-1- BEFORE THE HON’BLE JUSTICE S.B. SINHA COMMISSION NEW DELHI Krishna Nand Yadav Claimant Vs. Magadh University & Ors. Respondents Index S.No Contents Pg. No. 1.. Brief Synopsis 2. List of Abbreviations 3. Consolidated Reply on Behalf of State of Bihar 4 Miscellaneous
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BEFORE THE HON’BLE JUSTICE S.B. SINHA · PDF fileState of Bihar and Ors. was filed before the Hon’ble High Court of Judicature at Patna which culminated into the Special Leave
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BEFORE THE HON’BLE JUSTICE S.B. SINHA COMMISSION
NEW DELHI
Krishna Nand Yadav Claimant
Vs.
Magadh University & Ors. Respondents
Index
S.No Contents Pg. No.
1.. Brief Synopsis
2. List of Abbreviations
3. Consolidated Reply
on Behalf of State of
Bihar
4 Miscellaneous
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I. BRIEF SYNOPSIS:
The current dispute owes its origin to the decision of the State of
Bihar to convert 36 affiliated colleges situated in the State of
Bihar, as constituent colleges vide Letter No. 1095 dated
19.08.1986. The number was subsequently raised to 40. As a
result of this decision a number of Screening Committees were
constituted by the Universities to identify the actual number of
sanctioned posts in each colleges and employees working against
them. The Reports of these Committees were sent to the State
Government. However, as it turned out, there was inconsistency
in the Reports of these Committees and there were large number
of incidences of interpolation and tampering with the records. As
a result, the State Government directed a Vigilance enquiry
against the same. The Vigilance enquiry stated in its Report that a
large number of appointments have been made in violation of
Section 35 and 57A of the Bihar Universities Act, 1976.
Meanwhile, Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. v.
State of Bihar and Ors. was filed before the Hon’ble High Court of
Judicature at Patna which culminated into the Special Leave
Petition titled as the State of Bihar and Ors. V. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129. The
Hon’ble High Court vide order dated 31.01.1997 in Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors. v. State of Bihar and Ors. held
that the University had the Power to take decision in respect of
services of teaching and non-teaching employees concerned with
all the related colleges made constituent in 4th phase under the
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provisions of Section 4(1)(14) Bihar State Universities Act , 1976
in lawful manner within the period of four months from the date of
the judgment. The State of Bihar filed Special Leave Petition
against the aforesaid judgment of the Hon’ble High Court. The
Hon’ble Supreme Court in order to resolve the controversy, vide
order dated 12.10.2001 passed in State of Bihar and Ors. vs.
Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors., constituted a one
man enquiry Commission headed by the Hon’ble Justice S. C.
Agrawal and directed the Commission to submit its Report with
respect to employees who were entitled for absorption and those
who were not entitled for absorption. The Hon’ble Justice S.C.
Agrawal Commission had the following 4 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
pp. 206-07 of SLP and other dates mentioned in
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government communication 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 57-A 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 (1)
(14) of the Bihar State Universities Act 1976 and other
orders of the Government?”
The Hon’ble Justice S.C. Agrawal Commission submitted its
Report on 19.12.2003, which was accepted by the Hon’ble
Supreme Court in State of Bihar and Ors. Vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors.; 2005 (9) SCC 129 vide Order
dated 12.10.2004, whereby the Hon’ble Court discarded all the
objections raised against the Hon’ble Justice S.C. Agrawal
Commission Report.
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It is pertinent to mention that Pursuant to the judgment of the
Hon’ble Supreme Court in State of Bihar and Ors. vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Ors. ; 2005 (9) SCC 129 various
matters came to be filed and in one such matter, the Hon’ble High
Court of Judicature at Patna, in LPA No. 1304/2009 vide Order
dated 11.03.2010 ordered the setting up of two member
commission to decide the fate of employees placed in List (iii) i.e.
category R-II/NR of the Hon’ble Justice S.C. Agrawal Commission
Report and meanwhile to pay the salaries of the employees who
were currently working at their respective posts. However, the
working of the two member Commission was stayed by the
Hon’ble Supreme Court in SLP (C) No. 12591/2010 titled as
Krishna Nand Yadav & Others vs. Magadh University and Others;
vide order dated 07.05.2010. Thereafter, the Hon’ble High Court
of Judicature at Patna in Contempt Petition being MJC No.
