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CASE NO.: Appeal (civil)  6098 of 1997

PETITIONER: State of Bihar & others

RESPONDENT: Bihar Rajya M.S.E.S.K.K.M.& others

DATE OF JUDGMENT: 12/10/2004

BENCH: Y. K. Sabharwal & D. M. Dharmadhikari

JUDGMENT: J U D G M E N T

With

Special Leave Petition (C) No. 18168 of 2002

Contempt Petition (C) Nos. 5, 53, 54, 83, 353, 363, 549, 82 of 2002  and 343, 377, 441 of 2004 in CA No. 6098 of 1997

With

I.A. Nos. 102-103 I.A. Nos. 105-108, 110-113, 119, 143, 146, 150, 154, 157, 158, 159,  173, 178, 183, 188-189, 195-198, 201, 203-204, 212-215, 224, 234,  236-237, 244, 247, 250, 273, 276, 278-280, 286, 293, 295, 299, 303,  318, 320, 329, 332 [Applications for impleadment].  

I.A. Nos. 114, 115, 120, 121-124, 145, 151, 160, 161, 164, 174, 177,  179, 185-187, 190-192, 199, 202, 208, 210, 211, 216, 217, 219, 221,  222-223, 225, 226-227, 229, 231, 233, 235, 238, 241-242, 243, 246,  249, 252-255, 260, 281, 288-289, 290-291, 294, 297-298, 302, 305- 307, 311-317, 322-328, 343, 346, 347-349, 351, 354-355, 363, 364,  367-371, 375, 377 [Applications for permission to file  objections].  

I.A. Nos. 116-118, 207, 262, 282, 345, 365 [Applications for  intervention]

I.A. Nos. 125-142, 144, 147, 149, 152, 155, 156, 162-163, 165, 167- 168, 170-172, 175, 179-182, 184, 193, 205, 239, 256, 258, 264-272,  277, 284-285, 292, 201, 308-309, 333, 360-361, 373, 374  [Application for directions)].   I.A. No. 353 [Application for change  of name of Advocate-on- Record]

I.A. No. 304 [For substitution]

I.A. No. 275 [For modification]  

I.A. No. 331 [For condonation of delay]

I.A. Nos. 357-358 [Applications for permission to file Addl.  Documents and exemption]

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I.A. Nos. 148, 153, 166, 169, 176, 194, 200, 206, 209, 218, 220, 228,  230, 232, 240, 245, 248, 251, 257, 259, 261, 263, 274, 283, 287,  289A, 296, 300 [Application for exemption].  

Dharmadhikari J.

              In this appeal, preferred by the State of Bihar against the  judgment dated 31.1.1997 of the High Court of Patna, the dispute is  concerning the absorption of about 4,000 employees working on  teaching and non-teaching posts in 40  colleges affiliated to various  universities which were taken over as constituent colleges in  accordance with the provisions of Bihar Universities Act, 1976.  The  aforementioned affiliated colleges were made constituent colleges of  respective universities under the Resolution of the Government of  Bihar taken in the year 1986 and implemented by the respective  universities on entering into formal agreements with the affiliated  colleges in the year 1987.  

This appeal is being decided along with the connected special  leave petition and contempt petitions.   Our decision in the present  main appeal, which we take as a lead case, would dispose of all other  connected cases and interlocutory applications.  

It is not necessary for us to go into all the facts and details as  we would be confining our decision to the legal issues raised before us.  

       The necessary factual background for the purpose of  understanding the legal issues raised before this court in these cases is  as under:-  

       The State of Bihar took a decision to convert affiliated colleges of  different universities into constituent colleges of concerned universities  in a phased manner.  

       The words ’Affiliated college’ and ’constituent college’ are defined  in section 2(c) and  2(i) of the Bihar State Universities Act, 1976 [ for  short ’the Act’]. Every institution recognized and receiving privileges of  the universities in accordance with provisions of the Act and  universities’ statutes is called ’affiliated college’. ’Constituent college’  means a teaching institution maintained and controlled by the  university itself.  

       By letter dated 19.8.1986, the State of Bihar conveyed its  decision to all the Vice-Chancellor of various universities in the State of  converting 36 affiliated colleges mentioned in the appended list as  constituent colleges.  Three other colleges were similarly decided to be  converted as constituent colleges under decision conveyed by letter  dated 03.7.1987.  One minority educational institution was also  decided to be converted as constituent college. In all thus 40 affiliated  colleges were decided to be converted into constituent colleges.  In the  decision conveyed by the State, the universities were instructed in  accordance with the provisions of Section 14 of the Act to pass a  formal resolution for taking over the assets and liabilities of the  various affiliated colleges falling within the respective universities and  enter into formal agreements with their governing bodies for the  purpose of converting them into constituent colleges.  

       In the same decision of the State Government, the universities  were directed to obtain from each of the affiliated colleges information  regarding sanctioned teaching and non-teaching posts existing on the  date of taking over of the colleges as constituent colleges and also  ascertain information with regard to proposals for creation of  additional posts in the affiliated colleges which were received from the

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universities  by 30.4.1986 and were pending with the government. The  list of teachers appointed against such additional posts pending for  approval of the State Government were also directed to be separately  prepared for the purpose of consequential action on the part of the  State Government.           Consequent upon the above decision of the government with  instructions to the universities to take various steps for identifying the  number of sanctioned posts, the proposals for additional posts  received by the universities and pending with the government for  approval, a further decision was conveyed by the State Government by  letter dated 12.6.1987.  The aforesaid subsequent decision has  created the present  controversy on the claims of various categories of  teachers and non-teaching employees for absorption in the services of  their respective converted constituent colleges.  By the subsequent  decision contained in letter dated 12.6.1987, it was directed that in  addition to the proposal for creation of additional posts pending with  State Government, the proposals for approval of posts for additional  subjects in the colleges which had been received from the universities  up to 30.4.1986 and pending with the government, be also ascertained  and necessary information in the prescribed proforma be sent to the  government to consider creation of posts, granting of affiliation to  additional subjects and absorption of teachers who were appointed  against such posts. In the resolution of the government, each  university was directed to constitute a three-member committee to  ascertain existing sanctioned teaching and non-teaching posts,  proposals pending for additional posts, proposals pending for  posts for additional subjects and list of various teachers who were  working against sanctioned and non-sanctioned posts before the cut- off date.  

