JUDGMENT : S.N. Pathak, J. Heard the parties. Prayers made 2. Petitioner has approached this Court with a prayer for quashing the order dated 7th February, 2018 (Annexure-17) passed by the respondent-State authorities, whereby the pay fixation of the petitioner has been rejected. Further prayer has been made for Quashing of the part of the notification dated 7th March, 2009 (Annexure-24) whereby the services of the petitioner has been absorbed at KCB College even when the petitioner had admittedly been working at Mandar College, Mandar. Petitioner has also prayed for direction upon the respondents to hold and declare that the absorption of Mr. B.K. Sahu, the respondent no.6 against ‘R-1’ post in the department of Mathematics at the Mandar College, Mandar is bad in law and further absorb the services of the petitioner against the ‘R-1’ posts in the Department of Mathematics at Mandar College, Mandar with effect from the date of joining of the petitioner and grant all consequential benefits of pay-fixation under 5th and 6th PRC, which have been made applicable w.e.f. 01.01.1996 and 01.01.2006 respectively. Factual Matrix 3. Sans of unnecessary details, the petitioner having fulfilled the requisite eligibility criteria for the post of Lecturer, was appointed to the post of Lecturer at Mandar College, Mandar in the Department of Mathematics vide appointment order dated 29th August, 1985 after following due process of law. Pursuant to the aforesaid order of appointment, the petitioner gave his joining on the very same day. Thereafter, on 19th August, 1986, a decision was taken by the unified State of Bihar to take over all the affiliated college and make them as a constituent college. In terms of the order to take over of the colleges, a list of teaching and non-teaching staff were prepared by the State authorities vide letter no. 38(c) dated 1st February, 1988, which have been annexed at Annexure-4 to the writ petition, wherein the name of the petitioner finds figure as working in the Department of Mathematics at Mandar College, Mandar. Similarly in pursuance of another inquiry, a report was prepared vide letter no.181(c), wherein also the name of the petitioner finds place as working against the post of Lecturer at Mandar College, Mandar in the Department of Mathematics. 4. Similarly in pursuance of another inquiry, a report was prepared vide letter no.181(c), wherein also the name of the petitioner finds place as working against the post of Lecturer at Mandar College, Mandar in the Department of Mathematics. 4. It is further stated that there were several disputes in regards to the persons working and the number of sanctioned posts available at different colleges which were being taken over. It is the further submitted that entire exercise of taking over of colleges was termed as fourth phase constituent colleges or newly taken over constituent colleges (NCC). Owing to the issue of sanctioned post vis-a-vis persons working against those posts, various writ applications were filed before the Hon’ble High Court of Patna. In the case of the State of Bihar vs. Bihar Rajya M.S.E.S.K.K. Mahasangh registered as C.W.J.C. No. 4021 of 1995 which was finally challenged at Hon’ble Supreme Court in SLP No. 6098 1997, the Hon’ble Supreme Court vide its order dated 12.10.2001, had been pleased to appoint a one man Enquiry Commission, namely, Sri Justice (Retd.) S.C. Agrawal Commission in order to decide the entire controversies and disputes. The terms of reference which was required to be answered by the said one man commission was as under: i. How many sanctioned posts of teachers and non-teaching employees were there in the forty colleges which were converted into constituent colleges pursuant to the sanctioned letter dated 19th August, 1986 of the State of Bihar ? ii. How many proposals with regards to creation of posts for teachers and non-teaching employees had been submitted to the Educational Department of the State of Bihar or University before 30th April, 1986, the cut off dated mentioned in Appendix Kha (Page 208 of SLP) with respect to 36 colleges converted into the constituent colleges as per government letter dated 19th August, 1986? iii. How many teachers and non-teaching employees seeking absorption in the constituent colleges were not appointed through the selection made by the College Service Commission/University Service Commission and whether they possess the basic qualification prescribed by the Act and the Statute? This exercise will be without prejudice to the contention of the respondents that Section 57(A) is not applicable in such selections as has been held by the High Court in the judgment. iv. This exercise will be without prejudice to the contention of the respondents that Section 57(A) is not applicable in such selections as has been held by the High Court in the judgment. iv. How many teachers and non-teaching employees would be entitled to absorption on the basis of the government letter dated 19th August, 1986 and Appendix Kha and the agreement entered into between the University concerned and the constituent colleges under Section 4(1)(14) of the State University Act, 1976 and other orders of the government ? 