Aftab Alam, J.
1. This case is the sequel to an earlier Full Bench decision of this Court in Braj Kishore Singh v. State of Bihar 1997 (1) BLJR 652 : 1997 (1) P.L.J.R. 509. The petitioners' contend that the State Government in refusing to pay them the arrears of their salary for the period prior to their regularisation in service pursuant to the earlier Full Bench decision was trying to deny them what was already their due in terms of the earlier decision. The State Government on the other hand maintains that it fully complied with the earlier decision of this Court by giving approval for the petitioners' regularisation in service and by releasing the necessary funds to the University for payment of the petitioners' salary from the date of their regularisation in service.
2. There are 20 petitioners in this writ petition. They earlier came to this Court, seeking certain reliefs, in
C.W.J.C. No. 497 of 1984 which was dismissed by a learned Single Judge of this Court by judgment dated 6-4-1994. Against the judgment of the writ Court the petitioners preferred an appeal in L.P.A. No. 36 of 1994. The appeal finally came to be heard before a Full Bench which by judgment and order dated 19-2-1997 allowed the appeal, set aside the judgment of the writ Court and allowed the writ petition. The Full Bench noted the relevant facts of the case in Paragraph 2 of its judgment which is as follows:
2. Jagdam College, Chapra (hereinafter called 'the College') was an affiliated College of Bihar University (now known as Babasaheb Bhimrao Ambedkar University). On Feburary 7, 1.976, it was made a constituent unit of the said University with effect from April 1,1975. The College is now a constituent unit of Jai
Prakash University. According to the appellants, prior to January 17, 1973 20 sanctioned posts of Class IV were in existence. On Janurary 17, 1973, 9 Class III posts and 13 Class IV posts were created. Thus, 29 Class 111 posts and 56 Class IV posts were available in the College. No November 29, 1977, the Bihar University constituted a Selection Committee comprising of the Principal and three Senior Professors, for appointment against vacant Class IIII/IV posts. In August 1978, advertisement was published. In March 1979, appointments were made including those of the appellants. According to them, prior to March, 1979,21 (out of 29) Class III posts and 43 (out of 56) Class IV posts had already been filled and, thus, 9 Class III posts and 13 Class IV posts were vacant against which the aforesaid appointments were made. On March 2,1981, the University approved the appointments and by letter dated September 14, 1981 forwarded the same to the State Government for its approval. The appellants started getting salary. On June 8,1983, however, the State Government refused to approve their appointments on the ground that appointments were beyond the staffing pattern.
3. While allowing the appeal it was held and directed as follows:
The appellants are accordingly entitled to have their services regularised against the posts within the staffing pattern as applicable to the college.
Against the judgment of this Court in L.P.A. No. 36 of 1994, the State Government preferred an appeal before the Supreme Court which was dismissed in limine by order dated 11 -8-1997 passed in S.L.P. (Civil) No. 13585 of 1997. The State Government than filed I.A. No. 3 in that S.L.P. making a prayer that the order of dismissal of the S.L.P. may be modified to the extent that 'it may not be treated as precedent for other cases and question of law may be kept open'. The I.A. petition was disposed of by the following order passed on 1-12-1997:
We do no express any opinion on the question of law raised in this matter.
4. In the meanwhile, the petitioners had filed M.J.C. No. 1970 of 1997 for initiating a contempt proceeding against the authorities concerned for not complying with the directions given by the Court in their appeal. During the pendency of the contempt petition, the Additional Secretary to the Government in the department of Higher Education by letter dated 20-5-1995 (Annexure-1) intimated the Vice-Chancellor, Jai Prakash University, Chapra regarding the Government decision to grant approval for regularisation of the petitioners' service against different Class III and Class IV posts indicated against their names. In this letter, it was further indicated that the order may be issued for payment of salary to Braj Kishore Singh, Peon (Petitioner No. 20) only for the period 21 -3-1979 to September, 1983. According to the petitioners, Braj Kishore Singh (Petitioner No. 20) was adjusted against a vacant sanctioned post in the college and he was duly getting his salary from October 1983 and it was in that context that he was directed to be paid his salary only for the aforesaid period. This, according to the petitioners, was plainly indicative that the Order 19 petitioners were to receive their arrears of salary from 21 -3-1979 right up to 20-4-1998 the date of their regularisation in service.