       In implementation of the resolution of the government to  convert the 40 affiliated colleges into constituent colleges formal  resolutions were passed by the governing bodies of the affiliated  colleges. The three-member committees constituted by the universities  completed their investigation for submitting necessary information in  the prescribed proforma showing separately names of teachers and  non-teaching employees working against sanctioned posts and those  working against posts the creation of which was recommended by the  University for sanction of the State Government.   

       On 17.1.1987, the Government of Bihar constituted a separate  committee headed by Chairman of Inter-Universities Board to examine  the proposals received before the cut off date i.e. 30.4.1986 for  creation of posts of teachers and non-teaching staff in affiliated  colleges which were converted into constituent colleges. On the report  of the said Committee which were subsequently reconstituted on  01.2.1988, the State Government passed an order to absorb  employees working against teaching and non-teaching posts but only  on provisional basis because there were disputes with regard to the  claims for absorption of certain members of the staff in various  colleges.  

       The State Government later constituted eight-member  committee and thereafter a five-member committee to go into the  question of absorption of members of the staff in the converted  constituent colleges and ascertain number of posts duly created before  the cut-off date and which were pending with the Government for  approval or sanction.

       On the recommendations of the above mentioned two  committees, on 18.12.1989, the Government of Bihar took a formal  decision to provisionally absorb teachers against sanctioned posts and  posts which were recommended for sanction by some of the  universities.

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       It seems that with the change of elected government there was  rethinking on the decision of the earlier government to absorb  members of the staff working against additional posts for the creation  of which sanction was awaited.  Large number of employees, it was  reported, got surreptitious entry into the services of the erstwhile  affiliated colleges in connivance with the members of governing bodies  of the said colleges and tried to take advantage of  conversion of those  colleges into constituent colleges. A large number of complaints of  manipulations and fabrication of records in affiliated colleges were  received by the Government which became a subject of hot debate in  Legislative Assembly and public.  

       The State Government took a decision to set up a vigilance  enquiry into the alleged malpractices adopted by the various affiliated  colleges in inducting employees, who had not been legally appointed in  various affiliated colleges prior to cut-off date fixed in the resolution of  the Government to take over the colleges. On the setting up of the  vigilance enquiry, apprehensions arose of large scale termination and  dispensation with the services of employees of various categories of  employees working on teaching and non-teaching posts in erstwhile  affiliated colleges.  The association of the employees representing both  holders of teaching and non-teaching posts  approached the High  Court in writ petition leading to the passing of the impugned judgment  and the present appeal. In the writ petitions, the association of the  employees of the affiliated colleges claimed a writ of prohibition  restraining State and the universities from dispensing with or  terminating the appointments of nearly four thousand employees  working in different colleges under universities. They also sought a  further relief that their services be protected and not interferred with.  

       The Division Bench of the High Court after examining the record  of the case, the contents of  proceedings of the various committees  and construing the provisions of the Act, allowed the writ petitions of  the employees’ association. The High Court made the following  observations and issued following directions in the concluding part of  its judgment:-  

"In that view of the matter, the controversies have not reached  a finality as contemplated under section 4(14) of the Act. This  Court, therefore, directs the concerned universities to take steps  under sub-section (14) of section 4 of the said Act in respect of  regularization of the services of the teachers of the colleges  which have become constituent colleges of the different  universities in the fourth phase.  

Even though, the universities have been made parties including  the chancellors of the said universities, and they have been  served with notice, but nobody appeared on behalf of the  universities or on behalf of the chancellors nor any affidavit has  been filed.  

In that view of the matter, this Court directs the universities  who are parties of this proceeding to take steps in accordance  with the communication of the State Government which is at  annexure-5 of the writ application in the light of the observation  made in this judgment and in accordance with the provisions of  section 4(14) of the said Act  within a period of four months  from the date of receipt/production of a copy of this order.  

It is, however, made clear that till such steps are taken by the  respective universities, the status quo as existing on today will  continue. With the aforesaid direction this writ petition is  allowed to the extent indicated above. No order as to costs.

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       Aggrieved by the judgment and the directions made by the High  Court, the State of Bihar has preferred this appeal. From the record of  the proceedings in this appeal, it seems  this Court thought that   before the universities are directed to implement the order of the High  Court and to complete the process of absorption of employees of  various categories in the constituent colleges, an independent enquiry  is required to be made through a high power Commission so as to  identify alleged bogus appointees in various affiliated colleges who  sneaked into the services of the erstwhile affiliated colleges in  connivance with the authorities of the various Colleges and Universities    of the State.  With the above view, after adding new State of  Jharkhand as a separate party (as a result of bifurcation of State of  Bihar into two States), this Court by order dated 12.10.2001 appointed  Shri Justice S. C. Agrawal, retired Judge of this Court as one member  Enquiry Commission to go into the various controversies and disputes  with regard to the absorption of employees of the erstwhile affiliated  colleges in the services of the converted constituent colleges. The  Terms of Reference to be answered after enquiry, by the one-member  Commission of the hon’ble retired Judge read 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  pp206-207 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 57A 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  dated 19.8.1986 and Appendix ’Kha’ and the agreement  entered into between the University concerned and the  constituent college under section 4(14) of the Bihar State  University Act, 1976 and other orders of government?"

The one-member Commission completed within two years the  stupendous task of examining the records, hearing various authorities  of the State and the colleges as also individual employees. After  seeking extension of period for completing the enquiry, the  Commission has submitted a detailed report on 19.12.2003. On  submission of the report of the enquiry commission, parties were  granted time to submit their written objections, if any. Objections have

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also been filed before this  Court in large number. The Commission has  purposely, as was expected of it, avoided to express any opinion on  the legal issues involved and which are pending decision before this  Court.  Some opinions have been expressed by the Commission on the  provisions of the Act with the limited purpose of providing necessary  information to this Court, for coming to a right and just conclusion.  

