Patna High Court
Prakash Narayan Jha vs The State Of Bihar on 28 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8323 of 2022
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1. Butai Rai, Son of Ramanand Rai, Resident of Bairiya, Motihari, P.S. -
Bairiya, District - East Champaran.
2. Imam Mehdi, Son of Late Bhikari Miyan, Ward No. 2, Resident of Math
Lohiya Ahirtoli, P.S. - Harsiddhi, District - East Champaran.
3. Shiv Shankar Prasad Yadav, Son of Raghunath Ray, Resident of Village and
P.O. - Inarwa Phulwar, P.S. - Chiraiya, District - East Champaran.
4. Shatrudhan Singh, Resident of Village and P.O .- Mathiya Bhopat, Chiraia,
P.S .- Mathiya Bhopat, District-East Champaran
5. Bharat Sah, Son of Late Raj Narayan Sah, Resident of Paithanpatti, Post-
Dariyapur,P.S. - Harsiddhi, District-East Champaran
6. Chandra Kishore Singh, Son of Rama Shankar Singh, Resident of Village
and Post - Mathiya Bhopat, Chiraiya, P.S .- Mathiya Bhopat, District-East
Champaran.
7. Prafull Kumar Sinha, Son of Ram Shankar Sinha, Resident of Ward No. 20,
Block Road, Kripa Niketan, Bhawanipur Zirat, P.S .- Shastri Nagar, District
East Champaran
8. Vijay Kumar Pandey, Son of Pahlad Pandey, Resident of Village-Mahuawa,
P.O .- Mahuawa, P.S .- Mahuawa Chiraian, District-East Champaran
9. Shyam Sundar Singh, Son of Bijli Singh, Resident of Ward No. 30, Sri
Krishna Nagar, Motihari, P.S .- Motihari Town, District-East Champaran
10. Vishwanath Ram, Son of Punit Ram, Resident of Ward No. 15, Mathiya
Zirat, P.S .- Motihari Town, District-East Champaran
11. Puja Prasad Pandey, Son of Saryug Pandey, Resident of Village-Satpipra
Bhumihari Tola, Post - Ramgarhwa, P.S .- Ramgarhwa, District-East
Champaran
12. Jawahar Ray, Son of Ramsarup Ray, Resident of Ward No. 06, Near
Engineering College, Bairiya, P.O .- Engineering College, P.S .- Motihari
Muffasil, District-East Champaran
13. Rahmat Ali Khan, Son of Walijan Khan, Resident of Ward No. 34, Near
NCC Office, Raza Bazar, P.S .- Motihari Town, District-East Champaran
14. Shri Kant Pandey, Son of Lakshminarayan Pandey, Resident of Ward 09,
Near Primary School, Sareya, P.S.- Manikpur, District-East Champaran
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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15. Vijay Kumar, Son of Late Kameshwar Prasad Singh, Resident of At - P.O
.Kiratpur Rajaram, P.S .- Bhagwanpur, District-Vaishali
... ... Petitioner/s
Versus
1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary Science and Technology Department, Government
of Bihar, Patna.
3. The Special Secretary, Science and Technology Department, Government of
Bihar, Patna.
4. The Director, Science and Technology Department, Government of Bihar,
Patna.
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 12363 of 2022
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1. Virendra Thakur son of Raj Sundar Thakur, resident of Ward No. 13,
Rupoliya, P.S. Dhaka District - East Champaran Bihar 845427.
2. Shailendra Kumar son of Kapildeo Singh, resident of Hetimpur, P.S.
Jamobazar District- Siwan.
3. Jyoti Narayan Jha son of Shankar Jha resident of MIT Campus, P.S. and
District - Muzaffarpur.
4. Suresh Jha son of Mahabir Jha resident of ward No. 06 Paigambarpur, P.S.
and District Muzaffarpur.
5. Rabindra Kumar Son of Gyan Datta Sharma resident of Village- Kespa, P.S.
Alipur, District- Gaya.
