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IN THE HIGH COURT OF JUDICATURE AT PATNA

(LETTERS PATENT APPELLATE JURISDICTION)
L.P.A. No. …… of 2023
(Arising out of Judgement/order dated 27.07.2022 Passed in
C.W.J.C. No. 17423/2019)

In the matter of an appeal under Clause

10 of the Letters Patent of the Patna

High Court Rules.

AND

In the matter of

1. The State of Bihar through, Principle Secretary, Human Resources

Department, Govt. of Bihar, Patna.

2. The Principle Secretary, Human Resources Department, Govt. of

Bihar, Patna.

…Respondents/Appellants.

Versus

Madan Kumar Choudhary Son of late Ram Sudisht Choudhary, Ward

No. 47, K.M. Tank Phulwari, P.S. Laheria Sarai, Darbhanga Bihar

846001

……Petitioners/Respondents

To,
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The Hon’ble Mr. Justice K. Vinod Chandran, the Chief Justice

of the High Court of Judicature at Patna and his companion Hon’ble

justices of the said Hon’ble Court.

The humble Memo of Appeal on

behalf of the Appellants named above.

Most Respectfully Sheweth:

1. That the present Letters Patent Appeal is being preferred against the

Judgment and order 27.08.2019passed by Hon’ble Mr. Justice Anil

Kumar Upadhyay (as he then was) in CWJC No.17423 of 2019

whereby and whereunder the Hon’ble Single Judge waspleased to

allow the said writ petition directing, amongst others, the respondent to

ensure payment of salary (arrears and current) treating the petitioner as

absorbed pursuant to bipartite agreement, which has binding effect in

view of the judgment of the Apex Court in the case of State of Bihar &

Ors. Vs. Sunny Prakash & Ors, reported in (2013) 3 SCC 559.

2. That the appellants have not preferred any appeal against the order/

judgment dated 27.08.2019 passed in CWJC No. 17423/2019.

3. That few facts are being mentioned herein after appreciation of facts

and question of law involved in this appeal.

4. That the writ petition bearing CWJC 17423 of 2019 was filed with a

prayer for declaration holding the service of the petitioner has been

legally and validly absorbed in the University terms of the provisions

of section 4(1)(14) of the Bihar State Universities Act, 1976 and

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further for direction that petitioner-respondent is entitled to

consequential benefits of absorption. Further, for payment of unpaid

arrears of salary from November, 2006 till date with interest at the rate

of 12%.

5. That the facts as stated in the writ petition is that the petitioner/

respondent was appointed to the post of Assistant vide letter dated

14.03.1984 at MLSM College which was affiliated to Lalit Narayan

Mithila University (herein after referred as ‘LNMU’). The

petitioner/respondent joined on 14.03.1984 and has since been

continuously working. The petitioner/ respondent was serving as an

Assistant in MLSM College and the same alongwith 36 viable

affiliated college was converted into constituent college in the 4 th Phase

vide letter dated 19.08.1986. Resultantly, MLSM College was

converted as constituent college on 31.10.1986.

6. That in light of the recommendation of the sub-committee the Vice

Chancellor of LMNU made recommendation to the government for the

absorption of the petitioner/ respondent and further forwarded the

proposal for absorption of the petitioner/ respondent to the Hon’ble

Chancellor. Further, a meeting between Secretary, Human Resources

Department, Director, Higher Education and the representatives of

teaching and non-teaching employees was held on 03.04.2006 wherein

it came to light that 25 teaching and 78 non teaching staff were up for

absorption. It was decided in the meeting that out of the 25 teaching

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staff, those who could be absorbed in college may be absorbed and rest

may be adjusted on the basis of number of student and importance

subjects. The said decision was communicated vide letter no 522 dated

03.04.2006. Accordingly, the petitioner/ respondent was absorbed.

7. The petitioner/ respondent among others was not getting his regular

salary, and as such filed writ petition bearing CWJC 18416 of 2009.

