TaxTMI 
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2004 (10) TMI 579
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....ch 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 men....
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....vernment, 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 G....
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....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 ....
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....ted 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 exerc....
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....ubmitted 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 o....
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.... 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 ....
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.... 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 fi....
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.... 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. (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 befo....
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....us :- "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 a....
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....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 wo....
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....d 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 m....
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....ent 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 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....
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....oyed 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 ot....
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..... 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 p....
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....d 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 provision....
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....t 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 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 i....
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....rder of the Division Bench of the High Court of Patna whereby the claim for retirement 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 Agr....
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....cted parties to place their cases before it. Some of the parties and individuals availed the opportunity before the Commission. 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 ....