6. Laxmi Narayan Thakur son of Dev Narayan Thakur, Resident of Village
Mahuwa P.S. Chiraiya, East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Science and Technology Department, Government
of Bihar, Patna.
3. The Director, Science and Technology Department, Government of Bihar,
Patna.
4. Principal, MIT Muzaffarpur, Dist- Muzaffarpur.
... ... Respondent/s
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
3/21
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with
Civil Writ Jurisdiction Case No. 15679 of 2022
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1. Prakash Narayan Jha son of late Shyam Chandra Jha resident of Village-
Kharaka Basant, P.S.- Nanpur, District- Sitamarhi.
2. Ravindra Nath Jha son of late Hem Nath Jha, resident of Zila School Road
Near Micro wave Tower Suryoday Nagar, Purnea.
3. Shashi Shekhar Upadhyaya, son of Late Kanhaiya Upadhyay, resident of
Upadhyay Tola, Goh, District- Aurangabad.
4. Bashishtha Narayan Jha, son of Sri Naresh Jha, resident of B.C.E. Campus,
Sabour, District- Bhagalpur.
5. Lalit Mohan Jha, son of Parshuram Jha, resident of Engineering College,
Bhagalpur, Sabour, District- Bhagalpur.
6. Satya Narayan Jha, son of Shashi Kant Jha, resident of Hanuman Nagar,
Via- Kurson Nadiyaan, Gorkha, District- Darbhanga.
7. Surya Vanshi Mishra, son of Naresh Mishra, Ward No. 8, Tharhi, Andhra
Tharhi, District- Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Science and Technology Department, Government
of Bihar, Patna.
3. The Director, Science and Technology Department, Government of Bihar,
Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 8323 of 2022)
For the Petitioner/s : Mr. Binodanand Mishra, Sr. Advocate
Mr. Avinash Kumar Sinha, Advocate
Mr. Sandeep Kumar, Advocate
Mr. Gunjan Kumar Jha, Advocate
Ms. Ankita Tripathi, Advocate
For the Respondent/s : Ms. Archana Meenakshee ( GP-6 )
Mr. Prabhat Ranjan, AC to GP-6
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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(In Civil Writ Jurisdiction Case No. 12363 of 2022)
For the Petitioner/s : Mr. Binodanand Mishra, Sr. Advocate
Mr. Sandeep Kumar, Advocate
For the Respondent/s : Mr. Ajay (GA-5)
Mr. Rakesh Kumar Ranjan, AC to GA-5
(In Civil Writ Jurisdiction Case No. 15679 of 2022)
For the Petitioner/s : Mr. Binodanand Mishra, Sr. Advocate
Mr. Shafiya Sanoj Ghani, Advocate
For the Respondent/s : Mr. Kumar Alok ( SC-7 )
Mr. Prem Ranjan, AC to SC-7
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
Date : 28-04-2025
Heard Mr. Binodanand Mishra, learned senior
counsel appearing on behalf of the petitioners and Ms.
Archana Meenakshee, learned GP-6; Mr. Ajay, learned GA-
5 as well as Mr. Kumar Alok, learned SC-7 appearing on
behalf of the State.
2. A common issue arises for determination in
these batch of writ petitions. Accordingly, all the three writ
petitions are being disposed of by this common order.
3. The petitioners in C.W.J.C. No. 8323 of 2022
were Class-III employees of Indian College of Engineering,
Motihari and the petitioners in other two writ petitions i.e.
C.W.J.C. No. 12363 of 2022 and C.W.J.C. No. 15679 of
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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2022 were the Class-III employees of Dr. Jagannath Mishra
Institute of Technology and Indian College of Engineering,
Motihari.
4. Both the above named engineering colleges,
which were private engineering colleges, were taken over
by the Government under the provisions of the Bihar
Private Engineering College (Taking Over) Ordinance, 1986
which Ordinance later on became an Act (hereinafter
referred to as the "Ordinance/Act").
