Holding

Section 4(1)(14) gives universities exclusive power to decide on the absorption of staff of colleges taken over as constituent colleges, and its non‑obstante clause operates harmoniously with, not in conflict with, Section 35, which governs ordinary appointments in affiliated colleges; the State orders are valid and the commission’s report is binding.

Summary

The case concerned the absorption of about 4,000 teaching and non‑teaching employees from 40 colleges that were converted from affiliated to constituent status under the Bihar State Universities Act, 1976. The State of Bihar (and later Jharkhand) challenged a High Court order directing the universities to absorb these staff, arguing that Section 35 of the Act, which requires prior State approval for appointments, barred such absorption and that the State’s own orders were invalid because they were not issued in the name of the Governor. The Supreme Court held that Section 4(1)(14) (which empowers universities to decide on absorption of staff of taken‑over colleges) and Section 35 operate in separate fields; the university’s jurisdiction over absorption is exclusive and the non‑obstante clauses in both provisions must be harmoniously construed. The Court also affirmed the validity of the State’s orders and accepted the report of the one‑member enquiry commission, directing universities to act on its findings. Consequently, the appeal, the connected special leave petition and contempt petitions were dismissed.

Issues considered

The relationship between Section 4(1)(14) and Section 35 of the Bihar State Universities Act, 1976, and which provision governs the absorption of staff from affiliated colleges converted into constituent colleges.
Whether the non‑obstante clauses in both provisions create a conflict that must be resolved by giving precedence to one over the other.
The validity and binding effect of the State Government orders dated 01‑02‑1988 and 18‑12‑1989 that were not expressed in the name of the Governor under Article 166 of the Constitution.
The exclusive jurisdiction – university or State – to decide on the regularity of appointments and the absorption of staff after takeover.
The entitlement of employees appointed against non‑sanctioned posts to be absorbed.
The effect of the enquiry commission’s report on the parties and whether it is binding.

Legislation cited

Bihar State Universities Act, 1976s. 2(c), s. 2(i), s. 35, s. 4(1)(14), s. 57, s. 57A
Constitution of Indias. Article 166

Subjects

statutory interpretationnon‑obstante clauseuniversity jurisdictionabsorption of staffappointment validityArticle 166special leave petitioncontempt petitionBihar State Universities Act

Judgment

A
STATE OF BIHAR AND ORS.
v.
BIHAR RAJYA M.S.E.S.K.K. MAHASANGH AND ORS.

OCTOBER 12, 2004
B
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]

Service ~Absorption-Colleges affiliated to various universities taken
C over as constituent colleges under the Act of 1976-Jurisdiction of University
vis-a-vis the State Government to adjudicate upon validity of appointments in
affiliated colleges and absorption of those appointees in constituent colleges-
Held: App?intments in affiliated college in normal circumstances has to be
with the prior approval of State Government in accordance with S.35-But
D subject matter of absorption of staff of the taken over institutions shall be
within exclusive jurisdiction of the concerned University in accordance with
S.4(1)(14)-0n that matter, S.35 is not a constraint on the power of the
University-No conflict between provisions of S.4(1)(14) and S.35, although
each contains a non-obstante clause-The two provisions intend to operate in
E two different situations and fields, hence, over-ride each other in the field
exclusively assigned to each-Bihar State Universities Act, 1976-Sections
4(1)(14) and 35-lnterpretation of Statutes-Harmonious construction-
Requirement of-Jn case of two provisions in same Act each containing a
non-obstante clause.

F Constitution of India, 1950-Atticle 166-0rder of State Government
formally not expressed in the name of Governor-Challenge to, by the State
itself-Validity of-Held, not valid-State being the author of that decision, it
itself cannot be allowed to resile or go back on that decision-Mere change
ofthe elected government does not justify dishonouring the decision ofprevious
G elected government-If at all the decision of the earlier Government was not
acceptable to the newly elected Government, it was open to it to withdraw or
rescind the same formally.