5. After the issuance of the letter, dated 20-5-1998 the State Government released funds under non-plan head to different Universities, including the Jai Prakash University. The funds were released under letter, dated 23-5-1998 in paragraph 15 of which the Registrar, J.P. University was directed to pay the petitioners their arrears of salary as first charge on the released amount. The University than issued letter dated 9-7-1998 (Annexure-3) making allotment of Rs. 63, 94, 129, 01 paise to the petitioner's college for payment of their arrears of salary.
6. Even after allotment of the necessary funds to the college no payments were made to the petitioners and then it transpired in the contempt proceedings pending before the Court that the Additional Secretary in the department of Higher Education, Government of Bihar had issued a fax message, asking the Vice-Chancellor not to make any payments to the petitioners without taking prior approval of the State Government and on that basis the Vice-Chancellor had given verbal direction to the Principal of the College to withhold payments to the petitioners. At that stage the Court directed for the personal appearance of the authorities concerned in the University and the State Government. On 20-7-1998 the authorities appeared before the Court in person. On that date a show cause was filed on behalf of the Vice-Chancellor stating that the verbal directions given earlier to the Principal of the College was withdrawn by letter, dated 18-7-1998. At the same time, the Secretary, Department of Higher Education who also was present in person pursuant to the Court's direction produced before the Court the letter bearing No. 228 issued by the Additional Secretary to the Government to the Vice-Chancellor, Jai Prakash University on 19-7-1998 (Annexure-5). In this letter it was stated that the matter of regularisation of the petitioners on the basis of the order passed in L.P.A. No. 36/94 was fully reviewed and reconsidered in the light of all the relevant materials and other similar cases of regularisation. Thereupon, the Government took the decision that following their regularisation in service by order dated 20-5-1998 (Annexure-1) the petitioners will be entitled to the following benefits:
(Ka) Payment of their salary in their respective scales of pay from 20-5-1998, the date of their regularisation in service.
(Kha) The benefits of the past continuous service before regularisation only for the purpose of the determining seniority as laid down in the Supreme Court decision in Direct Recruit Class II Engineering Officers Association A.I.R. 1990 SC1607.
The direction given in letter dated 20-5-1998 for payment of salary to petitioner No. 20 for the period 21-3-1979 to September 1993 was cancelled ; and
The earlier letters dated 23-5-1998, 18-6-1998 and 24-6-1998 were to be read in the light of that letter (dated 19-7-1998).
7. In that letter produced in Court by the Secretary, Department of Education, the State Government seems to have finally taken the decision, for the first time, that the petitioners were not to be paid any arrears of salary for the period before their regularisation pursuant to the decision in L.P.A. No. 36 of 1994. The petitioners are most aggrieved by the decision as communicated by this letter and it is this letter that comes under challenge in this writ petition.
8. But, in order to put the matter sequentially, it may be stated that on the filing of the show cause by the Vice-Chancellor that the verbal direction for withholding payments to the petitioners was recalled and on the departmental Secretary producing the letter, dated 19-7-1998 plainly declaring that the petitioners will be paid their salary only from the date of their regularisation, this Court disposed of the contempt proceedings by passing the following order on 20-7-1998:
The Secretary and Additional Secretary, Higher Education Government Bihar, have also personally appeared today pursuant to this Court's order dated 17th July, 1998 and have produced a copy of the recent instructions issued on 19th July, 1998 regarding the payment of salary of the petitioners pursuant to the judgment given in the connected writ case which is kept on record.