In answer to ’terms of reference’ no. 1, enquiry commission has  taken different cut-off dates for different affiliated colleges with  reference to the dates on which decision was taken to convert them  into constituent colleges. Thus taking 30.4.1986 or 31.3.1987 or  01.1.1987 as dates applicable to the particular colleges, the  Commission has identified the number of sanctioned posts and the  members of the staff working against each of them.  It has given  separate report for one minority institution in which there was no  indication of cut-off date.  To answer term No. 2, the commission has  divided it into two parts and answered each separately. Identification  has been done in respect of each college which had sent proposals  with regard to creation of additional posts and which have been  submitted by concerned universities to the education  department of the State before the cut-off date.  

Separate identification has been done by the Commission  regarding proposals for creation of additional posts submitted by  each college before the cut-off date and which were pending  with the concerned universities.  On the basis of the decision of the government conveyed from  time to time by various letters to the universities, the Commission has  come to a conclusion that the decision taken was to absorb services of  members of teaching and non-teaching staff of converted constituent  colleges only against additional posts for which proposals had  been received from the universities by the State Government  by the cut-off date and were pending for consideration with the  State Government.  In the opinion of the Commission, there is no  decision of the Government to consider for absorption the staff  working against such posts, the proposal for creation of which  had been submitted by the governing bodies to the universities  before the cut-off date.  

We have perused carefully the contents of decisions of the  government taken by it from time to time which are contained in its  letters dated 19.8.1986, 25.8.1986, 30.6.1986 and 18.12.1989. At  this very stage, it would be proper for us to opine that we find no  merit in the objections submitted to this part of the report of the  commission which is based on the contents of the various resolutions  of the government on the subject of converting affiliated colleges into  constituent colleges.  We agree with the opinion of the Commission  that only such members of the staff are liable to be considered for  absorption who were working against additional posts for which  proposals had been received from the universities by the State  Government before the cut-off date. The other proposals for  creation of posts which were pending at the university level are  outside the purview of the various decisions taken by the government  to take over the 40 affiliated colleges.   The claims for absorption of  services of employees working against posts for which proposals had  not reached to the State Government before cut off date, are liable to  be rejected.

       With regard to term of reference no. 3, requiring identification of  teaching and non-teaching members of the staff, who have not been  appointed through selection made by College Service Commission/  Universities Service Commission and enquiry about their possessing or  not possessing basic qualifications prescribed for the posts in  accordance with the Act and the Statutes, the conclusions of the  commission are that the revised list submitted by the screening

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committee dated 30-1-1987 containing names of employees  recommended for absorption is not worthy of acceptance.  

In the course of its enquiry, the commission found that there  were interpolation and tampering with records including the  proceedings of governing bodies of certain colleges.  The screening  committees constituted by the universities under the resolution of the  government have gone into that aspect and have prepared a list of  members of the staff who deserved to be absorbed. According to the  opinion of the Commission after the screening committee had  completed its task, the screening committee, without assigning any  reasons, could not have submitted revised list to include some more  names or exclude others. This inclusion and exclusion can be an  omission or error in original report or it was done on other extraneous  consideration. In the opinion of the commission, the last mentioned  eventuality is not ruled out. It is in these circumstances that the  commission has recommended that revised list of the screening  committee dated 30.1.1987, deserves no consideration.

       After reading the report of the commission and considering the  objections raised to it by the various parties before us, in our opinion  the report of the Commission proposing rejection of the revised list  submitted by the screening committee on 30.1.1987, which show  inclusion or exclusion of certain names from its original list, deserves  to be accepted.  

So far as the qualifications of the various categories of holders of  teaching and non-teaching posts are concerned, the commission has  gone into contents of the various statutes prescribing the qualifications  for different teaching posts pursuant to the recommendations of  University Grants Commission which were adopted by the universities  with implementation of revised scales of pay.  

In our opinion, decision on absorption of the existing teaching  and non-teaching staff of the affiliated colleges, which are taken over  as constituent colleges, is within exclusive jurisdiction of the  universities concerned.  Decision in individual cases, with due regard  to the qualification of each employee and corresponding statute  applicable at the relevant time prescribing qualification, if any, for the  teaching and non-teaching post, is required to be taken by the  university based on the findings in the report of  Justice Agrawal  Commission and in the light of the legal position explained in this  judgment.  

In answer to the terms of reference no. 4 requiring identification  of teachers and non-teaching employees who are entitled to  absorption on the basis of government resolution dated 19.8.1986 and  the agreements entered between universities and the concerned  colleges, the commission after a thorough enquiry and probe into  records of the various colleges have given three separate lists \026 (i)  teachers appointed against the sanctioned posts have been placed in  the order of the date they became eligible for consideration; (ii) list of  teachers appointed against posts for which the recommendations were  sent by the universities to the State Government upto the cut-off  date are arranged in the order of the date they became eligible for  consideration and (iii) list of teachers appointed against posts for  which recommendations were sent by the universities to the State  of Bihar after the cut-off date and those for which no  recommendations were sent by the universities.  

       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 no. (i) containing names of  employees working on sanctioned posts and list no. (ii) containing  names of employees working on posts for which recommendations

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were sent by the universities to the State upto the cut-off date. So far  as list no. (iii) is concerned, it has been seriously objected to 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.  