Interpretation of Statutes-Non-obstante clause-Meaning, object and
H 376
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH 377
effect of-Two provisions each containing a non-obstante clause-Mode of A
interpretation in such situation---Held: No settled principles can be applied
except to refer to the object and purpose of each of the two provisions and the
language employed in each-Harmonious construction required

Dispute concerning absorption of about 4,000 employees working on B
teaching and non-teaching posts in 40 colleges "affiliated" to various·
universities which were taken over as "constituent" colleges in accordance
with the provisions ofBihar Universities Act, 1976 arose for consideration
in the present appeal.

The aforementioned "affiliated" colleges were made "constituent
c
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. The words 'affiliated college' and 'constituent college' D
are defined in Section 2(c) and 2(i) of 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' while
'constituent college' means a teaching institution maintained and
controlled by the university itself.
E
The High Court in the impugned judgment held that in accordance
with Section 4(1)(14) of the Act, the concerned Universities themselves 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; and that in view of the non-obstante F
clause contained in proviso in section 4(1)(14), the constraints in Section
35 which provides for grant of prior approval of the State Government
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. a'
The High Court rejected the contentions of the 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 appointe() with the prior H
378 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A approval of the State Government. Consequently allowing the writ
petitions filed by the Federation of employees, it issued a writ directing
the Universities to take steps and consider absorption of the existing staff
of the affiliated colleges in accordance with Section 4(1)(14).

B On appeal by the State Government to this Court, it appointed Mr.
Justice S.C. Agrawal, a forrrier Supreme Court Judge as a one-member
Commission to go into the various controversies and disputes with regard
to absorption of employees of the erstwhile affiliated colleges in the services
of the converted constituent colleges. The Commission submitted a detailed
C report.

Dismissing the appeal, and the connected special leave petition and
contempt petition_s, the Court

HELD: 1.1. A non-obstante clause is generally appended to a section
D 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
E non-obstante clause will not be an impediment for the operation of the
enactment or the provision in which the non-obstante clause occurs.
[401-G, H; 402-A)

'Principles of Statutory Interpretation', 9th Edition by Justice G.P.
F Singh - Chapter V, Synopsis IV pages 318 and 319, referred to.

1.2. 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
G problems of interpretation arise. In resolving such problems of
interpretation, no settled principles can be applied except to refer to the
object and purpose ofeach 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
H provisions in the same Act. In this difficult exercise, there are involved
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH 3 79

proper consideration of giving effect to the object and purpose of two A
provisions and the language employed in each. [402-B, C)

Shri Swaran Singh and Anr. v. Shri Kasturi Lal, [1977) 1 SCC 750,
relied on.

1.3. However, non-obstante clauses are not always to be regarded as
B
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. (402-E, F[ c
Bipathumma and Ors. v. Mariam Bibi, (1966) 1 Mysore Law Journal
162 and 165, approved.

2.1. There is no conflict in the provisions of Section 4(1)(14) and D
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 E
jurisdiction of concerned university in accordance with Section 4(1)(14)
of the Act. (404-F, G)

2.2. 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 F
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(1) alone. [403-D)

G
.... 2.3. Compared with Section 35 - Section 4(1)(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(1)(14) is that the matter of
absorption of staff of such institution/college proposed to be taken over, H
380 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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.
B 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-obstc:nte
C 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
D dispensed with because of the contrary provision contained in section
4(1)(14) and the latter Section is restricted in its operation to absorption
of staff of a taken over institution by the university. (405-A-E)

2.4. The two non"-obstante clauses, although slightly differently
worded one in proviso to Section 4(1)(14) and the other in Secti.on 35 of
E the Act have thus, been construed harmoniously. They operate in two
different fields - former to consideration of abso'rption 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
F an overriding effect on each other. That is why the Legislature has
employed a non-obstante clause in each. (406-E, Fl

3. Clause (c) to sub-section (2) of section 57 A was introduced by Act
3 of 1990 and has no retrospective application to the cases of affiliated