Having regard to the instructions issued by the Vice-Chancellor of the University, learned Counsel for the petitioners does not want to press this M.J.C. application.
The M.J.C. application is dismissed as not pressed.
The petitioners, however, will be at liberty to challenge the aforementioned decision of the State Government; contained in letter dated 19th July, 1998 in an appropriate proceeding.
9. And since then the petitioners are trying to challenge the letter dated 19-7-1998 in one way or the other.
10. They first filed a petition (numbered as M.J.C. No. 2939 of 1998) for modification/recall of the order (quoted above) dismissing the contempt petition as not pressed. The modification petition filed by the petitioners was rejected by order dated 24-12-1998 which is as follows:
In view of the nature of reliefs sought for, in my opinion, this M.J.C. application is not maintainable. This M.J.C. application is thus rejected.
11. The petitioners then filed another petition (M.J.C. No. 2190 of 1999) making a prayer for initiating a fresh proceeding of contempt against the concerned authorities for changing their stand and resiling from assurances given to the Court with regard to the payment of arrears of the petitioners' salary, M.J.C. No. 2190/1999 was disposed of by order dated 24-3-1999. The relevant portion of which is reproduced below:
Having heard the Counsel for the parties as I find that the services of the petitioners have been approved by the State and stands regularised vide order contained in letter No. 134/20 May, 98, the judgment of Full Bench stands complied in its letter and spirit, though late. Thus, in this case, proceeding for contempt is not called for. If the petitioners were not paid salary for the period they actually performed duty because of dispute relating to their appointments against one or other post they may move before competent authority/Court of law for such relief relating to arrears of salary.
The M.J.C. application stands disposed of with the aforesaid observation/directions.
12. And then lastly, this writ petition was filed challenging the letter dated 19-7-1998 and seeking a direction from this Court for payment of arrears of salary for the period before the petitioners' regularisation in service, in terms of the earlier judgment in L.P.A. No. 36/94.
13. Mr. Janardhan Prasad Singh, Counsel appearing for the petitioner strongly assailed the decision as contained in the letter dated 19-7-1998. Learned Counsel submitted that the Government decision to pay to the petitioners their salary only from the date of their regularisation was a sudden volte-face and there was no reasonable ground for this complete reversal of the stand of the Government. Mr. Singh submitted that right from the beginning till the issuance of the letter dated 16-7-1998 the Government itself, leaving aside the petitioners, was reading and following the decision in L.P.A. No. 36/94 to mean that the petitioners were also entitled to payment of arrears of salary for the period of their service before regularisation. Mr. Singh relied upon a number of materials in support of his submission that the Government itself understood the decision in L.P.A. No. 36/94 to mean that it was also liable to pay to the petitioners the arrears of their salary for the period before regularisation. The materials relie upon by Mr. Singh may be enumerated as follows:
(i) the petition for Special Leave to appeal against the decision in L.P.A. No. 36/94 (Paragraph 2(b) and 14).
(ii) LA. No. 3 in S.L.P. (Paragraph 6).
(iii) The letter dated 20-5-1998 wherein petitioner No. 20 was directed to be paid his arrears of salary only for the period 21-3-1979 to September 1983 ; by implication the rest of the 19 petitioners were to be paid the arrears of their salary for the entire period from 21 -3-1979 till the date of their regularisation.
(iv) The letter dated 23-5-1998 by which the Registrar was told that the payment of the petitioners' arrears of salary was to be treated as the first charge on the funds released to the University.
(v) The stand of the State Government and assurances given to the Court on its behalf as appearing from the order-sheet of M.J.C. No. 1970/97.
(vi) The supplementary show case filed in M.J.C. No. 1970 of 1997 on behalf of the Vice-Chancellor, Jai Prakash University, on 20-7-1998 (that is, four days later than the issuance of the impugned order) (Paragraphs 1, 3 and 5).