5. After enquiring the matter, a detailed report was submitted by Justice (Retd.) S.C. Agrawal Commission in which one sanctioned post and one recommended post, (recommended prior to the cut-off date) was identified by the said commission in Mandar College, Mandar in the Department of Mathematics. The sanctioned posts were shown as ‘S’ posts and recommended posts, (which were recommended prior to the cut-off date) were shown as ‘R-1’ posts. The petitioner was appointed in terms of 1983 statute and the eligibility criteria mentioned therein was duly fulfilled by him. The eligibility criteria as provided under the 1983 statute has been quoted by the Justice Sri S.C. Agrawal Commission’s report. 6. It is further case of the petitioner that with respect to respondent no. 7, Ravi Bhushan Amar, a document has been annexed as Annexure-7 (page 73) which shows that Sri Ravi Bhushan Amar was working at a different places i.e. at government middle school and was also getting salary from the said school, as such, it is clear that Sri Ravi Bhushan Amar was not working in the college in question in the Department of Mathematics. Further, it has been admitted by the respondent no.7 as well as the University that Sri Ravi Bhushan Amar has never been absorbed. 7. It is the further case of the petitioner that he was absorbed w.e.f. 29th November, 1986 and Mr. Bal Kishore Sahu (the respondent no.6) was absorbed w.e.f. 9th May, 1988 owing to the fact that Mr. Bal Kishore Sahu was not eligible at the time of appointment and had attained eligibility later on. This fact comes out from the letter dated 22nd August, 2009 contained at Annexure-9 to the writ application whereby the recommendation for pay fixation was made by the Registrar for the petitioner as well as the respondent no.6. Bal Kishore Sahu was not eligible at the time of appointment and had attained eligibility later on. This fact comes out from the letter dated 22nd August, 2009 contained at Annexure-9 to the writ application whereby the recommendation for pay fixation was made by the Registrar for the petitioner as well as the respondent no.6. The name of the respondent no.6 figures at Page No.82 at Sl. No.15 wherein under the column of admissible date of absorption, it has been mentioned as 9th May, 1988. Similarly, the name of the petitioner finds figure at Page No.84 to the said annexure at Sl. No.18, wherein date of absorption of the petitioner has been shown as 29th November, 1986. 8. It is further stated that with regards to the eligibility, the case of the respondent no. 6 is to be taken note of in terms of the 1978 statute as he was appointed on 03.03.1983. In terms of the 1983 statute as well as 1978 statute, a person is required to hold good academic record. The marks obtained by the respondent no. 6 has been brought on record by the respondent no. 6 in the counter affidavit, wherein the marks of Mr. Bal Kishore Sahu (B.K. Sahu), prior to the Master degree is 42.5% at Intermediate level and 39.5% at B.Sc. level averaging to 41%. As such, the respondent no.6 was not having the eligibility criteria in terms of the statute on the date of appointment i.e. good academic record which required 50.55% in 2 exams prior to master degree. On the other hand, the petitioner has secured 59% marks in Intermediate and at B.Sc. level it is 48%. The average of these two marks comes to 53.5% which duly makes out that petitioner was having good academic record as per statute of 1978 and 1983. It is further submitted that in the year 1988, relaxation in eligibility criteria was given vide Resolution dated 4th April, 1988 in light of which the respondent no.6 could attain the required eligibility criteria resulting into his absorption w.e.f 09.05.1988. 9. It is stated that Sri Justice S.B. Sinha Commission vide order dated 18th March, 2015, rejected the intervention application filed by the petitioner and also rejected the claim of the respondent no.7. 