-
G co.lieges taken over as constituent colleges prior to the year 1990. The said
clause (c) to sub-section (2) of section 57 A requires further approval of
Bihar State University (Constituent Colleges)'Service Commission before
absorbing the services of teachers of the affiliated colleges converted into
constituent colleges. The aforesaid piece of subsequent legislation amen~ing
H the same Act can appropriately be taken as an aid to the interpretation
STATE OF BIHAR v. BI HAR RAJY A M.S.E.S.K.K.MAHASANGH 381

of the unamended provisions of the Act. The amended provisions of the A
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 B
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 colieges and
is merely reiteration of the legal position that appointments and promotion C
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 D
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 E
introduced subsequently in the year 1990 and 1993 referred to for a limited
purpose 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 F
as constituent colleges. [405-F-H; 406-A-D]

4. So far as the order of the State Government directing absorption
of employees against posts sanctioned and recommended by the
Committee, the State being the author of that decision, merely because it G
is formally not expressed in the name of Governor in terms of Article 166
of the Constitution, 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
decision was not acceptable to the newly elected Government, it was open H
382 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A to it to withdraw or rescind the same formally. In the absence of such
withdrawal or rescission of the decision, it is not open to the State ofBihar
and State of Jharkhand (created after reorganization of the State ofBiharJ
to contend that that decision does not bind them. [407-G, 408-C, DJ

B 5.1. The judgment of the High Court to the extent of the
interpretation placed by it on the provisions of section 4(1)(14) and section
35 with the directions issued in paragraphs 24 to 26 therein, is hereby
confirmed. (410-A]

5.2. The report of the commission of enquiry of Hon. Justice S. C.
C Agrawal[retired], is accepted and all objections filed against the said
report are rejected. (410-H, 411-AJ

5.3. The members of the staff in various affiliated colleges identified
and named in list no. (i) being appointees against the sanctioned posts shall
D be absorbed and formal order to that effect shall be issued by the
universities concerned. (411-A]

5.4. The universities shall take a decision under section 4(1)(14) of
the Act in the matter of absorption of appointees named in list no. (ii) of
E 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.
(411-B, CJ

In considering the question of absorption of appointees named in list
F no. (ii) of the report of the Enquiry Commission, the universities concerned
shall rely on the contents of the report of the enquiry commission and the
present judgment of this Court. (411-DJ

5.5. The appointees mentioned in list no. (iii), being the appointees
- G 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
H sending recommendations for sanction in their cases. The negative report
STATE OF BIHAR v. BIHARRAJYA M.S.E.S.K.K.MAHASANGH 383
of the enquiry commission with regard to list no. (iii) is accepted and the A
universities are directed to exclude all such appointees named in list no.
(iii) from consideration for absorption. [411-D-F)

5.6. Decision in individual cases, with due regard to the qualification
of each employee and corresponding statute applicable at the relevant time B
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. (411-G, H; 412-A)

CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 6098 of 1997. C
From the Judgment and Order dated 31.1.97 of the Patna High Court in
C.W.J.C. No. 4021 of 1995.

With S.L.P.(C) No: 18168/2002, C.P.(C)Nos. 5,53,54,83,353,363,549,82/ D
2002 and 343,377,441/2004 in C.A.No. 6098/97, l.A.Nos.102-103, 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. '.:.95,299, 303, 318, 320, 329, 332 [Applications for
Impleadment].
E
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 F
to file objections]

I.A.Nos. 116-118, 207, 262, 283, 345, 365 [Applications for Intervention]

I.A.Nos. 125-142, 144, 147, 149, 152, 155, 156, 162-163, 165, 167-168,
110-112, 175, 179-182, 184, 193, 205, 239, 256, 258, 264-272, 211, 284-285, G
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]
H
LA.No. 331 [For condonation of delay]
384 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

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

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,
B 300 [Application for exemption].

Rakesh Dwivedi, B.B. Singh, Akhilesh Kr. Pandey and Ashok Kr.
Pandey with him for the Appellant for State of Bihar.

M.L. Verma, Ashok Mathur and Rajesh Pathak with him for the
C Appellant for State of Jharkhand.

Shambhu Prasad Singh and Ms. Manjula Gupta for the Petitioner in
S.L.P.