The Division Bench of the High Court construed the relevant  provisions of the Act and accepted the contentions advanced on behalf  of the employees that in accordance with section 4(I)(14), the  concerned universities themselves, in respect of colleges within their  jurisdiction, are empowered to take a decision on the disputes  regarding the validity of the appointments in the affiliated colleges and  the absorption of those appointees in the constituent colleges. The  High Court was of the opinion that in view of the non-obstante clause  contained in proviso in section 4(I)(14), the constraints in section 35  of the Act which provides for grant of prior approval to the creation  and appointment to the posts in the affiliated colleges, will have no  application to absorption of existing staff of affiliated colleges taken  over by the universities on their conversion as constituent colleges.           The High Court rejected the contentions advanced on behalf of  State that it alone has jurisdiction to set up enquiries including a  vigilance enquiry for identification and considering the absorption of  only such staff of the erstwhile affiliated colleges which had been duly  appointed with the prior approval of the State Government. The High  Court allowed the writ petitions filed by the Federation of the  employees and issued a writ directing the universities, which are  impleaded as parties to the petitions, to take steps and consider  absorption of the existing staff of the affiliated colleges in accordance  with section 4(I)(14) of the Act within a period of four months from  the date of the order.  

       Learned senior counsel Shri Rakesh Dwivedi appears for the  State of Bihar as the appellant before us. He has mainly attacked the  judgment of the High Court on the ground that it placed erroneous  interpretation on the relevant provisions of the Act and has arrived at  a wrong conclusion that the respective universities alone in respect of  affiliated colleges within their  jurisdiction have to consider the merits  of the claims for absorption of various categories of members of the  staff [teaching and non-teaching] of affiliated colleges in accordance  with section 4(I)(14) of the Act.  

We take up first the legal submissions advanced on behalf of the  State as appellant on the interpretation of the relevant provisions of  the Act.  

To appreciate the rival contentions advanced on the  interpretation of the various relevant provisions of the Act, it would be  necessary to examine the scheme and make a brief survey of relevant  provisions of the Act.  

The Act has been passed in the year 1976 ’to establish and  incorporate affiliating teaching universities at Muzafferpur, Bhagalpur,  Ranchi, Gaya [Bhodgaya] and Dharbhanga in the State of Bihar’.  

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Section 2(c) defines the affiliated college thus :-   

"2(c). ’Affiliated College’ means educational institution having  received privileges of the University according to the  provisions of this Act and University statutes relating  thereto."

       Section 2(i) defines the ’constituent college’ as under :-  "2(i). ’Constituent College’ means a teaching institution  maintained or controlled by the University."  

       Section 4 enumerates various purposes and powers of the  universities and clause 14 of sub-section (I) of section 4 of the Act  which is directly under consideration for interpretation before us,  confers power on the university to assume management of any  educational institution as also take over its assets and liabilities. This  power can be exercised by the university after obtaining sanction of  the State Government.  The university can also take over by entering  into an agreement with the concerned governing body, management  of any educational institution upon receiving a proposal for the same  from the State Government. In the instant case, the proposal to take  over affiliated colleges emanated from the State Government which  was conveyed to the universities by its letter dated 19.3.1986.   Proviso to clause 14 of  Section 4(I) contains a non-obstante clause. It   confers power on the university to take decision with regard to the  appointments, special pay or allowances and irregularity, if any, found  in respect thereof in affiliated colleges of which management is  assumed by the university with its assets and liabilities.  As it is stated  in the proviso, the decision taken by the university ’shall be final and  binding’. Clause 14 of section 4(I) of the Act with its proviso needs full  reproduction :-  

"4. Purpose and powers of the University. \026 (I) There shall be  the following purposes and powers of the University.  

.............

..............

(14)    to enter into agreement with other bodies and persons for  promoting the purposes of this Act and to assume the  management of any institution under them and to take  over its assets and liabilities :

Provided that before entering into such an agreement the  University shall obtain the sanction of the State Government, or  shall do so upon receiving such a proposal  from the State  Government :

Provided further that if at any time any irregularity is found in  determination and payment of any pay, special pay or  allowances, or in any appointment in an institution taken over by  the university in its management under such an agreement,  then, notwithstanding anything to the contrary contained  in this Act, the University shall have the powers to take  decisions after reviewing it and such a decision shall be final and  binding."  

[Emphasis supplied]

       Other relevant provision is section 35 of the Act which prohibits  any affiliated college from creating a post or making appointment to  any post without prior approval of the State Government.  Sub-clause  (i) of clause (b) of section 35 has been substituted by Act No. 3 of  1990 but without any material change over the original sub-clause (i)

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of clause (b) of section 35. Sub-clause (i) of clause (b) of section 35  prior to its substitution by new clause under Act No. 3 of 1990 reads  as under :-  "35. No post for appointment shall be created without the prior  sanction of the State Government. \026 ’Notwithstanding anything  contained in this Act’, no University or any college affiliated to such  a university, except such college :-  

(a)  .....................

(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;  (ii)    ................... (iii)   ................... (iv)    ......without prior approval of the State  Government.

Sub-clause (i) of clause (b) of section 35 inserted by Act No. 3 of  1990 reads as under :-  "35. No post for appointment shall be created without the prior  sanction of the State Government. \026 Notwithstanding anything  contained in this Act, no University or any college affiliated to such a  university, except such college :-  

(a)  .....................

(b)  as is established by a religious or linguistic minority;  

(ii)    after the commencement of this Act no teaching or non- teaching post involving financial liabilities shall be  created without the prior approval of the State  Government.  

[Emphasis supplied]

A new sub-section (3) of section 35 of the Act has also been  added by Act No. 17 of 1993 which reads thus  :-  "Section 35(3). Any appointment or promotion made contrary to the  provisions of this Act, or Statutes, Rules or Regulations made  thereunder or made in irregular or unauthorized  manner shall be  invalid and shall be terminated at any time. The expenditure incurred  by the University against such appointment or promotion shall be  realized  from the officer making such appointment or promotion as a  public demand under the provisions of the Public Demand Recovery  Act, 1914.  

