S.J. Mukhopadhaya, J.
1. The petitioner who was initially appointed as Lecturer in English prior to 1980 by the Government Body of Gurukul Sanskrit College, Bairagania, Sitarnarhi and his service was approved by the University, initially preferred this writ petition for direction on the Respondents for payment of salary for the period from October 1990 to May 1995 and that of the subsequent period.
2. During the pendency of the writ petition, in terms with direction given by the Chancellor, vide letter dated 19th September, 1995, the case of the petitioner was placed before the Absorption Committee, which rejected the claim, vide its decision dated 17th/18th June, 1999 (Annexure-15). The main ground taken was that the petitioner being not qualified, he having no higher 2nd Class Post-Graduate Degree (more than 52.5%), is not eligible for regularisation/absorption.
3. In fact, the case of the petitioner was earlier dealt with by the University. While they forwarded its opinion to the Chancellor, vide letter dated 25th July, 1995 (Annexure 12), therein the details of service career has been discussed by the University and for the said reason, it is better to quote the same to find out the manner in which the petitioner was appointed and the stand of the University, as was taken before the Chancellor.
The relevant extracts are, as follows:
4 to 10 - Sri Thakur was initially appointed by the Governing Body on the basis of local advertisement dated 10.5.79 and subsequently in the Anjavarta dated 18.3.82 though he had 3rd Class M.A. Degree at that time. The University had approved of his appointment vide Memo No. 238/81 dated 16.1.82. He subsequently improved his qualification to 2nd Class (49%) in his M.A. (English) in 1987 Special examination.
Sri Thakur has been paid his salary continuously from 1.4.81 to 30.9.90.
11 to 15: the petitioner has rightly stated that the qualification for regularisation of the service of temporary lecturer appointed on or before 28.2.82 is 'at least a second class Master's degree in the subject' (vide Governor's Secretariat letter No. 3103 dated 17.8.1987. According to the Chancellor's Secretariat No. BSU-25/33-2377 G.S.(I) dated 12.12.83, a second class Master' degree is prescribed for a college Lecturer.
The Bihar College Service Commission has in its letter No. 6222 dated 22.12.94 (enclosing a copy of the circular issued by the then Special Secretary, Education, Sri Shankar Banerjee) clearly stated that the Commission had accorded concurrence to the appointment of Lecturer and advertised the vacant posts of Lecturers. Prescribing the minimum qualification, which stipulates that for the lecturers in modem subjects like English, Hindi, Sanskrit, etc. a minimum second class still suffice. The commission has reiterated the same in its report letter No. 25 dated 6.1.95.
As stated above, Sri Thakur enhanced his qualification and obtained the requisite second class.
16 and 17: There is force in the contention of Sri Thakur that some of the teachers who were recommended by University (on the basis of the recommendation of the Absorption. Committee) for regularisation, possessed 3rd Class Master's degree at the time of their appointment prior to 20.2.82.
He has cited the cse of Sri Ram Kishore Mandal, Lecturer in English, K.M Sanskrit College, Madhubani, who was appointed on 14.5.75, though possessing and 3rd Class (33%). He enhanced his qualification to that of 2nd class (S.C. 5%) in English in 1985. The Chancellor approved of his case for absorption to regular service, vide letter dated 30.1.92.
18, 19 and 20: the University issued a letter dated 29.6.94 to the petitioner directing him to obtain 55% marks in M.A. failing which his services may stand terminated.
But, the contention of Sri Thakur is that where as other teachers similarly situated were allowed the benefit of absorption, he has been discriminated against and even his salary since October, 1990 remains withheld.
21 & 22: Sri Thakur has made submission to (a) set aside the above letter of the University in his case and (b) to regularise his services in keeping with the approval of the Chancellor in an identical case (that of Sri R.K. Mandal) and (c) to release his salary from October. 1990 onwards with arrears.
To sum up, the following points are in favour of Sri Thakur:
(i) He was appointed on 5.6.1979, and the University accorded approval of his appointment, by virtue of which he was paid his salary till September 1998.