D Ranjit Kumar, Harish N. Salve, Raju Ramachandran, Gopal
Subramanium, L.N. Rao, A. Sharan, A.K. Srivastava, Chandra Shekhar, P.S.

...
-''"-
. ··'•
E
Mishra, Ajit Kumar Sinha, Vijay Kumar Sinha, Pankaj Bhagat, Ashok Kumar
Singh, Saket Singh, Ms. Niranjana Singh, Shi Pujan Singh, Abhay Prakash
Sahay, Kuldip Singh, P.V. Dinesh, Sanjay K. Mishra, Abhishek Thakur, Ms .
Nutan Mishra, Atul Jha, Nirmal Mittal, Naresh Kumar, Gopal Prasad, Arup
Banerjee, D.P. Mukherjee, Braj K. Mishra, Ms. Aparna Jha, Ranjan Kumar
Jha, Iliren Dasan, Manoj Swamp, Athar Alam, Ambar Qamaruddin, Mrs. M.
Qamaruddin, Sumit Kumar, Ashwani Bhardwaj, S.P. Sharma, AbhishekAtrey,
Shishir Singh, Prem Prakash, Ms. Sharmila Upadhyaya, K.V. Viswanathan,
F Atul Kr. Sinha, B. Raghunath, Devender Singh, M.P. Jha, R.E. Roy,
Harshvardhan Jha, Anil K. Chopra, Sunil Kumar Verma, Amresh Kumar Singh,
A.P. Mayee, Yuga! Kishore Prasad, B.S. Rajesh Agrajit, Varinder Kr. Sharma,
Pavan Kumar, P. Chandra, Ajay Amritraj, Sanjeev Kumar, N.N. Jha, Phabhat
Kumar, Atishi Dipankar, Rajeev Singh, Ms. Sunita R. Singh, T.Anil Kumar,
Rakesh K. Khanna, Ms. Abha R. Sharma, R.P. Singh, Swetank Shantanu,
G Rajeev Bansal, A.K. Ghai, Ambhoj Kumar Sinha, Neeraj Shekhar, Mohan
Pandey, Vidya Bhushan Misra, R.D. Rathore, Dr. Kailash Chand, D.K. Thakur,
Ms. Poonam Kumari, Sanjay Jain, Ajay Choudhary, Rakesh Uttamchandra
Upadhyay, Navin Prakash, D.K. Garg, Mahendramohan Kumar Singh, Sudama
H Ojha, A.K. Tiwari, Dr. Maya Rao, R.P. Wadhwani, Tathagat Harsh Vardhan,
STATEOFBIHARv. Bll{ARRAJYAM.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 385

Mrs. Swarupa Reddy, Upendra Mishra, Amitabh Chandra Mishra, Dhruv Kr. A
Jha, C.D. Singh, S. Chandra Shekhar, Shree Prakash Sinha, Prabhash Kumar
Yadav, Dr. K.S. Chauhan, N.S. Bisht, Sunil Kumar, Himanshu Shekhar,
Shravan Singh, Sanjeev Malhotra, Mansoor Ali, Irshad Ahmad, Amit Kumar,
KS.Rana, Satish Chand Gupta, Dr. (Mrs.) Vipin Gupta, R. Nedumaran, Rajan
Dwivedi, D.K.Sinha, P. Gaur, S.K.Verma, T. Mahipal, Vikash Singh, Amrita B
Narayan, Prashant Chaudhary, Ms. V. Mohana, Anupam Lal Das, Manish
Verma, Rajnish Ranjan, Mohan Pandey, R.P. Goyal, Sunil Kumar, Mrs. Kirti
Sinha, Mrs. Sarla Chandra, Kanhaiya Priyadarshi, Krishnanand Pandeya, Mrs.
S. Usha Reddy, Rana Ranjit Singh, P.S. Jha, Amitesh Kumar, L.R. Singh, K.N.
Rai, Bharat Sangal, Manoj Swarup, K.K. Mohan, Arunabh Suman, Biswajit, C
Ashwani Kumar, Ranjeet Kumar, Harishankar, Pawan Kumar, Alok Vagreche,
Manish Singhvi, Saurabh Ajay, P.V. Yogeswaran, Manish Kumar Saran,
Santosh Kumar, Chandra Kanta Nayak, Rakesh K. Sharma, K.C. Bajaj,
Himanshu Bajaj, Anil Kumar Jha, Vijayendra Misra, Binay Kr. Das and
Samarendra Jha with them for the Respondents.
D
The Judgment of the Court was delivered by

WITH

I.A. Nos. 102-103 Para I.A. Nos. 105-108, 110-113, 119, 143, 146, 150, E
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].

