authority headed by a retired Chief Justice of the High Court. It has been submitted by them this court while exercising the power under Article 226 of the Constitution of India is not competent to appoint a Commission and refer the controversy as it cannot clothe the same with any jurisdiction. 24. First, we shall deal with the objection raised by Mr. Rajendra Prasad Singh, learned Senior Counsel and Mr. Awadh Bihari Ojha, learned counsel appearing for the writ petitioners. The objection raised by the learned Senior Counsel, in our considered opinion, is sans substance. 25. 24. First, we shall deal with the objection raised by Mr. Rajendra Prasad Singh, learned Senior Counsel and Mr. Awadh Bihari Ojha, learned counsel appearing for the writ petitioners. The objection raised by the learned Senior Counsel, in our considered opinion, is sans substance. 25. In Ghulam Abbas V/s. State of UP., AIR 1983 Supreme Court 1268, wherein a dispute arose between two sects of Muslims relating to holding of religious ceremonies on the same land, it was referred to a committee in order to find out a permanent solution to the "perennial" conflict between two communities and restore the smooth and peaceful performance of religious ceremonies in future in an atmosphere of cordiality between them. 26. In Rural Litigation and Entitlement Kendra V/s. State of U.P., AIR 1985 Supreme Court 652, in M.C. Mehta V/s. Union of India, (1986)2 SCC 176 , and in A.P. Pollution Control Board V/s. Prof. M.V. Nayudu, (1999)2 SCC 718 , relating to cases of environment had constituted the committee. In Vishaljeet V/s. Union of India, (1990)3 SCC 318 , and in Paramjit Kaur V/s. State of Punjab, (1999)2 SCC 131 , the cases relating to human rights violation, were referred to the Committee. 27. In Onkal Lai Bajaj V/s. Union of India, AIR 2003 SC 2562 , an expert committee was constituted for finding out illegalities in the allotment of Petrol Pumps and L.P.G. Agencies. 28. A high power committee was constituted by the Apex Court in Suresh Chandra Sharma V/s. Chairman, U.P.S.E.B., (1998)2 SCC 66 , to enquire into large theft of electricity and irregularities in the functioning of the U.P. State Electricity Board. 29. In the case at hand, the learned Senior Counsel and the other counsel, barring who opposed the appointment of committee, fairly stated that there has to be a proper scrutiny keeping in view the finding recorded by the Apex Court in "paragraphs 61 to 64 and sub-paragraphs (1), (4) and (6) of paragraph 73 of Mahasangh Case (supra) and any other paragraphs which are relevant to be relied upon. 30. Be it noted, Mr. Rajendra Prasad Singh and Mr. Yugal Kishore, learned Senior Counsel submitted that the power of the universities is paramount and absolute to absorb the employees. The said submission does not deserve any acceptation. One may cite an example to founder and nullify the said proponement. 30. Be it noted, Mr. Rajendra Prasad Singh and Mr. Yugal Kishore, learned Senior Counsel submitted that the power of the universities is paramount and absolute to absorb the employees. The said submission does not deserve any acceptation. One may cite an example to founder and nullify the said proponement. The State Government has the power to sanction the post. All appointments are done with prior approval of the State Government. Assuming a university appoints one thousand persons through the Vice Chancellor or other appointing body and put forth a claim for the salary to be paid by the State Government. The question would be whether the State Government is under obligation to accede to such a claim. The categorical and unequivocal answer has to be in the negative. Thus, submission is totally bereft of any substance and is only noted to be rejected. 31. At this juncture, we may state that the learned counsel appearing for the writ petitioners echoed in one voice that none of the employees are in List (iii). Mr. P.K. Shahi, learned Advocate General and Mr. Lalit Kishore, learned counsel appearing for the Lalit Narayan Mithila University submitted that the Commission has prepared a list of recommended posts of teaching staff up to a particular cut-off date. The Commission has also made a separate list of teachers who have been found eligible for consideration regard being had to the subject, attaining of eligibility, possession of minimum qualification and various other factors. The Commission had carried out an exercise pertaining to claim