5237/2010 vide Order dated 22.06.2011 directed the State of
Bihar to pay the salaries of the employees who were working in
the concerned Colleges. Thereafter, the Hon’ble Supreme Court in
SLP (C) No. 27964-65 vide Order dated 17.10.2011 stayed all the
contempt proceedings pending before the Hon’ble High Court and
vide order dated 21.10.2011 passed in Krishna Nand Yadav vs.
Magadh University & Ors; the Hon’ble Supreme Court listed the
matter for final disposal. Consequently, vide Order dated
22.01.2013 owing to the facts and circumstances of the case, the
Hon’ble Supreme Court in Krishna Nand Yadav vs. Magadh
University & Ors appointed Hon’ble Justice S.C. Agrawal as one
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man commission to enquire into the following aspects of the
matter:
“ a) The Commission shall adjudge the claims of
each of the employees (both teaching and non
teaching) for absorption in constituent colleges on the
anvil of Justice Agarwal Commission report dated
10.12.2001 and the decision of the Supreme Court in
State of Bihar versus Bihar Rajya MSESKK Maha Sangha,
2005 (9) SCC 129.
b) Each of the Writ Petitioners shall file their requisite
brief with all the details and the basis of claiming
absorption before the Commission within 4 week with
advance copies to (i) concerned University, (ii) Principal
Secretary, Higher Education, State of Bihar and (iii)
Standing counsel for State of Bihar in Supreme Court.
No claim made thereafter shall be entertained.
c) The concerned University and State of Bihar shall file
their response within 4 weeks thereafter.
d) The present order shall relate only to cases which
have been disposed of by the Patna High Court vide
judgment and order dated”
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11.03.2010 in LPA No. 1304 of 2009 and connected
matters.”
However, as Hon’ble Justice S.C. Agrawal expressed his inability
to continue to work as one man Commission, the Hon’ble
Supreme Court vide Order dated 19.08.2013 appointed Hon’ble
Justice S.B. Sinha as one man Commission to enquire into
various issues mentioned in Order dated 22.01.2013.
II. List of Abbreviations:
The Abbreviation used in the Hon’ble Justice S.C. Agrawal
Commission are provided below for the ease of this Hon’ble
Commission:
S. No. Abbr. Full Text
A
1
R-I Posts for which
recommendation was
sent by the University
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to the State
Government upto the
cut-off date 30-04-
1986.
2
R-II/ NR Posts for which
recommendations
were sent by the
University after the
Cut-off Date 30-04-
1986 or Nor
Recommended Post.
3 S Sanctioned Posts.
B. ANNEXURES
1 IA Sanctioned Posts of
Teachers.
2 IB Sanctioned Posts of
Non-Teaching Staff.
3 IIA Recommended
Posts-Teaching Staff.
4 II B Recommended
Posts- Non- Teaching
Staff.
5 III A Teachers who were
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working on the date
of conversion-
arranged subject
wise.
6 III B Teachers who have
been appointed on
the recommendation
of Bihar College
Service Commission,
teachers who have
been permanently
absorbed under the
statutes providing for
regularisation of
temporary lecturer
and teachers who did
not possess the
requisite qualification
on the date of
appointment but have
become eligible for
consideration
subsequently,
arranged subject
wise, in the order of
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the date of
appointment
indicating the date of
eligibility against their
names.
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IV A Teaching staff who
are eligible to be
considered for
absorption.
8 IV B Non-Teaching Staff
who are considered
eligible for absorption.
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III. Consolidated Reply on Behalf of the State of Bihar:
The claims can be classified into 11 different categories
It is submitted that the stand of the State of Bihar for the following
categories of claim is mentioned below. There are 11 different
categories of claims for the teachers and 8 different categories of
claims for the non- teachers. It is stated that the present reply is to
place on record the stand of the State of Bihar in respect of each
of the category for ease of this Hon’ble Commission, for all the
concerned Universities. Terms of reference of the Hon’ble
Supreme Court are very specific and parties cannot enlarge the
terms and address on issues beyond the terms of reference.