5. While taking over the aforesaid engineering
colleges by the Government, the employees of both the
engineering colleges, however, were not taken over, but a
provision was made in the Ordinance/Act for their
continuance of service on adhoc basis till a decision under
sub-Section 3 of the Section 5 was taken by the State
Government.
6. As per the provisions of sub-Section 2 & 3 of
Section 5, the State Government was required to set up a
Committee of experts for examining the strength of the staff
and staffing pattern and to submit a report to the
Government for its decision, inter alia, regarding
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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absorption of the employees. The Government, in pursuance
of Section 5, had constituted a screening Committee. The
Committee recommended the petitioners for absorption
from the date of joining, which the State Government
accepted and accordingly, absorbed the petitioners from the
date of their joining in the service.
7. The petitioners now claims that their date of
absorption in the service should be counted from the date of
taking over of the colleges as per the Ordinance/Act i.e.
09.12.1986.
8
. The claim of the petitioners has been made on
the basis of order dated 02.04.2019 (Annexure-8 of the writ
petition), issued by the Special Secretary, Science and
Technology Department, Government of Bihar, Patna,
whereby, as many as 26 Class-III employees of the Indian
College of Engineering, Motihari have been ordered to be
absorbed in service from the date of taking over of the
college i.e 09.12.1996.
9. On perusal of the order dated 02.04.2019, it
appears that 26 Class-III employees of the Indian College of
Engineering, Motihari have been absorbed in service from
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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the date of taking over of the college i.e. 09.12.1996 on the
basis of orders passed by the Court.
10. Learned senior counsel appearing on behalf of
the petitioners submit that the decision rendered on
06.05.1996 by the Court in Raghunath Singh & Ors. vs.
State of Bihar & Ors. and other analogous cases (main
case being C.W.J.C. No. 1316 of 1991) is the case on the
basis of which 26 Class-III employees of the Indian College
of Engineering, Motihari, named in the order dated
02.04.2019, have been absorbed on and from the date of
taking over of the college.
11. Learned senior counsel for the petitioners have
further submitted that the decision rendered in Raghunath
Singh (supra) was challenged in L.P.A. which was
dismissed and against the order of L.P.A. Court, an S.L.P.
was also preferred in the Supreme Court, which was again
dismissed and accordingly, the judgment rendered in
Raghunath Singh (supra) has attained finality. Therefore,
on the basis of the decision rendered in Raghunath Singh
(supra), the order dated 02.04.2019 has been issued
providing the date of absorption of 26 Class-III employees
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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named therein, to be from the date of taking over of the
college by the Government.
12. Learned senior counsel, therefore, contends
that since the 26 persons named in the order dated
02.04.2019 and the petitioners in all these writ petitions
being Class-III employees of private engineering colleges,
which had been taken over by the Ordinance/Act mentioned
hereinabove are similarly situated persons and accordingly,
the petitioners should also be given the same benefit as has
been given to the 26 Class-III employees named in the order
dated 02.04.2019.
13. Learned State counsel, on the other hand, by
referring to the counter affidavit filed by the respondent
nos. 1 to 4, have pointed out to a decision rendered by this
Court on 05.09.2000 in C.W.J.C. No. 5024 of 1999 (Navo
Nath Jha & Ors. vs. the State of Bihar & Ors.) to contend
that the issue regarding the absorption of the employees of
erstwhile private engineering colleges (Indian College of
Engineering; Motihari, J.M.I.T., Darbhanga and Magadh
Engineeering College, Gaya) has been decided in the said
judgment in the light of Section 5 of the Ordinance/Act, in
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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which this Court had rejected the contention of the
petitioners in that writ petition for reckoning their date of
absorption in the service from the date of taking over of the
colleges i.e. 09.12.1986.