(ii) His case for regularisation is identical with that of Sri R.K. Mandal (Deep. Madhubani) who has already been absorbed in the University service, though he had only 33% marks in M.A. (English) at the time of his appointment and he enhanced it to a second class much later in 1985.
(iii) The Bihar College Service Commission has even recently in its clarification dated 22.12.94 and 6.1.95 pointed out that they have accorded concurrence and flashed advertisement for appointment to the post of Lecturers prescribing only a second class as educational qualifications in Acharya/M.A.
(iv) The Statute date 12.12.83 has a special provision for the college Lecturers (English) prescribing as (qualification second class Master's degree.
(v) The case of Sri Thakur for absorption is under process and is to come up for consideration in the next meeting of the Absorption Committee.
Taking into account the above facts, the Vice-Chancellor is of the opinion that it is a fit case for release of salary.
Kindly place the matter before the Hon'ble Chancellor for his kind consideration orders.
4. However, when the case was taken up, the Counsel for the University opposed the writ petition on the ground that the petitioner is not qualified having not obtained more than 52.5% marks in M.A. (English). He placed reliance on Statute relating to absorption as circulate on 29th January, 1986 (Annexure-8).
5. However, Counsel for the petitioner, rightly pointed out that the aforesaid Statute was amended on 17th August, 1987 (vide Annexure-8), wherein Articles 1(b) and 1(c) were substituted, as follows:
Sub: Regularisation of service of purely temporary Lecturer appointed on or before the 28th February, 1982.
Sir,
I am directed to invite a reference to this Secretariat letter No. BSU 25/OB(I) dated 29.1.86 on the above subject and to say that the Chancellor on the recommendation of the State Government in the Education Department has been to approve the following amendment to the Statute under Section 5(2) of the Inter University Board Act, 1981 for implementation in your University.
1. For Article 1(b) substitute the following - (b) that, he possesses at least a second class master degree in the subject
2. In Article 1(c) of the Statute after the word contract authority and the following-
or the proposal for sanction of the post has been submitted by the University/College to the State Government in the Education Deptt. on or before 26.2.1992 which was subsequently approved by State Government in the said proposal is still under consideration of the State Government.
6. In the aforesaid background, the petitioner having enhanced his qualification in pursuance of Special Examination of the Batch 1987-88, thereafter, the Respondents had no jurisdiction to say that the petitioner is not eligible for absorption in terms with Article 1(b) of the Statute. In fact, the opinion which was forwarded to the Chancellor, they accepted that the case of the petitioner was fit for regularisation and he was entitled for salary, as quoted above.
7. At this stage, I may mention that the Counsel for the University also submitted that the Institution, in question, is no more an affiliated College, earlier affiliation granted having not extended by the State. However, no such stand cannot be accepted, no such plea having taken in the impugned decision and the counter-affidavit filed by the Respondents.
8. On the other hand, from the letter issued, by the State of Bihar, contained in letter No. 1050 dated 27th September, 1999, it appears that for such Sanskrit College, the State Government have sanctioned posts under Section 35 of the 1976 Act.
9. In the facts and circumstances, I set aside the decision of Absorption Committee dated 17th/18th June, 1999' (Annexure-15), so far as it relates to the petitioner and remit the matter to the Respondents to place the case of the petitioner before the Absorption Committee for fresh decision relating to his absorption, taking into account the amended Statute, including substituted Article 1(b). The decision should be taken and forwarded to the Chancellor within three months from the date of receipt/production of a copy of this order.
10. So far as arrears of salary is concerned, I hold that the petitioner is entitled for salary for the period from October 1990 onwards or the date till which the College remained affiliated, whichever is earlier. The arrears of salary is to be paid within three months from the date of receipt/production of a copy of this order.
11. If there is paucity of fund, the University will requisition from the State which, in its turn, will release the fund for compliance of the Court's order within one month from the date of such requisition.
12. It is needless to say that if the question relating to affiliation pending before the State and extension granted and on such basis other regularly appointed teachers are paid salary, in that case, the petitioner will be also entitled for salary for the subsequent period.
13. The writ petition stands disposed of with the aforesaid observations and directions.