A. TEACHERS
It is pertinent to mention at the outset that following are the 11
different categories of claims advanced by the so called teaching
staff of the 28 Colleges of 6 (six) concerned Universities of the
State of Bihar:
(i) Claim for absorption in the concerned College;
(ii) Claim for confirmation of absorption made by Universities of
the claimants placed in the R-II/NR category of the Hon’ble Justice
S. C. Agrawal Commission.
(iii) Claim for the additional sanctioning of posts on the basis of
Government Order Dated 01.02.1988 and 18.12.1989.
(iv) Claim of absorption on the basis of Government Order dated
18.12.1989 and 01.02.1988.
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(v) Claim of absorption by those who have been working against
the sanctioned posts but whose name is categorised in the list R-
II/NR of the Hon’ble Justice S.C. Agrawal Commission Report.
(vi) Claim of absorption on the basis of positional hierarchy of the
Claimants as per the Hon’ble Justice S.C. Agrawal Commission
Report. Consequently, the claim for the fresh appraisal of
Positional Hierarchy by the claimants.
(vii) Claim for absorption by those who obtained qualification after
cut-off date.
(viii) Claim for payment of all dues including retirement benefits.
(ix) Claim for absorption of services from the date of conversion of
College as a Constituent College.
(x)Claims of absorption by employees of colleges not covered by
IVth Phase.
(xi) Claim for absorption on compassionate grounds by the Legal
Representatives.
(i) Claim for absorption in the concerned College:
It is stated that this category involves three types of cases.
Firstly, those claimants whose names are not present in
Annexure III A, Secondly those whose names are present
in list R-II and thirdly those whose name are present in list
R-I.
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(a) Claimants whose names are not present in Annexure
III A.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission only the teachers who
were categorised in the S list means IA i.e. the appointees
working on sanctioned posts and R-1 list means IIA i.e. the
appointees working on posts for which the recommendation
were sent by the Universities to the State Government
before and upto the cut off date (30.04.1986). It is humbly
submitted that the S list and R-I list have to be read
concurrently with Annexure-IVA because Annexure-IVA is
the recommendation of Justice Agrawal Commission Report.
Hence those claimants whose names do not appear in III A
and not part of either sanctioned (S) list or recommended
(R-I) list cannot be considered for absorption.
(b)Claimants whose names are present in list R-II of the
Annexure III A.
It is humbly submitted that as per the report of the Hon’ble
Justice S.C. Agrawal Commission and Judgement of the
Hon’ble Supreme Court only the teachers who were
categorised in the S and R-1 lists and whose post is either
sanctioned or recommended to the State Government by the
University for sanctioning up to the cut off date i.e.
30.04.1986 are eligible for absorption. As, those claimants
were not working against either the sanctioned posts or
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recommended posts, prior to 30-04-1986, their claims
cannot be considered.
(C) Claimants whose names are present in list R-I of the
Annexure III A.
It is submitted that for the claimants whose nature of post is
indicated as R-1 in the Annexure III A terms of reference of
the Hon’ble Supreme Court are very specific and parties
cannot enlarge the terms and address on issues beyond the
terms of reference means RI list which has to be derived
from Annexure-IV A because Annexure-IVA is the
recommendation of Justice Agrawal Commission Report.
(ii) Claim for confirmation of absorption made by
Universities of the claimants placed in the R-II/NR
category of the Hon’ble Justice S. C. Agrawal
Commission.
The Hon’ble Supreme Court in State of Bihar v. Bihar Rajya
MSESKK Maha Sangha, 2005 (9) SCC 129 at para. 28 and
73 (5); while accepting the recommendations of the Hon’ble
Justice S.C. Agrawal Commission has held that the teachers
placed in list III of the Hon’ble Justice S.C. Agrawal
Commission Report cannot claim any right of absorption, as
either their recommendations were sent after the cut-off
date or no recommendations were sent in their case.
Therefore, the Universities under S.4(1)(14) of the Bihar
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State Universities Act, 1976 were to consider claims for
absorption only of the teachers whose names were
categorised under list R-I of the Hon’ble Justice S.C.