14. Learned State counsel further contends that the
decision rendered in the aforesaid writ petition has been
affirmed by the L.P.A. Court in L.P.A No. 1575 of 2000,
against which, S.L.P. was preferred before the Supreme
Court, which has also been dismissed vide order dated
19.11.2001 passed in Petition(s) for Special Leave to
Appeal (Civil) No. 3043 of 2001.
15. Learned State counsel, therefore, submits that
the decision rendered by this Court in C.W.J.C. No. 5024 of
1999 has attained finality, wherein, it has been held that the
absorption of the employees of the erstwhile private
engineering colleges after it was taken over by the
Government by the above mentioned Ordinance/Act cannot
be reckoned from the date of taking over of the college i.e.
09.12.1996.
16. Learned advocates appearing on behalf of the
parties have been heard and materials placed on record have
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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been perused.
17. Insofar as, the status of the teachers and other
categories of employees serving in the aforesaid private
engineering colleges are concerned it was provided to be
determined under Section 5 of the Ordinance/Act.
18. For better appreciation, Section 5 of the
Ordinance/Act is extracted hereinbelow:
“(5) Determination of
conditions of service of teachers and
other categories of employees of the
Private Engineering College – (1) All
the staff employed in the Private
Engineering College shall cease to be
the employees of the concerned Private
Engineering College from the date of
vesting in the State Government under
Section 3;
Provided that the employee
shall continue to serve the concerned
Private Engineering College on ad-hoc
basis till a decision under sub section
(3) is taken by the State Government.
(2) The State Government
shall set up on or more Committees of
experts and knowledgeable person who
shall examine the strength of the staff
and the staffing pattern and shall
further examine the bio-data of each
member of the teaching and other
categories of employees of each of the
Private Engineering Colleges and shall
ascertain whether strength staffing
pattern, appointment, promotion or
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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confirmation sanctioned and made by
the Managing Committee of each of
the Private Engineering College are
proper in accordance with Universities
Act, statues ordinance, rules or
Government direction/ circular and
shall take into consideration all
relevant materials such as the
requirements of the Private
Engineering College, qualification
experience and research degree etc.
and submit its report to the State
Government;
(3) The State Government on
receipt of report of the Committee of
Committees, as the case may be, shall
determine the strength of teaching and
other categories of employees and the
staffing pattern and shall decide in
respect of each member of the teaching
and other categories of employees on
the merit of each case whether to
absorb him in Government service or
to terminate his service or to allow him
to continue on ad-hoc basis for a fixed
term or on contact and shall where
necessary redetermine the rank, pay
allowances and her conditions of
service.”
19. Section 5 of the Ordinance/Act provides that
all the staffs employed in the Private Engineering College
shall cease to be the employees of the concerned Private
Engineering College from the date of vesting in the State
Government. However, it has been provided that the
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employees shall continue to serve the concerned Private
Engineering College on ad-hoc basis till a decision under
sub-Section (3) of the Section (5) is taken by the State
Government.
20. On reading of Section 5(2) and (3) of the
Ordinance/Act, it appears that the State Government is
required to constitute one or more Committees of experts
and knowledgeable persons for examining the strength of
the staff and the staffing pattern, upon the report of which
the State Government is required to take a decision in the
matter.
21. It has not been disputed that pursuant to expert
Committee constituted by the Government and report
submitted thereof, the petitioners have been absorbed in the
respective engineering colleges not from the date of taking
over of the colleges but from the date of their joining in the
engineering colleges after it was taken over by Government
under the Ordinance/Act.
22. From reading of Section 5 of the
Ordinance/Act, it appears that the conditions of service of
the teachers and other categories of employees of the
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Private Engineering Colleges after it has been taken over by
the Government has to be determined by the Government
on the basis of the report of the Committees of expert and
knowledgeable persons constituted by the Government.
23. On perusal of decision rendered in the case of
Navo Nath Jha (supra) enclosed in the counter affidavit
filed by the respondent nos. 1 to 4, it appears that the scope
of Section 5 of the Ordinance/Act has been determined in
that case.