9. It is stated that Sri Justice S.B. Sinha Commission vide order dated 18th March, 2015, rejected the intervention application filed by the petitioner and also rejected the claim of the respondent no.7. In light of the aforesaid facts, the petitioner moved a writ application before this Hon’ble Jharkhand High Court bearing caption W.P.(S) No.5231 of 2013 which was disposed of vide order dated 11th May, 2016 directing the respondents to take a decision in regards to fixation of salary as per 5th and 6th PRC as recommended by the University. However, when no order was passed, the petitioner preferred contempt application following which the impugned order dated 7th February, 2018 contained in memo no. 279 (Annexure-17 Pages 123 to 125) has been passed by the respondents rejecting the claim of the petitioner on the following grounds : a. Petitioner has been absorbed against the ‘R-1’ posts in K.C.B. College, Bedo instead of Mandar College, Mandar. b. As because the claim of the petitioner was rejected by Sri Justice S.B. Sinha Commission. c. Adjustment of teaching staff in one college against existing vacancy of another college has been rejected by Justice Sri S.B. Sinha Commission. Hence, the petitioner has preferred the instant writ petition. Submissions of learned counsel for the petitioner 10. Mr. Ajit Kumar, learned senior counsel assisted by Mr. Shresth Gautam, learned counsel appearing for the petitioner assiduously argues that Justice Sri S.C. Agrawal Commission had given a categorical report to the effect that the persons are required to be absorbed against the recommendation on ‘R-1’ post, who attained the eligibility first and the persons who attain the eligibility later on is required to be absorbed later on. It has been further argued that the University in its counter-affidavit itself has clarified that the case of the petitioner is that he was having the eligibility at the time of appointment, whereas the respondent no.6 was not having the eligibility at the time of appointment and, as such, he is required to be absorbed against the ‘R-1’ post. It has been further argued that the University in its counter-affidavit itself has clarified that the case of the petitioner is that he was having the eligibility at the time of appointment, whereas the respondent no.6 was not having the eligibility at the time of appointment and, as such, he is required to be absorbed against the ‘R-1’ post. Learned senior counsel further argues that similar issue fell for consideration before Justice Sri S.B. Sinha Commission in the case of Bagesh Chandra Verma, who was also appointed at a later date but since the person appointed prior to him was not having the eligibility, a claim was put forward by said Bagesh Chandra Verma which was decided by the Commission in favour of Bagesh Chandra Verma and in terms of the said order of Justice Sri S.B. Sinha Commission, a final order of absorption, fixing the date of absorption of Sri Bagesh Chandra Verma against the ‘R-1’ post was passed which is at Annexure-18 to the writ petition. Learned senior counsel further argues that the said Bagesh Chandra Verma was also absorbed at a different college than where he was discharging his duties. He was working at Mandar College, Mandar and he was absorbed at KCB College, i.e. same as that of the petitioner and as such, the case of the present petitioner also stands on similar footing. 11. Learned senior counsel further argues that even for argument sake leaving aside the issue of ‘R-1’ post, once an employee has been absorbed by the employer i.e., the University, the State Government has no locus and no role to play in the matters of absorption. This issue is no more res integra as the Hon’ble Supreme Court in a judgment reported in (2005) 9 SCC 123 specifically paragraph 53 and 54 has held that once absorption orders have been passed under Section 4(1)(14), the State Government cannot exercise powers under Section 35 of the University Act. This issue is no more res integra as the Hon’ble Supreme Court in a judgment reported in (2005) 9 SCC 123 specifically paragraph 53 and 54 has held that once absorption orders have been passed under Section 4(1)(14), the State Government cannot exercise powers under Section 35 of the University Act. Learned senior counsel further argues that in light of the aforesaid fact, even for the time being, if the issue of absorption against ‘R-1’ post is not taken note of, even then once recommendation has been made by the University vide Annexure-9 at Page 79 for pay fixation of the petitioner as well as the respondent nos.6, it is incumbent upon the State to give effect to the aforesaid pay fixation done vis-a-vis persons who have been absorbed i.e., the petitioner and the respondent no.6. 