The order therein was challenged in SLP no. 12591of 2010 before the

Hon’ble Apex Court wherein a one man commission headed by

Hon’ble Justice (Retd.) S.C. Agarwal upon whose resignationJustice

(Retd.) S.B., Sinha was appointed. The petitioner/respondent

approached the Justice (Retd.) S.B., Sinha Commission vide petition

no. 115/ 2013, the same was disposed vide order dated 10.02.2015

with direction to the Registrar, LMNU to fill up the vacant post on

account of death or retirement from amongst the seven claimants

including the petitioner/ respondent.

8. That it is submitted that in response to the writ petition bearing CWJC

17423 of 2019, the respondent/ appellants could not present their stand

by means of a Counter Affidavit as such the said writ petition was

taken up on 27.08.2019 for the first time and was disposed on the same

day vide the order under appeal, so it would be proper to narrate the

brief fact of the case in order to appreciate the issue involved and

further averment made herein below would demonstrate that the

impugned order is fit to be set aside by an order of this Hon’ble Court.

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9. That it is humbly submitted that the writ petitioner, admittedly claimed

to be non-teaching employee of MLSM College, which is a fourth

phase constituent college and is the subject matter of the two

commissions, constituted by the Hon’ble Supreme Court i.e. Hon’ble

Justice Agrawal Commission and Hon’ble Justice S. B. Sinha

Commission.

10. That it is submitted that the matter of validity of appointment of

teaching and non-teaching employees of 4th Phase constituent collee

travelled upto Hon’ble Apex Court in Civil Appeal no. 6098 of 1997

wherein Hon’ble Apex Court constituted Justice (retd.) S.C. Agarwal

Commission to examine the same. The Commission submitted a

detailed report on 19.12.2003 considering status of each of the college

and its employees considered at length.

11. That as per the report of the Justice Agarwal Commission there are 13

posts in non teaching category, however the name of the petitioner/

respondent did not figure in the list of non teaching staff considered

eligible by the Justice Agarwal Commission for absorption.

12. That in light of the order by Hon'ble Supreme Court in Civil Appeal

No. 6098 of 1997 as such, the Universities absorbed the services of

large numbers of teaching andnon-teaching employees beyond the 'S'

and 'RI' category. Several employees wereabsorbed in service and were

being paid salary.

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13. That in the year 2009 the payment of salary of the teaching and non-

teaching employees of 4th phase constituent colleges who were not

legally absorbed against S and RI category, their payments were

directed to be stopped by the State Government. Thereafter several writ

applications were filed in this Hon'ble Court. All the writ petitions

were heard alongwith LPA No. 1304 of 2009 and were disposed of

vide order dated 11.03.2010 whereby Two Men Commission headed

by Hon'ble Justice S.N.Jha was constituted.

14. That the said order dated 11.03.2010 passed in LPA No. 1304 of 2009

was challenged in Krishnanand Yadav & Ors. vs. Magadh University&

Ors. bearing SLP (C) No. 12591 of 2010 wherein vide order dated

22.01.2013 read with order dated 19.08.2013 the Hon'ble Supreme

Court appointed Hon'ble Justice (Retd.) S.B. Sinha Commission to

adjudicate the claims of various employees.

15. That it is humbly stated that the petitioner/ respondent also filed a

claim petition before the Hon'ble S. B. Sinha Commission bearing

Claim Petition No. 115 of 2013, which has been disposed vide order

dated 10.02.2015 with the direction to the LMNU to pass appropriate

order of absorption on the basis of seniority of the claimant concerned.

16. That it is humbly stated that in pursuance of the aforesaid order dated

10.02.2015 passed by the Hon'ble S. B. Sinha Commission, the

concerned university vide order dated 22.06.2018 rejected the claim of

absorption of the Petitioner/ respondent. Moreover, the State

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Government vide letter no. 100 dated 12.01.2019 has accorded its

approval to the rejection of the claim of absorption of the petitioner/

respondent.

17. That with respect to the agreement contained in letter no. 522 dated

03.04.2006, as mentioned in the order under appeal is concerned, it is

stated that the said letter has been cancelled vide decision contained in

memo no. 1473 dated 19.09.2008.