of non-teaching employees of each and every college on the basis of sanctioned and recommended posts up to the cut-off date. The absorption made by the Universities have to be scrutinised in the backdrop of the decision rendered by their Lordships in Mahasangh Case (supra) as well as on the anvil of the report of the Justice Agrawal Commission as has been held by the Apex Court in *para- graphs 61 to 64 and such other relevant paragraphs. The scanning and scrutiny cannot be done by this court and, therefore, we had given the suggestion for appointment of a two member commission and we are disposed to think the same is necessitous in this case. 32. In view of the aforesaid, Shri Justice S.N. Jha, a former Chief Justice of Rajasthan High Court, and Mr. The scanning and scrutiny cannot be done by this court and, therefore, we had given the suggestion for appointment of a two member commission and we are disposed to think the same is necessitous in this case. 32. In view of the aforesaid, Shri Justice S.N. Jha, a former Chief Justice of Rajasthan High Court, and Mr. Vijay Shankar Dubey, Ex-Vice Chancellor of Nalanda Open University are appointed as two members Commission and Mr. Dhananjay Kumar, a retired Director of Higher Education is appointed as the Secretary to assist the Commission. 33. Needless to emphasise, the Commission shall permit the lawyers to assist. As undertaken by Mr. Vinod Kumar Kanth, Mr. Ajit Kumar Sinha and Mr. Chitranjan Sinha, learned Senior Counsel they are prepared to render all legal assistance to the Commission, if so desired by the Commission. 34. Mr. Shahi, learned Advocate General fairly stated that the State Government shall provide the requisite secretariat staff and remunerations after due deliberations with the Members and Secretary to the Commission. 35. Now presently to the realm of adjudication by the Commission. We are inclined to state that the Commission, as appointed by us, shall advert to the following issues: (i) The employees whose names figured in List-Ill as has been held by the Apex Court in sub-paragraph 5 of paragraph 73 shall stand excluded. (ii) The Commission shall adjudge the cases of each of the employees on the anvil of the Justice Agrawal Commission Report and the decision in Mahasangh Case (supra), especially keeping in view the paragraphs 61 to 64 and paragraphs 73 and 74. (iii) The Commission shall also look into the cases of non-teaching staff on the anvil .of the judgment passed in Mahasangh Case (supra) and the recommendations of Justice Agrawal Commission. (iv) Each of the writ petitioners shall file their requisite brief before the Commission. The Registrars of the Universities shall produce all relevant records as directed by the Commission failing which they shall be liable for contempt of this court. (v) The Commission shall carry out the exercise and finalise the matter by the end of June, 2010. 36. At this juncture, we may hasteno add though we have appointed a two nembers Commission and also ascribed he field of advertence, we would like to clarify the position by issuing further di- rections: (a) The employees who are working shall be paid their current salary. 36. At this juncture, we may hasteno add though we have appointed a two nembers Commission and also ascribed he field of advertence, we would like to clarify the position by issuing further di- rections: (a) The employees who are working shall be paid their current salary. (b) Needless to say that the present order shall only relate to the cases which have been disposed of by this order. (c) It is hereby made clear that this court has not expressed any opinion on merits with regard to any kind of statutory provisions as nothing has been referred to hereinabove. The Commission shall be totally guided by the decision of the Apex Court as well as by the report of Justice Agrawal Commission. (d) The decision of the Commission shall not be given effect to for a period of one month so that if it is against the writ petitioners they can assail the same. (e) The decision of the Commission can be challenged by either of the parties before the appropriate legal forum. (f) The decision of the Commission shall be accepted unless it is challenged in a court of law. If the report is not assailed, the writ petitioners are at liberty to file an application for execution of the same before this court. 37. The Letters Patent Appeal and the writ petitions are disposed of on the above terms.