12. To buttress his arguments, learned senior counsel for the petitioner places heavy reliance on the following judgments: (I) State of Bihar & Ors. Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors. [ (2005) 9 SCC 129 ]; (II) Smt. Kanti Mishra Vs. the State of Jharkhand & Ors. [2017 SCC Online Jhar. 2575] Submissions of learned counsel for the Respondents 13. Per contra counter-affidavit has been filed. Mr. Apoorva Singh, learned counsel appearing for the respondent-State submits that as per Annexure-IA & IIA of the report of Agrawal Commission there are only one sanctioned post and one recommended post in the Department of Mathematics in Mandar Coller, Mandar in which the petitioner claims himself to be appointed. However, on the aforesaid two posts, four persons namely, P.K. Singh, Bal Kishore Sahu, Ravi Bhushan Amar and Uday Kumar were found to be working. It has been further argued that as per letter No. B/1406/18 dated 05.12.2018 sent by the Ranchi University, Ranchi ,on two posts in the Department of Mathematics, Sri Prabhat Kumar has been absorbed on the 1st sanctioned post whereas, Sri Bal Kishore Sahu has been absorbed on 2nd recommended post. In the matter of Ravi Bhushan Amar, Justice (Retd.) S.B. Sinha Commission has observed that there is only one sanctioned post and one recommended post of teacher available in the concerned College in the Department of Mathematics. The Hon’ble Commission vide order passed on 18.03.2005 has observed that: “In that view of the matter the Intervention Application filed on behalf of Shri Uday Kumar need not to be entertained. The Hon’ble Commission vide order passed on 18.03.2005 has observed that: “In that view of the matter the Intervention Application filed on behalf of Shri Uday Kumar need not to be entertained. It is dismissed accordingly. So far the merits of Claim Petitions are concerned, Mr. Rajiv Singh categorically states that the two posts were shown, one sanctioned and one recommended, which are being occupied by Shri Prabhat Kumar Saha and Shri V.K. Sahu.” 14. Learned counsel submits that, in absence of 3rd post in the Department of Mathematics in Mandar College, Mandar, the claim of petitioner cannot be entertained by the Department. Learned counsel further argues that the role of the Department starts after the absorption of the petitioner by the University. The Department has not received any absorption order with respect to the petitioner at Mandar College, Mandar. In view of the aforesaid facts and circumstances, the writ application is not maintainable and the same is liable to be dismissed. 15. Mr. Anoop Kr. Mehta, learned counsel appearing for the respondent-University submits that the respondent-University has reckoned the date of absorption of Sri B.K. Sahu (respondent No. 6) as 09.05.1988 while that of the petitioner as 29.11.1986 (as reflected from pages 82-84 of the writ petition) and therefore, the petitioner is senior to respondent No. 6. Learned counsel further argues that the respondent No. 6 was not found to be possessing the requisite qualifications on the date of his appointment and accordingly, his date of eligibility for absorption has been shifted to 09.05.1988. On the other hand, the petitioner’s date of absorption has been found to be 29.11.1986 and therefore, by operation of law, he has become senior to the respondent No. 6. It has been further argued that petitioner was appointed as Lecturer in the Department of Mathematics at Mandar College, Mandar and continued to work in the said college, even though his name was notified as absorbed in KCB College, Bero. The records also reveal that the petitioner has drawn his salary from Mandar College, Mandar and not from KCB College, Bero. 16. Mr. The records also reveal that the petitioner has drawn his salary from Mandar College, Mandar and not from KCB College, Bero. 16. Mr. J.P. Jha, learned senior counsel appearing for the respondent No. 6 submits that petitioner has no claim for absorption on the R-1 post in the department of Mathematics in Mandar College, Mandar since the respondent No. 6 was absorbed against the said post after being recommended by the Hon’ble Agarwal Commission as well as by the Hon’ble Justice S.B. Sinha Commission and only after approval from the Syndicate, the respondent No. 6 was absorbed and 5th revised UGC Pay-Scale was sanctioned and paid to him after approval by the Cabinet. Learned senior counsel further argues that after the respondent No. 6 has superannuated on 31.08.2017, no claim for R-1 post in Mathematics Department in Mandar College, Mandar can be made now as the same is utter violation of Article 21 of the Constitution of India and gross violation of principle of