18. That it is humbly stated and submitted that the claim of the petitioner/

respondent is neither tenable on the basis of the Hon'ble Justice

Agrawal Commission report, Hon'ble JusticeS. B. Sinha Commission

report nor on the basis of the said agreement cancelled memo no. 1473

dated 19.09.2008, hence the order under appeal, which was based upon

the abovementioned reports and bipartite agreement is not sustainable

in the eyes of law.

19. That under the facts and circumstances stated above, it is manifestly

clear that the impugned order is not sustainable in the eye of law and

hence is fit to be set aside.

20. That it is submitted that despite the above facts the Hon’ble Single

Judge has been pleased to pass the order dated 27.08.2019 against

which the present memo of appeal is being preferred.

21. That the appellants have not filed any review before the Hon’ble Single

Jude or have not filed appeal before the Hon’ble Patna High Court or
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the Hon’ble Supreme Court against the impugned order dated

27.08.2019.

Being aggrieved by and dissatisfied

with the impugned Judgement/Order

dated 27.08.2019 passed by Hon’ble

Mr. Justice Anil Kumar Upadhyay (as

he then was) in CWJC No.17423 of

2019, the Appellants beg to prefer this

Letters Patent Appeal on amongst

others, the following;

G R O U N D S:

(i) For that the judgement and order of the Hon’ble Single Judge under

appeal is bad in facts and law.

(ii) For that the impugned order has been passed without giving an

opportunity to the respondents/apellants to file counter affidavit.

(iii) For that the Hon’ble Single Judge failed to appreciate that material

facts were suppressed by the writ petitioner despite having knowledge

of the same.

(iv) For that the Hon’ble Single Judge failed to appreciate that the name of

thepetitioner does not figure in the Hon'ble Justice Agrawal

Commission report.

(v) For that the Hon’bleSingle Judge failed to appreciate that in pursuance

of the order dated 10.02.2015 passed by the Hon'ble Justice S. B. Sinha

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Commission, the university has rejected the claim of absorption of the

petitioner/ respondent, which has been accepted by the respondent/

appellants.

(vi) For that the Hon’ble Single Judge failed to appreciate that the

agreementdated 03.04.2006, has been cancelled vide decision

contained in memo no.1473 dated 19.09.2008, hence the same cannot

be relied upon by the petitioner/ respondent

(vii) For that the Hon’ble Single Judge failed to appreciate that the claim of

the petitioner/ respondent is neither tenable on the basis of the Hon'ble

Justice Agrawal Commission report, Hon'ble Justice S. B. Sinha

Commission report nor on the basis of the said agreement cancelled

memo no.1473 dated 19.09.2008.

(viii) For that the impugned bad in law and facts and warrants judicial

intervention.

(ix) For that any other grounds may be argued on behalf of the appellants at

the time of hearing at the time of hearing of the case.

It is therefore prayed that Your

Lordship may be pleased to admit this

appeal, issue notice, call for records of

the case and after hear the parties be

pleased to allow this appeal and set-

aside the impugned Judgment and

order dated 27.08.2019passed by

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Hon’ble Mr. Justice Anil Kumar

Upadhyay (as he then was) in CWJC

No.17423 of 2019 in the interest of

justice.

and/or

pass such other order or orders as may

be deemed fit and proper in the facts

and circumstances of the case.

And for this the Appellants shall ever pray.

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AFFIDAVIT

I, ………………......, aged about …… years, S/O …………………., resident of

………………….…………………., District-………., do hereby

solemnly affirm and state as follows:-

1. That I am posted as …………………………., at

……………………………….and as such am well acquainted with the

facts and circumstances of this case as well as am duly authorized by

the Respondents/Appellantsto swear this affidavit.

2. That I have gone though the contents of this appeal and fully

understood the same.

3. That the statements made in paragraph nos. …………………………

are true to my knowledgeand those made in paragraph nos.

……………………………… are true to my information derived from

the records of the case and rests are by way of submissions before this

Hon’ble Court.
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CERTIFICATE

Certified that the grounds set forth above are good grounds for this

appeal.

It is further certified that the matter of which this appeal arises has

never come before this Hon’ble Court previously.

My instruction in this case that no notice is necessary either to

Attorney General of India, or to the Advocate’s General of Bihar be

served as required under rule1 of order 27A of the Code of Civil

Procedure.

Advocate for the Appellants