24. In the aforesaid case of Navo Nath Jha
(supra), eleven petitioners, whose services were notified
under Section 5(3) of the Bihar Private Engineering College
(Taking Over) Ordinance, 1986/Act, have been absorbed in
the services with effect from the date of notification which
is dated 31.01.1991. The petitioners had contended in the
writ petition that as the engineering college was taken over
on 09.12.1986, their services be absorbed from the date of
taking over of the college.
25. Negating the contention of the petitioners, this
Court has held as under:
“The submission that the
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absorption from before the date of take
over of the college is in the teeth of the
provisions of section 5. As indicated
above, though the teachers and non-
teaching staff ceased to be
teachers/non-teaching staff of the
colleges upon take over, they
continued to serve the colleges on ad
hoc basis, subject to decision to be
taken in respect of their absorption
etc. by the State Government under
sub-Section (3). The proviso to section
5(1) which is relevant may be quoted
as under:-
“Provided that they shall
continue to serve the college on ad hoc
basis till a decision under sub-Section
(3) of this section is taken by the State
Government”
Sub-section (3), as indicated
above, empowers the State
Government to fix the strength of the
employees in accordance with the
staffing pattern and also decide in
respect of each teacher and non-
teaching staff on the “merit of each
case whether to absorb him in
Government service or to terminate
his service or to allow him to continue
on ad hoc basis for a fixed term of
contract and shall where necessary re-
determine the rank, pay and
allowances and other conditions of the
service”. If the continuance of the
teachers and non-teaching staff under
section 5(1) itself is subject to the
decision of the State Government
under section 5(3) at which stage their
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services can even be terminated, it is
difficult to visualize how their
substantive appointment can relate to
the initial date of the take over of the
College. While considering similar
provisions contained in the Bihar
Private Medical Colleges (Taking
Over) Act, 1978 in State of Bihar v. Dr.
Yogendra Singh, AIR 1982 Supreme
Court 882, the Apex Court described
the service of such persons continuing
on ad-hoc basis as “precarious”.
Having regard to the express
provisions of section 5(3) I do not
think the petitioners are entitled to
reckon their absorption from the date
of the take over of the College i.e.
9.12.86. Thus, I do not find any merit
in their claim.”
26. Thus, from the decision rendered in the Navo
Nath Jha (supra), I find that the contention of the
petitioners to reckon their absorption from the date of
taking over of the engineering colleges by referring to the
provisions of Section 5(3) of the Ordinance/Act have been
negated by holding that the continuation of the petitioners
on ad-hoc basis under Section 5, is “precarious” and
therefore, not entitled to reckon their absorption from the
date of the take over of the colleges i.e. 09.12.1986.
27. The petitioners in these batch of writ petitions
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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are identically placed with the petitioners in the case of
Navo Nath Jha (supra). Since, the decision rendered in the
case of Navo Nath Jha (supra) has attained finality insofar
as the scope of operation of Section 5 of the Ordinance/Act
which provides for determination of the service condition of
the employees of the Private Engineering Colleges taken
over by the Government under the Ordinance/Act, I am of
the view that the petitioners will also be governed by the
decision rendered in the case of Navo Nath Jha (supra) and
accordingly, the petitioners will also be not entitled to
reckon their absorption from the date of taking over of the
Engineering College.
28. The services of the petitioners, in the case of
Raghunath Singh (supra), relied on by the petitioners,
were terminated under-Section 5(3) of the Ordinance/Act on
various grounds. When the termination order issued on
various grounds were put to challenge, this Court on finding
that the impugned termination orders were issued in
violation of the principle of natural justice had allowed the
writ petition directing the respondent authorities to take a
decision under Section 5(3) of the Ordinance/Act after
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providing each of the petitioners an opportunity of hearing
within a period of four months from the date of receipt of
copy of the judgment. It has further been provided that if
the respondent authorities do not take a decision within the
period prescribed, the petitioners will entitled to be
reinstated in service upon expiry of the period of four
months. On such reinstatement, it was further provided that
the petitioners, however, will not be entitled to the payment
of back wages but their continuity in service must be
maintained.