Under section 57, there is a provision of appointment of Bihar  State University [Constituent Colleges] Service Commission for making  selections nd recommendations for appointment to posts in constituent  colleges. Section 57A which was inserted by Act No. 68 of 1982 and  was applicable at the relevant time to affiliated colleges converted as  constituent colleges, provides for requirement of consultation with a  ’College Service Commission’ set up for affiliated colleges on dismissal,  termination, removal and retirement of employees of affiliated  colleges. Clause (c) of sub-section (2) of section 57A substituted by  Act No. 3 of 1990 is relevant only for the purpose of ascertaining the  legislative intention and as an aid to the interpretation of the  provisions regulating the absorption of staff of affiliated colleges. Sub- section (2) of section 57A requires recommendation of ’College Service  Commission’ for making appointments to teaching posts in affiliated  colleges. Thus, there are two separate commissions \026 one for

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constituent colleges to be set up under Bihar State University  [Constituent Colleges] Service Commission Act 1987 and another for  affiliated colleges to be set up under Bihar College Service Commission  Act of 1976. Section 57A with all sub-sections and clauses added to it  by various amendment Acts read as under :-  

" 1[57A]. (I) Appointment of teachers of affiliated colleges not  maintained by the State Government shall be made by the Governing  Body on the recommendation of the College Service Commission.  Dismissal, termination, removal, retirement from service or demotion  in rank of teachers of such colleges shall be done by the Governing  Body in consultation with the College Service Commission in the  manner prescribed by the Statutes :

Provided that the Governing Bodies of affiliated minority colleges  based on religion and language shall appoint, dismiss, remove or  terminate the services of teachers or take disciplinary action against  them with the approval of the College Service Commission :

Provided further that the advice of the College Service Commission  shall not be necessary in cases involving censure, stoppage of  increment or crossing of efficiency bar and suspension till investigation  of charges is completed.  

(2) Recommendation for the appointment of teachers of colleges shall  be made in accordance with the following provisions :-

(a)     College Service Commission shall give its consent/  recommendation for the appointment, dismissal or  termination etc. of teachers of affiliated colleges till the  date of their being made constituent colleges. Its  consent recommendations shall be deemed valid only till  that date.  (b)     If an affiliated college becomes a constituent college of a  university by the time the recommendation of the  college service commission is received, the Syndicate  shall take action in accordance with sub-section (4) of  section 57 of the said Act, as if the recommendation has  been made by the Commission.  2[(c)]  For the purpose of absorbing the service of the teachers  of the affiliated colleges, who were appointed by the  governing body of the college against the sanctioned  post before the Establishment of the College Service  Commission and whose services have been approved by  the University as also the services of such teachers who  were appointed by the governing body on the  recommendations of the University Service Commission  (Dissolved College Service Commission) as the case may  be, approval of the Bihar State University (Constituent  Colleges) Service Commission shall be necessary, and  such teachers shall be absorbed, in the University  Service from the date of making the college constituent  and their seniority shall be determined according to the  rules prescribed in the Statutes.  

1.   Ins. by Act, 68 of 1982. 2.   Subs. By Act 3 of 1990.     

Learned counsel appearing for State of Bihar has argued that  power to sanction additional posts and appointments against the same  in the affiliated colleges is within the exclusive jurisdiction and power  of the State under section 35 of the Act. The section opens with a  non-obstante clause meaning thereby that section 35 would have  overriding effect on clause 14 of section 4(I).  The contention  advanced is that such appointees of the affiliated colleges who were

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working against non-sanctioned posts can claim no right of absorption  after the conversion of affiliated colleges into constituent colleges. It is  pointed out that taking advantage of  the decisions dated 12.6.1987  and 18.12.1989 of the State Government by which information was  called with regard to appointees against post for which sanction was  pending either with the university or the State Government, large  number of manipulations and fabrications of the records took place in  various affiliated colleges to facilitate surreptitious entry in services of  the constituent colleges of several employees who were either  appointed after the cut off date or appointed illegally. It is also  contended that the second decision of the Government dated  18.12.1989 was taken after the change of elected government and it  had no prior approval of the Council of Ministers. The said decision of  18.12.1989, which is purported to have been issued with the approval  of the Chief Minister for and on behalf of the Cabinet, cannot be  treated to be a valid resolution of the Government.  It being not  formally taken and expressed in the name of Governor in accordance  with Article 166 of the Constitution of India, is not binding on the State  Government. On behalf of the State, therefore, it is contended that the  High Court committed a serious error in allowing the writ petition  preferred by the association of employees of erstwhile affiliated  colleges and directing the universities concerned to re-examine  regularity or otherwise of all appointments in the affiliated colleges for  absorption of the staff into converted constituent colleges in  accordance with Section 4(I)(14) of the Act.

On behalf of the teachers and employees, learned counsel who  appeared separately in the cases in which they are engaged, advanced   arguments projecting different points of view on the interpretation of  the provisions of section 4(I)(14) and section 35 of the Act.  In  substance common argument advanced is that section 4(I)(14), which  deals with powers of the university to review and take  a decision on  the regularity or otherwise of appointments of affiliated colleges, after  they are taken over by the universities as constituent colleges, as a  result of non-obstante clause contained in its proviso gives an  overriding effect to the said provision over section 35.  The State  Government, it is argued, cannot be allowed to arrogate to itself the  power of the university in the matter of absorption of members of the  staff working in the affiliated colleges against sanctioned posts or  against posts for creation of which sanction was pending with the  university or the State Government on the date of taking over the  colleges.  Learned Senior Counsel Shri Ranjit Kumar by reading the  text of clause 14 of section 4(I) and section 35 highlighted the  different language employed in the non-obstante clauses in the two  above-mentioned sections. It is pointed that in proviso to clause 14 of  section 4(I), the non-obstante clause uses the expression  ’notwithstanding anything to the contrary contained in this Act’  whereas non-obstante clause in the opening part of section 35 uses  the expression ’notwithstanding anything contained in this Act’.  Pointing out above distinction in the two expressions of non-obstante  clauses in section 4(I)(14) and section 35, the contention advanced is  on the subject of absorption of teachers of affiliated colleges which are  converted into constituent colleges, section 4(I)(14) overrides     section 35 and the directions made by the High Court, therefore,  deserve to be maintained.  