14. From the materials relied upon the behalf of the petitioners, it indeed appears that till the State Government made a reviews of the matter of the petitioners' regularisation in service in the light of similar other cases of regularisation following Court's directions and on that basis issued the impugned letter, dated 19-7-1998 it was under the belief that in terms of the decision in L.P.A. No. 36/1994, it was liable to make payment of the petitioners' salary also for the period prior to their regularisation. And to be fair to Mr. Azfar Hasan, learned SC VII appearing for the State he did not controvert this position. Mr. Hasan submitted that for some time the Government might have been under the belief that its liability in terms of the Court's decision, was also to pay to the petitioners the arrears of the their salary for the period prior to their regularisation. He, however, submitted that for the purposes of this case how the Government earlier read and understood the Court's decision was quite irrelevant. Mr. Hasan submitted that an erroneous assumption on the part of the Government will not alter the judgment nor will it create any entitlement ii i favour of the petitioner. Learned Counsel further submitted that the rights and entitlements of the petitioners will be determined only on the basis of what directions were given in the Court's decision and not on the basis of what the Government made out of that decision. Mr. Hasan further contended that the Full Bench decision did not contain any direction for payment of arrears of salary for the period prior to the petitioner's regularisation and in fact, this is how this Court itself has construed that decision. He pointed out that after the earlier contempt petition (M.J.C. No. 1970 of 1997) was dismissed as withdrawn on production of the letter dated 19-7-1998 before the Court, the petitioners had filed another petition (M.J.C. No. 2939 of 1998) seeking modification/rficall of the order, dated 20-7-1998 by which the earlier contempt petition was dismissed as withdrawn. The letter petition was rejected by order, dated 24-12-1998. Thereafter, the petitioners filed another contempt petition (MJC No. 219 of 1999), alleging that the letter, dated 19-7-1998 was issued in deliberate disobedience of the directions given in the Full Bench decision. Mr. Hasan stated that by chance M J.C. No. 219 of 1999 was heard and disposed of by the Hon'ble Mr. Justice S.J. Mukhopadhaya, who happened to be a member of the Full Bench deciding LPANo. 36 of 1994. Mr. Justice Mukhopadhaya disposed of MJC No. 219 of 1999 by order, dated 24-3-1999. In this order, he found and held:. that the services of the petitioner have been approved by the State and stands regularised vide order contained in letter No. 134 dated 20 May, 1998 the judgment of Full Bench stands
compiled in its letter and spirit.
Mr. Hasan submitted that in the latter part of the that order by leaving it open to the petitioners to move the competent authority/Court of law for the arrears of their salary, Mr. Justice Mukhopadhaya simply allowed them to seek a relief beyond the decision of the Full Bench. He, thus concluded his submissions by saying that this Court's decision in L.P.A. No. 36 of 1994 was fully satisfied by the petitioners regularisation in service ; there was no direction in that decision for payment of petitioners' salary prior to their regularisation and what the petitioners were now claiming was beyond the decision and for that there was no sanction in law.
15. Mr. Hasan appears to be right in his submission that the petitioners' reliance on how the Full Bench decision was understood by the State Government is quite mis-placed. How the other side understands and accepts a position may be important or even conclusive on a point of fact but not so on a point of law. In the case of a claim based on a provision of law or on a Court's judgment, the claim must be clearly shown to arise from the legal provision or the judgment, as the case may be, and the claim cannot be supported on the crutches of how the other side understood the legal provision/judgment. For illustration, let us see the point from the other side. Assuming that in a Court's judgment there is a clear direction to the Government for certain positive action in favour of the private party. The Government taking the plea of its own understanding of the judgment cannot deny the direction and absolve itself of any liability arising from the judgment. In such a case the law will compel the Government to discharge its liability even coercively. The converse of this is equally true. If in fact there is no direction upon the Government a right will not be created and become enforcable against the Government simply because the Government misunderstood the judgment to create a liability against it.
