Vijay Shankar Rai and Others vs The State of Bihar and Others

Ajay Kumar Tripathi, J.—The petitioners are employees of what is known as Rajendra Agricultural University. This university is creation of a special Act, which is known as Bihar Agricultural University Act, 1987. If that be so it is an independent statutory autonomous body, having own set of Act and Statute to govern its affairs. The reason why these petitioners have approached the High Court is because by virtue of Annexure-6, which is a communication by the Agriculture Department of the State of Bihar to the Controller of Rajendra Agricultural University, that in view of the audit objection of the Controller and Auditor General of India coupled with the fact that since the A.C.P. Rule of the year 2003 are not applicable to Boards, Corporations and autonomous bodies and since the university did not take prior approval before creating financial liability upon the State in terms of Section 25(ii) of the Bihar Agricultural University Act, 1987, the benefit derived by the employees under the said scheme of A.C.P. is required to be recovered. The petitioners want quashing of Annexure-6, dated 23.12.2013.

Obviously, if the order is allowed to stand, recovery is going to be made from the employees who have derived financial benefit and it is going to hurt their pocket now, which the petitioners want to avoid through this legal action.

It is the case of the petitioners that even the university employees have been deriving the similar kind of benefit as State Government employees in matters of revision of salary as well as benefits of stagnation, which have been provided for in the various pay revision recommendations State of Bihar notified what is known as Bihar State Employees Conditions of Service Conditions ("Assured Career Progression Scheme") Rules, 2003 on 25.6.2003. This rule was notified under Article 309 of the Constitution of India with the object of granting assured career progression to regular employees of the State Government of Bihar. It is pretty exhaustive scheme and quite comprehensive. The rule though notified on 25.6.2003 came into effect from 9.8.1999. Since, the rule in question was for the benefit of the employees, the Board of Management of the university adopted the resolution extending the benefit to its employees under the 63rd meeting of the Board of Management, dated 3.4.2004. In terms of the scheme, the benefit was to accrue from 9.8.1999. An office order was also issued, which is Office Order No. 229, dated 10.6.2004. A copy thereof is at page 37 of the writ application, as part of Annexure-2 series.

Advantage and benefit of the office order started flowing in favour of the employees and all had been well for them till the Controller and Auditor General of India raised an objection that such benefit could never be extended to the employees of the university, as the scheme itself indicates so. Since there was much outlay of money from public ex-chequer, creating an illegal burden upon the State, the above fact was brought to the notice of the State Government. A copy of the audit objection is Annexure-A to the counter affidavit, filed on behalf of Respondent Nos. 1 to 3. The audit objection is not limited to the Rajendra Agricultural University. It also deals with similar kind of aberration with regard to other universities as well. Obviously, the audit objection raised an alarm amongst university authorities as well as the State Government. When response was sought from the university, the Controller approached the State Government to grant post facto approval, which it seems, has been refused by the State for the reasons emerging from a reading of Annexure-6. The matter under adjudication is whether such decision, contained in Annexure-6, is required to be interfered with and whether the action of the State is justified, creating a piquant situation for the employees.

Counsel for the petitioners submits that the Board of Management has the freedom to take decision and what is of significance is that there are even State Government representatives in the Board of Management. Therefore, the State authorities were fully aware of the decision so taken and what was done is not unique, because the resolution itself talks in terms of the circumstances under which the benefit of A.C.P. was being extended.

Another aspect, which emerges from the pleadings and evidence is, that though the State Government for one reason or the other has refused to give any kind of approval to the Board''s decision, it has agreed to extend the benefit of modified A.C.P. notified in the year 2009. If the order of the State Government, contained in Annexure-6, is not interfered with, a piquant situation arises, where the employees of the university will be denied the benefit of A.C.P. for the period 1999 till the year 2009, however, they will be entitled to draw the benefit of modified A.C.P. (MACP).

In addition to the challenge thrown to Annexure-6, the learned counsel representing the petitioners also tries to prevail upon the Court to adjudicate, whether equity or otherwise demands an order in favour of these petitioners for grant of benefit of A.C.P., which basically amounts to a post facto approval by a judicial order instead of an executive order, which has been turned down on an earlier request of the university. In the alternative it has also been prayed that a direction be given upon the State authorities to reconsider their decision, contained in Annexure-6, even at this belated stage with regard to extension of benefit of A.C.P. to the set of employees and university.

The Court is not willing to travel beyond the challenge, which has been thrown to Annexure-6 and the decision taken by the State authorities under the circumstances dealt with and reflected in the decision, under challenge.

Before proceeding with the matter any further, the Court would like to reproduce the extract of the provision of the A.C.P., which formed basis for the audit objection, culminating into issuance of Annexure-6. The relevant provision reproduced is quoted hereinbelow:--

"(2) It shall be extended to all the regular employees of Group "B", "C" and "D" of the State Government of Bihar. This may also be made applicable, by a special order of the State Government, to holders of isolated posts of Group "A". This shall not be applicable to the teachers of nationalized schools and employees of the public undertakings or the autonomous institutions, assisted, partially or fully, by the State Government."