For deciding to the question of interpretation of section 4(I)(14)  and section 35 and the competing claims of  the State and the  University concerning their powers in the matter of absorption of the  staff of erstwhile affiliated colleges converted into constituent colleges,  a closer examination of the two provisions in the light of other  provisions of the Act becomes necessary. Section 35 is couched in  mandatory terms.  It prohibits any affiliated college either to create a  teaching or non-teaching post involving financial liabilities or to make  any appointment against such post without prior approval of the State

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Government. Compared with this provision, clause 14 of section 4(I)  enables the university, after obtaining sanction from the government  or on the basis of the proposals of the State Government, to take over  any ’institution’ affiliated or non-affiliated.  It is with the purpose of  enabling universities to take over any institution that it has been  conferred with a power to enter into an agreement with the Governing  and/or Managing Body of such institution.  After entering into such  agreement the university is empowered by the proviso to clause 4 to  review the appointments made in the institution which is taken over  and take a decision with regard to the regularity or otherwise of the  appointments. The decision of the university in the above regard is to  be held as ’final and binding’.  

Taking note of the difference in language employed in the non- obstante clauses in section 4(I)(14) and somewhat similar clause in  section 35, we do find that the legislature intends to give overriding  effect to one provision over the other. Proviso to clause 14 of section  4(I) uses the expression ’notwithstanding anything to the  contrary contained in this Act’ whereas opening part of section 35  uses the expression ’notwithstanding anything contained in this  Act’.

       A non-obstante clause is generally appended to a section with a  view to give the enacting part of the section, in case of conflict, an  overriding effect over the provision in the same or other Act mentioned  in the non-obstante clause.  It is equivalent to saying that inspite of  the provisions or Act mentioned in the non-obstante clause, the  provision following it will have its full operation or the provisions  embraced in the non-obstante clause will not be an impediment for the  operation of the enactment or the provision in which the non-obstante  clause occurs. [See ’Principles of Statutory Interpretation’, 9th Edition by  Justice G.P. Singh \026 Chapter V, Synopsis IV at pages 318 & 319]

When two or more laws or provisions operate in the same field  and each contains a non-obstante clause stating that its provision will  override those of any other provisions or law, stimulating and intricate  problems of interpretation arise.  In resolving such problems of  interpretation, no settled principles can be applied except to refer to  the object and purpose of each of the two provisions, containing a  non-obstante clause.  Two provisions in same Act each containing a  non-obstante clause,  requires a harmonious interpretation of the two  seemingly conflicting provisions in the same Act.  In this difficult  exercise, there are involved proper consideration of giving effect to the  object and purpose of two provisions and the language employed in  each. [See for relevant discussion in para 20 in Shri Swaran Singh & Anr. v. Shri  Kasturi Lal; (1977) 1 SCC 750]

       Normally the use of phrase by the Legislature in a statutory  provision like ’notwithstanding anything to the contrary contained in  this Act’ is equivalent to saying that the Act shall be no impediment to  the measure [See Law Lexicon words ’notwithstanding anything in this Act to the  contrary’].  Use of such expression is another way of saying that the  provision in which the non-obstante clause occurs usually would  prevail over other provisions in the Act. Thus, non-obstante clauses  are not always to be regarded as repealing clauses nor as clauses  which expressly or completely supersede any other provision of the  law, but merely as clauses which remove all obstructions which might  arise out of the provisions of any other law in the way of the operation  of the principle enacting provision to which the non-obstante clause is  attached. [See Bipathumma & Ors. v. Mariam Bibi; 1966(1) Mysore Law  Journal page 162 and at page 165]

If we examine the scheme of the Act and object of the two  provisions, they seem to operate in two different fields and there is no  conflict in them. Section 35 is expressly applicable to affiliated colleges

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and mandates that new posts giving rise to financial liabilities cannot  be created and appointments against them cannot be made without  prior approval of the State Government.  

In contrast, clause 14 of section 4(I) operates in a totally  different field that is where on grant of sanction by the government or  on receiving a proposal from the State Government, the university  enters into an agreement with any affiliated or non-affiliated institution  to take over its management with assets and liabilities. It is with  regard to such institutions which are taken over with the staff working  in them that the university has been given exclusive power to review  the appointments made in such institution and take a decision  regarding absorption of the staff with due regard to the regularity or  otherwise of their appointments. Clause 14 of section 4(I), by the  language employed in it, contemplates  taking over of even such  institutions where there may be staff employed or working without  valid sanction of the posts.  University is empowered to make a review  of such appointments and consider absorption of such employees.  The  non-obstante clause using the expression ’notwithstanding anything to  the contrary contained in this Act’ has to be construed and given effect  to with the above object and purpose evinced by express language  employed in clause 14 which enables the university not only to take  over the assets and liabilities of the institution but also the staff  appointed regularly or otherwise.   

Section 35 is applicable to all ’affiliated colleges’ but does not  cover a situation at a stage when an ’affiliated college’ is proposed to  be taken over as ’constituent college’ by the university on the sanction  or proposal of the State Government. The subject of taking over  institution affiliated or non-affiliated with assets, liabilities and staff is  regulated by provisions of clause 14 of Section 4(I) alone.  Section 35  of the Act requiring obtaining of prior approval to creation of posts or  appointments against them, is not intended to restrict the powers of  university in absorbing staff of institutions taken over in accordance  with the terms of agreement entered into with the governing bodies of  those institutions.  It is a different matter that in taking a decision for  absorbing the staff of non-affiliated or affiliated institution under an  agreement to be entered into with the Governing Bodies or  Managements of such institution, the university may bestow due  regard to the validity or otherwise of the appointments where the  institution is an affiliated college and the qualifications of persons  appointed. University may also take into consideration the provisions  of section 35 to decide whether any appointment made against posts,  without prior approval of the State Government, should be recognized  for absorption or not.