natural justice. Learned senior counsel further argues that on the stale claim made by the petitioner, the retiral dues and pension of the respondent No. 6 has been withheld causing grave injustice and financial loss to the respondent No. 6. Learned senior counsel accordingly submits that for the aforesaid facts and reasons, the writ petition is fit to be dismissed. Findings of the Court 17. Having gone through the rival submission of the parties and from perusal of the documents brought on record the following facts come to fore: I) The petitioner was absorbed in the year 2005 w.e.f. 09.05.1988, which was later on modified vide notification dated 22.08.2009 to have been absorbed w.e.f. 29.11.1986. II) The services of respondent No. 6, Mr. B.K. Sahu was absorbed vide notification dated 09.06.2005 w.e.f. 09.05.1992. III) The petitioner is still working whereas respondent No. 6 has superannuated on 31.08.2017. IV) The University has recognized the appointment as well as absorption of respondent No. 6 on the post of Lecturer in Department of Mathematics in Mandar College where he continued to work as Assistant Professor till the date of his superannuation which is evident from the notification dated 30.11.2016, issued by the order of the Vice Chancellor. IV) The University has recognized the appointment as well as absorption of respondent No. 6 on the post of Lecturer in Department of Mathematics in Mandar College where he continued to work as Assistant Professor till the date of his superannuation which is evident from the notification dated 30.11.2016, issued by the order of the Vice Chancellor. V) From the counter-affidavit it is also admitted that the respondent No. 6 was getting salary all along his service tenure till his date of superannuation but the retiral benefits have not yet been paid due to the objection of the present petitioner. VI) It has also been admitted by the respondent-University that both the petitioner as well as respondent No. 6 have been adjusted and were allowed to work as Assistant Professor after their absorption. Neither their appointments nor their absorptions have been challenged at any point of time. It is only after superannuation of respondent No. 6, objection regarding his entitlement and absorption on the sanctioned post has been raised. 18. Before delving deep into the matter, it would be apposite to examine the powers of State Government under Section 35 of the Universities Act and that of the University under Section 4(1)(14) of the Universities Act. 19. The said issue fell for consideration before the Hon’ble Apex Court in State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh, reported in (2005) 9 SCC 129 and the Hon’ble Court while deciding the issue has clearly observed as under: “53. We do not consider it necessary to express any final opinion as to whether the provision of “prior approval” contained in Section 35 for creation of posts and appointments in affiliated college is mandatory or directory. For the purpose of this batch of cases, it is sufficient for us to opine that clause (14) of Section 4(1) operates in an exclusive field of considering and taking decision on absorption of staff appointed regularly or otherwise in an institution including an affiliated or non-affiliated college which is to be taken over as “constituent college” under a formal agreement reached between the university and the Governing Body of that college. In the process of taking over of management, assets, liabilities and staff of the affiliated or non-affiliated college, the university has to take a decision with regard to absorption of existing staff. In the process of taking over of management, assets, liabilities and staff of the affiliated or non-affiliated college, the university has to take a decision with regard to absorption of existing staff. In this process of consideration for absorption, it may have regard to the provisions of the Act including observance of the provisions of Section 35 of the Act. In the matter of absorbing staff of colleges taken over, any alleged non-observance of alleged mandatory provision of obtaining prior approval under Section 35, before creation of posts and appointments to them, would not be an impediment in the way of the university to permit absorption of an employee working against a post. It may for the above purpose seek ex post facto approval of the State Government. The decision of the Government contained in its communication dated 18-12-1989 itself allows consideration of absorption of the members of the staff working against post for which sanction for creation of posts was pending with the State Government