DHARMADHIKARI, J. In this appeal, preferred by the State of Bihar
against the judgment date~ 3 l. l .1997 of the High Court of Patna, the dispute F
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 G
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 l 987.

This appeal is being decided along with the connected special leave
petition and contempt petitions. Our decision in the present main appeal, H
386 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.
. )
A 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.

B 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. ..:.
c
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
D 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.
E 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
F resolution fo_r 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
G 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 universities by 30.4.1986 and were
H pending with the government. The list of teachers appointed against such
STA TE OFBIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 3 87

additional posts pending for approval of the State Government were also A
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 govef11ment 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 B
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 C
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 D
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 E
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 p
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 po.sts the creation of which was
recommended by the University for sanction of the State Government.
G
On 17.1.1987, the Government ofBihar 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 H
388 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A subsequently reconstituted on 0 l .2. l 988, 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
B 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
C 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.

It seems that with the change of elected government there was rethinking
D 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
E complaints of manipulations al).d 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
F 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
G in erstwhile affiliated colleges. The association of the employees representing
both holders of teaching and non-teaching posts appro1ched 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
H four thousand employees working in different colleges under universities.
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 389

They also sought a further relief that their services be protected and not A
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 B
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 unoer sub-
section (14) of section 4 of the said Act in respect of regularization C
of the services of the teachers of the colleges which have become
constituent coileges 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 D
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 E
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 py the respective F
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.

Aggrieved by the judgment and the directions made by the High Court,
the State ofBihar has preferred this appeal. From the record of the proceedings G
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 .H
390 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B 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"
c 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
D and non-teaching employees had been submitted to the Education
Department of the State ofBihar 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
E
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
F
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
G 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?"
H
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 391

The one-member Commission completed within two years the A
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 titne to submit their written objections, if any. Objections B
have 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. C
_ :'+ . In answer to 'terms of reference' no. I, 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 D
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 ~o creat~on of additional E
fX)Stsaxi whi:h haYe'r::a:nsubmitted 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 epch college before
the cut-off date and which were pending with the concerned universities. p
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 G
by the State Government by the cut-offdate 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.
H
392 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A 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
B 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
C 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
D teaching and non-teaching members of the staff, w!io 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
E by the screening 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
F 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
G error in original report or it was done on other extraneous consideration. In
the opinion ofthe 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.
H
STATEOFBIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 393

After reading the report of the Commission and considering the A
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 B
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. C
In our opinion, decision on absorption of the existing teaching and non-
teaching staff of the affiliated colleges, which are taken over as constituent
colfeges, 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, D
if any, for the teaching and non-teach'.ng 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 E
basis of government resolution dated 19.8.1986 and the agreements entered
between universities and the concerned colleges, the commission aftf"r a
thorough enquiry and probe into records of the various colleges have given
three separate lists (i) teachers appointed against the sanctioned posts have
been placed in the order of the date they became eligible for consideration; F
(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. G
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
H
394 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R ..

A which recommendations 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
B · 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
C 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(1)(14), the concerned universities themselves,
D 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(1)(14), the constraints in section 35
E 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 th.eir conversion as constituent colleges.

The High Court rejected the contentions advanced on behalf of State
F 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 tile
universities, which are impleaded as parties to the petitions, to take steps and
G consider absorption of the existing staff of the affiliated colleges in accordance
with section 4(1)(14) of the Act ~ithin a period of four months from the date
of the order.