       In the course of argument on behalf of the State, it is urged that  the provision requiring prior approval for creation of posts and  appointments against them in section 35 is mandatory in nature and  no ex-post facto approval can be granted.  

On the other hand on behalf of the employees, learned counsel  has argued that looking to the other provisions of the Act particularly  those permitting absorption of existing staff regularly appointed or  otherwise,  the provision requiring ’prior approval’ in section 35 is to  be construed as merely directory meaning that it does not prohibit  State Government granting an ex-post facto approval to a post created  and appointment made against it.  

       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(I) operates in  exclusive field of  considering and taking decision on absorption of staff appointed

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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 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  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(I)(14) and section  35, although each contains a non-obstante clause. They intend to  override each other in field exclusively assigned to each.   Appointments in affiliated college in normal circumstances has to be  with prior approval of State Government in accordance with section 35  but subject matter of absorption of services of staff taken over shall be  within exclusive jurisdiction of concerned university in accordance with  Section 4(I)(14) of the Act .  

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(I)(14)  has limited operation at a stage when 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(I)(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 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(I)(14) and the latter Section is  restricted in its operation to absorption of staff of a taken over  institution by the university.                   Clause (c) to sub-section (2) of section 57A was introduced by  Act 3 of 1990 and has no retrospective application to the cases of  affiliated colleges taken over as constituent colleges prior to the year  1990. The said clause (c) to sub-section (2) of section 57A requires  further approval of Bihar State University [Constituent Colleges]

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Service Commission before absorbing the services of teachers of the  affiliated colleges converted into constituent colleges. The aforesaid  piece of subsequent legislation amending the same Act can  appropriately be taken as an aid to the interpretation of the  unamended provisions of the Act. The amended provisions of the Act is  an indication that subject of absorption of staff of taken over affiliated  colleges is treated as a subject distinct from regular recruitment to the  posts in affiliated colleges which is to be made with prior sanction or  approval  of the State Government as provided in section 35 of the  Act. Similarly, Sub-section (3) added to section 35 by Act 17 of 1993  is also prospective in application and has no adverse effect on the  absorption of the services of the teaching staff of the affiliated colleges  taken over as constituent colleges prior to 1993. Sub-section (3)  applies to normal mode of recruitment to staff [teaching or non- teaching] of affiliated colleges and is merely reiteration of the legal  position that appointments and promotion made contrary to the  provisions of the Acts, statutes, rules and regulations would be invalid  and liable to be terminated at any time. It also provides that any  expenditure incurred by the university against such illegal, irregular,  unauthorized appointments/promotions shall be realized from the  officers found responsible for committing such illegality as a public  demand under the provisions of Public Demand Recovery Act 1914.  Clause (c) of section 57A (2) introduced in the year 1990 and sub- section (3) of section 35 introduced in the year 1993 being   prospective in operation have no application to the affiliated colleges  taken over as constituent colleges with the existing staff prior to the  year 1990. Those provisions introduced subsequently in the year 1990  and 1993 are being referred to for a limited purpose to show that the   Legislature has always treated differently the normal recruitment  which has to be made  with approval of State Government to teaching  and non-teaching posts in affiliated colleges and the matter of  absorption of existing staff appointed against sanctioned or non- sanctioned posts in the affiliated colleges taken over and converted as  constituent colleges.  

The two non-obstante clauses, although slightly differently  worded one in proviso to Section 4(I)(14) and the other in Section 35  of the Act have thus, been construed harmoniously.  Our conclusion is  that they operate in two different fields \026 former to consideration of  absorption of staff of taken over colleges and the latter to affiliated  colleges when they are not under any proposal of being taken over by  the university. The two provisions being intended to operate in two  different situations and fields both have an overriding effect on each  other.  That is why the Legislature has employed a non-obstante  clause in each.

Based on the various decisions taken by the State Government  from time to time to which reference has already been made above, by  order passed on 01.2.1988, the State Government on the  recommendations of the Committee constituted by it to consider  proposals for creation of additional posts and proposals for affiliation  which had been received from the universities up to 30.4.1986,  decided to grant sanction to the proposals.  

On behalf of State of Bihar and State of Jharkhand, learned  counsel appearing have contended that the order dated 01.2.1988  granting sanction and affiliation for certain posts received by the  universities before the cut-off date on recommendation of the  Committee constituted by the State Government cannot be treated to  be a valid order of the government sanctioning posts because there  was no Cabinet approval to the same. It is submitted that the order  dated 01.2.1988 was issued by the Deputy Secretary to Government  of Bihar without any approval of the Cabinet. It has no legal efficacy.  Any valid order of the government has to be formally expressed in the  name of Governor in accordance with Article 166 of the Constitution of

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India.  

Similar objection has been raised against the order dated  18.12.1989 by which, relying on the recommendations of the  Committee constituted, the State Government directed absorption of  incumbents working on posts sanctioned and recommended before the  cut-off date.  

The validity and authenticity  of the two orders dated 01.2.1988  and 18.12.1989 of the State Government were not questioned before  the High Court in the writ petition filed by the employees of the  converted constituent colleges. Question on their validity was raised  only before the one-member Enquiry Commission of  Shri Justice S. C.  Agrawal [Retd.]. On the question of validity of the order dated  01.2.1988, the Enquiry Commission delved into the notings in the  government files and found that the Education Minister had recorded  in one of the files that the Cabinet in its meeting held on 22.6.1988  had authorized the Chief Minister to take a decision in that regard.  According to the Commission, the order dated 01.2.1988 is duly  authorized order of the State Government and this fact is evident from  the subsequent Resolution No. 307 dated 08.3.1988, which is duly  authenticated order issued in the name of the Governor of Bihar. The  subsequent Resolution formally issued in the name of Governor is a  sequel to the order dated 01.2.1988 and does not disturb it.  

So far as the order dated 18.12.1989 of the State Government  directing absorption of employees against posts sanctioned and  recommended by the Committee, the Commission did not go into that  question stating that it was subject matter for decision before this  Court in the present pending appeal.  