16. Mr. Hasan's second submission based on the order passed by Mr. Justice Mukhopadhaya in M.J.C. No. 219 of 1999 also seems to have substance but I am unable to accept it as conclusive because that order was passed in a contempt proceeding which has different parameters than a proceeding before a writ Court. Ultimately, therefore, the answer to the question whether the petitioners have a legitimate claim for arrears of their salary for the period before their regularisation in service has to be found in the Full Bench decision in L.P.A. No. 36 of 1994.
17. The Full Bench decision examined the true import of Section 35 of the Bihar Universities Act, 1976 in the background of the unresolved controversies of absorption of the teaching and non-teaching employees of a number of colleges made constituent units of the different Universities in the 4th phase. Section 35 of the Act, as is commonly known, has twin prohibitions of which the decision took note of the following words:
The restraint envisaged by the section is thus two-fold neither post can be created nor appointment can be made without the prior approval of the State Government. If a sanctioned post of teaching is available i.e. vacant, appointment will be made without the prior approval of the State Government but for a period not exceeding six months.
18. The decision then went on to interpret the true scope, extent and nature of the prohibitions envisaged under Section 35 of the Act and in Paragraph 22 of the judgment it was observed and held as follows:
22. The above discussion may be summed up in these words. By reason of the approval of the staffing pattern proposed by the Bihar Inter University Board, non-teaching cases III and IV posts will be deemed to have been created with the prior approval of the State Government i.e. sanctioned. Appointments can be made against these posts in accordance with the staffing pattern without seeking further approval regarding post (s). Merely on the ground that prior approval of the State Government was not obtained, the appointment cannot be said to be illegal. The College/University authorities are competent to make appointment of eligible and suitable persons against such posts. Ordinarily, this should be done with the prior approval of the State Government. In exceptional case, in exigency of service or situation, provisional appointment can be made subject to approval of the State Government within the stipulated time-frame. It is open to the State Government to examine the eligibility and suitability of even those who have already been appointed against the sanctioned posts as per the staffing pattern.
19. Similar observations were reiterated in Paragraph 26 of the judgment before finally coming to the case of the petitioners. In Para 32 of the judgment, the following observations were made in respect of the petitioner:
32. In the ordinary course, in view of my conclusion that it is open to the State Government to consider the validity of appointments already made for the purpose of granting or refusing post facto approval, I would have considered asking the State Government to look into the claim of the appellants afresh. However, having regard to the fact that the appellants have continued in service for more than 17 years, I do not think it would be appropriate exercise of discretion to re-open to matter after such long lapse of time. In Direct Recruit Class II Engineering Offices Association v. State of Maharashtra : [1990]2SCR900 a Constitution Bench of the Apex Court has held that where initial appointment is not made according to the rules but the appointee continues in service uninterruptedly for long period till regularisation of his service, the entire period as the period spent in service for the purpose of consequential benefits will be counted. The appellants are accordingly entitled to have their services regularised against the posts within the staffing pattern as applicable to the College.
20. It is, thus, to be seen that in terms of Section 35 of the Act, as interpreted by the decision, the Government still had the right to consider the validity of the petitioners' appointments for the purpose of granting or refusing to grant post-facto approval to their appointments. But, the decision denied that right to the Government. The petitioners' long period of uninterrupted service was deemed by the Court as sufficient reason to restrain the Government from exercising its right to scrutinise the validity of the appointments and the petitioners were directed to be regularised in service without anything further. There was no other direction in respect of the petitioners' service prior to their regularisation and certainly there was no direction for payment of their salary for that period. It cannot, therefore, be said that the petitioners are entitled to payment of their salary for the period p or to their regularisation in terms of the decision in LPA No. No. 36 of 1994.
21. I, thus, see no infirmity in the impugned letter, dated 19-7-1998. No relief can be granted to the petitioners. This writ petition is dismissed but with no order as to costs.