29. The order of the Court rendered in the case of
Raghunath Singh (supra) for maintaining the continuity of
service must be understood in the peculiar facts of the case
of the Raghunath Singh (supra) in the context of direction
that followed for reinstatement of the petitioners in the
event of the failure of the authorities to take a decision
within a period of four months with regard to the absorption
of the petitioners under Section 5(3) of the Ordinance/Act.
In the decision rendered in Raghunath Singh (supra), the
power of the Government to take a decision in the matter of
absorption of the employees of the colleges that were taken
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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over has not been disputed.
30. On the other hand, the decision rendered in
Navo Nath Jha (supra) on the scope of Section 5(3) of the
Ordinance/Act clearly lays down that absorption of the
employees under Section 5 of the Ordinance/Act cannot be
reckoned from the date of taking over of the college i.e.
09.12.1986.
31. In that view of the matter, I find that the order
dated 02.04.2019 issued by the Special Secretary, Science
and Technology Department, Government of Bihar, Patna,
whereby 26 Class-III employees of Indian College of
Engineering, Motihari have been absorbed in the service
from the date of taking over of the college i.e. 09.12.1986
on the ground stated therein to be in clear violation of the
law laid down in the case of Navo Nath Jha (supra). The
respondent authorities in issuing the order dated 02.04.2019
appears to have clearly disregarded the law laid down by
this Court in the case of Navo Nath Jha (supra).
32. Nonetheless, order dated 02.04.2019, issued
by the Special Secretary, Science and Technology
Department, Government of Bihar, Patna, whereby, 26
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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Class-III employees of Indian College of Engineering,
Motihari have been absorbed in service from the date of
taking over of the college i.e., 09.12.1986, may be examined
for which, the order dated 02.04.2019 itself is extracted
hereinbelow for ready reference:
33. Perusal of the order dated 02.04.2019, as
extracted hereinabove, would go to show that 26 Class-III
employees of Indian College of Engineering, Motihari have
been continued in service from the date of taking over of
the college on 09.12.1986 in compliance of the order dated
06.05.1996 passed in C.W.J.C. No. 1316 of 1991
[Reghunath Singh (supra)] and 14 other analogous writ
petitions as well as order dated 08.10.2013 passed by the
Patna High Court CWJC No.8323 of 2022 dt.28-04-2025
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Supreme Court in S.L.P.(C) No. 22588 of 2007 (State of
Bihar & Ors. vs. Nanhak Ram & Ors.) and order dated
11.02.2019, passed in M.J.C. No. 1595 of 2018 (Nanhak
Ram & Ors. vs. the State of Bihar & Ors.).
34. Thus, issuance of the order dated 02.04.2019
maintaining the continuity of service of 26 Class-III
employees of Indian College of Engineering, Motihari from
the date of taking over of the college on 09.12.1986, was
the result of various orders passed by this Court as well as
the Hon’ble Supreme Court in the fact and circumstances
arising with regard to the 26 Class-III employees of Indian
College of Engineering named in the order dated
02.04.2019. That, however, does not in any manner dilute
the law laid down in the case of Navo Nath Jha (supra) that
the absorption of the employees under Section (5) of the
Ordinance/Act cannot be reckoned from the date of taking
over of the college i.e. 09.12.1986.
35. In view of the discussions made hereinabove, I
am of the view that the petitioners’ claim for reckoning their
date of absorption from the date of taking over of the
college under the Ordinance/Act i.e. on 09.12.1986 cannot
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be sustained in view of the similar prayer made by the
petitioners in the case Navo Nath Jha (supra) having been
rejected by this Court vide order dated 05.09.2000 passed in
C.W.J.C. No. 5024 of 1999.
36. All the writ petitions, therefore, stand
dismissed.
(Nani Tagia, J)
Nilmani/-
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