Since the validity and authenticity of the two orders dated  01.2.1988 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.  

That apart the Commission has taken note of the fact that the  order dated 01.2.1988 was followed by a formal Resolution No. 307  dated 08.3.1988 which was duly authenticated order issued in the  name of Governor of Bihar and did not disturb the order dated  01.2.1988. It is a resolution formally taken and expressed in the name  of Government of Bihar in accordance with Article 166 of the  Constitution of India to give effect to the order made on 01.2.1988.  

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 Governor in terms of Article 166 of the  Constitution of India, 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 01.2.1988 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 rescission of the two orders dated  01.2.1988 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.  

Special Leave Petition (C) No. 18168 of 2002          This Special leave petition arises out of an order of the Division  Bench of the High Court of Patna whereby the claim for retirement

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dues of the appellant, as member of the teaching staff of the erstwhile  affiliated colleges, which were converted into constituent colleges have  been directed to be paid to him subject to the outcome of the present  appeal pending before this Court.

       As we have held above, the University has to take a decision on  the claim of retrial dues, on the basis of the findings of the enquiry  commission. The university shall examine the question of regularity or  otherwise of the appointment of the appellant in the concerned college  and if he was found to be entitled to be absorbed, the university, shall  disburse his retrial dues.  The special leave petition of Chander Kishore  Sharma thus, stands disposed of with the above directions.

Contempt Petition (C) Nos. 5, 53, 54, 83, 353, 363, 549, 82 of  2002 and 343, 377, 441 of 2004 in CA No. 6098 of 1997

       The contempt petitions have been filed by members of the staff  individually and jointly.  Many of them were not even parties before  the High Court. They complain non-compliance of order of this Court.   After the Commission of Enquiry to be headed by Justice SC Agrawal  (retired judge of this Court) was set up, the employees were directed  to be paid their salary along with admissible allowances pending  decision of this appeal.

In the counter-affidavit filed by alleged contemnors, who are   the authorities of the State, the defence taken is that since the  question of validity of appointment in various affiliated colleges and  absorption of members of the staff was under investigation before the  enquiry commission and in this Court, it was not possible for the State  to make payment of salary to such persons whose appointment itself  was in serious doubt.  The Commission has also found several cases of  manipulations and interpolations in the records.  It is submitted that in  the above circumstances, non-disbursement of salaries to such  employees, whose appointments itself were in serious doubt, cannot  be held to be a deliberate contempt which deserves any punitive  action.   The stand taken by the contemnors seems reasonable and  justified.  Salaries could not have been disbursed to such employees  whose appointments were in serious doubt.  We find no good ground  to take any punitive action against the authorities.  The Contempt  Petitions, thus, stand disposed of.

For Impleadment/interventions :  

Large number of applications individually and collectively have  been filed by the employees objecting to the report of the Commission  to the extent it adversely affects their status, right of absorption and  payment of salaries to them.  By different applications, they have  sought their joinder as parties to the appeals before us and filed  objections to the enquiry report. We have considered all the written  objections and submissions filed in support thereof. Most of the written  objections by individual employees preferred independently or through  their associations are mainly based on the reports of the Committees  constituted by State Government and the recommendations for  absorption made by the concerned universities.  

We have already mentioned above that this Court decided to set  up one-member Enquiry Commission of retired Judge of this Court  only because serious doubts were raised on the authenticity of the  records of the affiliated colleges converted into constituent colleges as  also the proceedings of the Committee and the recommendations of  the universities. The Enquiry Commission set up by this Court had  granted opportunity to all affected parties to place their cases before  it. Some of the parties and individuals availed the opportunity before  the Commission.

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Most of the objections to the report of the Enquiry Commission  are based on the reports of the various committees set up by the State  and the recommendations of the universities. Thereafter, we set up an  Enquiry Commission which has given its report. It is, therefore, not  possible to grant any relief or directions in favour of the objectors on  the basis of the reports of the various committees and  recommendations of the universities. We have now directed the  universities concerned, in respect of colleges within their respective  jurisdiction to issue formal orders of absorption in the constituent  colleges on the basis of the report of the Enquiry Commission and in  the light of our judgment.  

In some of the written objections, certain mistakes of names and  descriptions of employees in the Report of the Commission have been  pointed out. Such mistakes in the Report of the Commission may be  brought by the affected employees to the notice of the universities  concerned. It would be open to the universities, for the above limited  purpose to undertake enquiry and verification of the records to rectify  and rely upon the report of the Commission with the necessary  corrections only with regard to the names and descriptions of the  employees.   

       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(I)(14)  and  section 35 with the directions issued in paragraphs 24 to 26  therein, is hereby confirmed for the reasons recorded by us  above.

2.      The report of the commission of enquiry of Hon. 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 no. (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(I)(14) of  the Act in the matter  of absorption of appointees named in list  no. (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 25.08.1986 and  12.06.1987.  

In considering the question of absorption of appointees named in  list no. (ii) of the report of the Enquiry Commission, the  universities concerned shall rely on the contents of the report of

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the enquiry commission and the present judgment of this Court.  

5.      The appointees mentioned in list no. (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 absorption - whatever maybe 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 no. (iii) is accepted  and the universities are directed to exclude all such appointees  named in list no. (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 are 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 above.    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.  

The arduous work of scrutinizing large number of files, hearing  large number of individual employees and their associations as also  concerned authorities  and preparing and submitting a detailed report  to facilitate this Court in deciding these cases, was completed by Mr.  Justice S. C. Agrawal [retired] as one-member Enquiry Commission  within a reasonable period. Before parting with this case, we thankfully  acknowledge the valuable services of the Commission.

       In the result, the appeal, the connected special leave petition  and contempt petitions, all are dismissed. The applications for  impleadment as parties, applications seeking interventions and other  applications raising objections to the report of the Enquiry Commission  and seeking directions, all stand rejected.  

       In the circumstances, we leave the parties to bear their own  costs incurred in this Court.