on recommendations of the university. We do not find any conflict in the provisions of Section 4(1)(14) and Section 35, although each contains a non obstante clause. They intend to override each other in the field exclusively assigned to each. Appointments in affiliated college in normal circumstances have to be with prior approval of the State Government in accordance with Section 35 but subject-matter of absorption of services of staff taken over shall be within exclusive jurisdiction of the university concerned in accordance with Section 4(1)(14) of the Act. 54. The two non obstante clauses with slightly different wordings have thus to be harmoniously construed so as to fulfil the object of each one of them. On examination of the scheme of the Act and the relevant provisions, we find that Section 35, requiring prior sanction of the State Government for creation of posts and appointments, applies to all affiliated colleges. Compared with Section 35, Section 4(1)(14) has limited operation at a stage when a university enters into an agreement with the management or Governing Bodies of private institutions affiliated or non-affiliated for taking over its management, assets, liabilities and staff. Compared with Section 35, Section 4(1)(14) has limited operation at a stage when a university enters into an agreement with the management or Governing Bodies of private institutions affiliated or non-affiliated for taking over its management, assets, liabilities and staff. The effect of non obstante clause in Section 4(1)(14) is that the matter of absorption of staff of such institution/college proposed to be taken over, would be within the sole power and jurisdiction of the university concerned within whose jurisdiction the affiliated college or institution falls. On the matter of absorption of staff of taken-over institutions, Section 35 requiring prior sanction or approval of the State Government for creation of posts and appointment, would not be a constraint on the power of the university. It is a different thing that the university in considering absorption of the staff of institution taken over may give due consideration to the legality/regularity or otherwise of a particular appointment but it would not be inhibited by the absence of prior sanction or approval of the State as contemplated in Section 35 of the Act. This is how the two non obstante clauses have to be harmoniously construed and applied as giving overriding effect to each and restrict their operation within exclusive field assigned to each. In the matter of creation of posts and appointments in affiliated colleges in normal circumstances, requirement of prior sanction or approval of the State Government, as contained in Section 35, is not dispensed with because of the contrary provision contained in Section 4(1)(14) and the latter section is restricted in its operation to absorption of staff of a taken-over institution by the university.” 20. In the instant case, since respondent No. 6 has already retired, his appointment and absorption cannot be a matter of challenge as it is fault of the University and not of petitioner and respondent No. 6 as it is the University who has power and privilege to adjust them. Since both the petitioner and respondent No. 6 were getting salary and other benefits since long and as per the averment made by petitioner that the salary is the outlook of the University, then as per settled law respondent No. 6 is entitled for pay-fixation and retiral benefits in the revised pay-scale and the same cannot be denied only on the ground that his initial appointment was not in accordance with law. The same cannot be questioned after retirement of respondent No. 6. 21. It is the University who has allowed the petitioner as well as respondent No. 6 to continue on their respective posts and as such, they are entitled for all the benefits for which they are entitled for. 22. As far as petitioner is concerned since he is already working and pay-fixation has been ordered to be done by this Court, he is also entitled for pay-fixation and salary as per the 5th and 6th PRC. 23. Under the aforesaid facts and circumstances, the respondent-University is directed to grant the retiral benefits to respondent No. 6 by revising the pay-scale as per 5th, 6th and 7th PRC and also revise the pay-scale of petitioner under the recommendation of 5th, 6th and 7th PRC and extend the consequential benefits accrued to them, in accordance with law. 24. Let the entire exercise be completed within a period of twelve weeks from the date of receipt/ production of a copy of this order. 25. Resultantly, the writ petition stands allowed.