Another provision of significance is explanation, which reads as under:--

"(iii) If an employee of a Public Sector Undertaking or an autonomous body enters into regular service of State Government, the period of his service rendered from the date of his entry into Government-service alone shall be counted for the purpose of sanction of financial progression under the Scheme."

If the State Government exercising power under Article 309 of the Constitution of India, deliberately and consciously decided to keep some category of employees out of the purview of such benefit, then the question arises whether any other authority could grant the benefit or extend the benefit to its employees unilaterally.

This Court has no hesitation in recording its opinion that the institution in question falls within the exempted category and surely comes in the category of an autonomous institution. No amount of reading of the provisions or interpretation, the employees of Rajendra Agricultural University can be treated to be employees of the State Government.

Another significant statutory provision, which is required to be reproduced hereinbelow is Section 25(ii) of the Bihar Agricultural University Act, 1987, which reads as under:--

"(ii) Notwithstanding anything contained in the Act no University or any college or its institution shall create any teaching or non-teaching post involving financial liability, nor shall increase the pay and allowances of its staff without prior sanction of the State Government."

(emphasis mine)

The above provision categorically and clearly lays down as a mandate that no university much less the present university would create financial obligation without prior sanction of the State Government. This provision does not envisage any post facto approval or sanction and the Court can very well appreciate as to why such a provision has been made.

The State of Bihar funds university education to the last penny. All the universities, running under the State, are financed by the State of Bihar from the public ex-chequer by way of grants. None of the universities have the capacity to meet even the basics of their expenses without the support and release of grants by the State. If obligation of financial kind is created upon the State Government, then obviously the approval of the State Government is a must in terms of the provisions quoted above.

What has been done in the present case? According to the pleadings of the petitioners the Board of Management of the University took the decision to extend the benefit of A.C.P. unilaterally and even issued an office order. All this has been done without any prior approval of the State Government. In other words, the decision of the Board of Management will not bind the State and the decision of the Board of Management is per se illegal and in violation of the statutory provision quoted above.

The university authorities have further gone ahead by its implementation and distributing the goodies in terms of the said resolution or notification. Obviously, on the basis of the budget forwarded to the State Government, money was released in favour of the university and the employees have derived benefit, which they were not supposed to, in the very first place. This has gone on for years. If the audit objection was not raised by the Controller and Auditor General of India, this illegal benefit would have continued unhindered.

When the audit objection was brought to the notice of the authorities then as a knee-jerk reaction, the university authorities tried to give explanations and made request for post-facto sanction.

If the law prohibits creation of financial liability and prior approval is a must then how post-facto sanction can be given, is not appreciated by the Court. If the university did not have the mandate to take a decision, creating financial liability in contravention of Section 25(ii) then, obviously, the Court will not fill in the blank by coming to the assistance of the petitioners and give a judicial mandate and approval for a post-facto sanction now.

The counsel representing the State Government has taken a plea that whatever has been done by the university authorities has been illegal per se. If the A.C.P. Scheme itself do not include such employees of the university and if Section 25(ii) creates an embargo against creating financial liability upon the universities then the first thing which the university ought to have been done was to seek its approval prior to implementation of the scheme. Since none of the same has been done and at no point of time, prior to the audit objection, any offer was made by the university authorities to get that Board''s resolution approved and sanctioned, there will be a problem coming in the way of these petitioners. The State authorities have further also taken a plea that in view of the recent Supreme Court decision, in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , if an illegal benefit has been derived by the employees, which they were not entitled to in the very first place and since that benefit has been derived on an illegal decision taken by the university authorities and since it involves outlay from the public ex-chequer, the money must return back to the State Government and it cannot be held back on one pretext or the other.

Counsel representing the university is at askance when it comes down to the rules, relating to A.C.P. as well as the provision contained in Section 25(ii). At the best he could only support the State Government in the sense that what was mandated under law if not done will surely become vulnerable and if under such a circumstance the State authorities came to issue Annexure-6, the university has nothing more to add to the same.

Counsel representing the petitioners thereafter submits that since the budgetary provisions were sanctioned approved and paid and since there were State authorities on the Board of Management, it will be deemed that the State had given its due approval, if not directly, indirectly.

All these submissions are required to be rejected on the face of it. The issue is not what these petitioners ought to be entitled. The issue is the manner in which these petitioners derived benefit of an illegal decision contrary to the sanction and mandate of law and which is now sought to be overcome through a judicial intervention and issue raised in the present writ application.

In view of the provisions and the manner in which the university has taken a decision, creating a financial liability upon the State Government, this Court is left with no option but to dismiss the writ application with a categorical direction that since (sic) such a decision was an illegal decision. This Court has had occasions to come across many an instances of financial indiscipline if not irregularity and illegality being committed by the university authorities with impuginity (sic--impunity?). The time has come when they should be put on notice. Courts should be circumspect in giving any kind of relief or judicial approval to such illegal acts. University authorities are cautioned and warned to be very careful in taking decisions in future and they must act in accordance with law and statute, otherwise the occasion may arise when all those persons who are involved in such decision making would be brought to book.

In view of the aforesaid facts and circumstances, Writ application is dismissed.