Learned senior counsel Shri Rakesh Dwivedi appears for the State of
H Bihar as the appellant before us. He has mainly attacked the judgment of the
STATEOFBIHAR v. BIHARRAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 395

High Court on the ground that it placed erroneous interpretation on the relevant A
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(1)(14) of the Act.
B
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 C
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'. Section 2(c) defines the
affiliated college thus :- D
"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 :-
E
"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 F
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 educa~ional institution upon receiving a proposal for the G
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(1) contains a non-obstante clause. It confers power on the
university to take ~ecision with regard to the appointments, special pay or
allowances and irregularity, if any, found in respect thereof in affiliated H
396 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R:

A 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(1) of the Act with its
proviso needs full reproduction :-

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

c (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 /
D 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
E 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]
F
Other relevant provision is section 3 5 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) of clause (b) of section 35.
G 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. 'Notwithstanding anything contained in this
Act', no University or any college affiliated to such a university,
H
...

~TATE OF BI HAR v. BI HAR RAJYA M.S.E.S.K. K.MAHASANGH [DHARMADHIKARI, J.] 397

except such college :- A
(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; B
(ii) .................. .

(iii) .................. .

(iv) ...... without prior approval of the State Government.
c
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-Notwithstanding anything contained in this
Act, no University or any college affiliated to such a university, except D
such college :-

(a) .................... .

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

(ii) after the commencement of this Act no teaching or non- E
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 F
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 G
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.
H
398 SUJ'REME COURT REPORTS [2004] SUPP. 5 S.C.R.

A Under section 57, there is a provision of appointment of Bihar State
University [Constituent Colleges] Service Commission for making selections
and 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.
B 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
C section 57A requires recommendation of 'College Service Commission' for
making appointments to teaching posts in affiliated colleges. Thus, there are
two separate commissions one for 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
D added to it by various amendment Acts read as under :-
1
" [57 A]. (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
E 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
F
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
G
of charges is completed.

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

H I. Ins. by Act, ~8 of l 982.
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH (DHARMADHIKARI, J.] 399

(a) College Service Commission shall give its consent/ A
recommendation for the appointment, dismissal or tennination
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 B
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.
c
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 D
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 E
University Service from the date of making the college
constituent and their seniority shall be determined according
to the rules prescribed in the Statutes.

Learned counsel appearing for State of Bihar has argued that power to
sanction additional posts and appointments against the same in the affiliated F
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 working against non-sanctioned posts can claim no right of G
absorption after the conversion of affiliated colleges into constituent colleges.
. It is pointed out that taking advantage of the decisions dated I 2.6.1987 and
18.12. I 989 of the State Government by which information was called with
regard to appointees against post for which sanction was pending either with

2. Subs. by Act 3 of 1990. H-
400 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A. 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
B 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
C 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(1)(14)
D 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
E section 4(1)(14) and section 35 of the Act. In substance common argument
advanced is that section 4(1)(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,
F 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
G the text of clause 14 of section 4(1) 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(1), 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
H Act'. Pointing out above distinction in the two expressions of non-obstante
STATE OF BIHAR v. BIHAR RAJY A M.S.E S.K.K.MAHASANGH [DHARMADHIKARI, J.) 401

clauses in section 4(1)(14) and section 35, the contention advanced is on the A
subject of absorption of teachers of affiliated colleges which are converted
into constituent colleges, section 4(1)(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(1)(14) and
section 35 and the competing claims of the State and the University concerning B
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 C
or to make any appointment against such post without prior approval of the
State Government. Compared with this provision, clause 14 of section 4(l)
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 D
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 E
as 'final and binding'.

Taking note of the difference in language employed in the non-obstante
clauses in section 4(1)(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(l) uses the expression F
'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 G
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
H
402 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 and 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
B those of any other provisions or law, stimulating and intricate i:.roblems 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 hannonious interpretation
C 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 sec 750.]

D 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
E 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 i>rinciple enacting provision to which the non-obstante clause
F is attached. [See Bipathumma and Ors. v. Mariam Bibi (1966) 1 Mysore Law
Journal page 162 and at page 165]

lfwe 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 and mandates that
G 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(1) 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
H with any affiliated or non-affiliated institution to take over its management
. STATEOFBIHARv. BIHARRAJYAM.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.) 403

with assets and liabilities. It is with regard to such institutions which are A
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(1), by the language
employed in it, contemplates taking over of even such institutions where B
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 C
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 D
State Government. The subject of taking over instituti.on affiliated or non•
affiliated with assets, liabilities and staff is regulated by provisions of clause
14 of Section 4(1) 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 E
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 F
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 G
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 H
404 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A 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 Govel\lment granting an ex-
post facto approval to a post created and appointment made against it.

B We do not consider it necessary to express any final opinion as to
whether the provision of 'prior approval' containeci 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(1) operates in exclusive field of considering and taking decision
C on absorption of staff appointed 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
D 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 qf 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
E 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
F on recommendations of the university. We do not find any conflict in the
provisions of section 4(1)(14) and section 35, although each contains a non-
obstante clause. They intend to override each other in field exclusively assigned
fo 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
G exclusive jurisdiction of concerned university in accordance with Section
4(1)(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
H them. On examination of the scheme of the Act and the relevant provisions,
STATEOFBIHAR v. BIHARRAJYAM.S.E.S.K.K.MAHASANGH [QMRMADHIKARI, J.) 405

we find that Section 35, requiring prior sanction of the State Government for A
creation of posts and appointments, applies to all affiliated colleges. Compared
with Section 35 - Section 4(1)(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 B
Section 4(1)(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 C
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 du.e
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 D
overriding effect to each and restrict their operation within exclusive field
assigned to each. In the matter of creation of posts and appointments ir.
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(1)(14) and the E
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) F
to sub-section (2) of section 57A requires further approval of Bihar State
University [Constituent Colleges] 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 G
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 H
406 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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,
B statutes, rules and regulations would be :nvalid 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-
C 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
D 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.

E The two non-obstante cluses, although slightly differently worded one
in proviso to Section 4(1)(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 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
F 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, ~y order
G 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
H
STATE OF BIHAR v. BIHAR RAJYA M.S.E.S.K.K.MAHASANGH [DHARMADHIKARI, J.] 407

appearing have contended that the order dated 01.2.1988 granting sanction A
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 B
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 C
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 D
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 E
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 Resoluti~n :
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 F
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. G
Since the validity and authenticity of the two orders dated 0 l .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. H

,
408 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B Article 166 of the Constitution of India to give effecno 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
C 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 c~ntained 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 t'1e same formally.
In the absence of such withdrawal or rescission of the two orders dated
D OL2. l 988 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

E This Special leave petition arises out of an order 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
F 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
G 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, 82of2002 and 343,
377, 441 of 2004 in CA No. 6098 of 1997
H
STATE OF BIHAR 11. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH [DHARMADHIKARJ, J.] 409

The contempt petitions have been filed by members of the staff A
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.
B
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 C
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 .contemn Ors., seems reasonable and justified. Salaries D
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 :
E
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 F
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.
G
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 H
410 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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.

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
B 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
C 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
D out. Such mistakes in the Report of the Commission may be brought by the
affected employees to the notice of the universitie> concerned. It would be
open to the universities, for the above limited purpose to undertake eneiuiry
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
E 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
F 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 :
o·
I. The judgment of the High Court to the extent of the interpretation
placed by it on the provisions of section 4(1)(14) and section 35
with the directions issued in paragraphs 24 to 26 therein, is hereby
confirmed for the reasons recorded by us above.

H 2. The report of the commission of enquiry of Hon. Justice S. C.
Agrawal [retired], is accepted and all objections filed against the
STATEOFBIHARv.BIHARRAJYAM.S.ES.K.K.MAHASANGH [DHARMADHIKARI, J] 411

said report are rejected. A,
3. The members of the staff in various affiliated colleges identified
a~d 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(1)(14) of B
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 c
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
the enquiry commission and the present judgment of this Court. D
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
E
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. F
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. AU those objectors
have not been recommended for absorption in the report of the G
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
H
412 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B 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
C [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
D 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
E in this Court.

B.B.B. Appeal, Connected Special Leave Petition and
Contempt petition dismissed.

-