The Principal Secretary, Human Resources Development Department v. Govt. of Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6132 of 2011 ====================================================== 1. Ajay Paswan S/O Sri Ram Bachan Paswan Village - Raksia, Dulhin Bazar, Paliganj, District - Patna 2. Rajeev Kumar S/O Sri Bhimshankar Roy Village + P.O. - Harpur, District - Buxar 3. Smt. Kiran Kuamri D/O Late Bhagwati Prasad, Village - Anantpur, P.O. - Naubatpur, District - Patna Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principle Secretary, Human Resources Development Department, Government of Bihar, Patna 3. Magadh University, Bodh Gaya, District - Gaya, through Its Vice Chancellor 4. The Registrar, Magadh University, Bodh Gaya, District - Gaya .... .... Respondent/s ====================================================== With Civil Writ Jurisdiction Case No.6778 of 2011 ====================================================== 1. Shailesh Kumar Vimal son of Sri Ram Sujan Sharma, resident of village-Motipur, P.O. Naubatpur, Patna 2. Upendra Sah, son of Late Triveni Sah, ress, of Village and P.O. Harpur, Buxar 3. Ram Navneet Kumar son of Late Akhilesh Sharma, resident of village Amawa P.O. Maharpura, P.S. Bikram, Patna 4. Surendra Paswan son of Sri Lala Paswan, resident of village Abharanchak, P.O. Amarpura P.S. Naubatpur, Patna .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Versus Govt. of Bihar, Patna 3. Magadh University, Bodh Gaya through its Vice Chancellor 4. The Registrar, University, Bodh Gaya .... .... Respondent/s ====================================================== Appearance: (In CWJC No.6132 of 2011) For the Petitioner/s : Mr. Sunil Kumar Singh For the State : Mr. Ram Balak Mahto Advocate General For the University Mr. Abhimanyu Vatsa (In CWJC No.6778 of 2011) For the Petitioner/s : Mr. Sunil Kumar Singh For the State : Mr. Ram Balak Mahto Advocate General For the University Mr. Abhimanyu Vatsa ====================================================== 2 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 2 / 10
Legal Reasoning
CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 4 16-12-2013 The petitioners of the two writ petition claim to be Class III and Class IV employees of M.D. College, Naubatpur, Patna. The said college is a constituent unit of the Respondent Magadh University (for short „the University‟) having been taken over in the year 1977. The grievance raised by the petitioners is that although after having been appointed on Class III and IV posts in the said college against the sanctioned vacancies and their continuance since then on the post(s), the payment of their salary has been withheld by the respondents from June, 2009. Both the applications, therefore, have been heard together and are being disposed of with the consent of the parties. Relevant facts for disposal of the applications are drawn from CWJC No. 6132 of 2011. According to the petitioner(s) sanctioned posts of Class III and IV employees were available in the said college against which no appointment was made. The Principal of the college in question requested the University to take steps for appointment thereagainst. According to them, out of 23 Class IV vacancies in the said college only 11 were working. Similarly, several posts of Class III were vacant. The then Vice Chancellor in the light of the 3 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 3 / 10 request made by the Principal of the college constituted a three- man selection committee by order dated 11.06.2008 (Annexure-5). A paper publication inviting application(s) was thereafter issued on 08.07.2008 (Annexure-6). The petitioners and several others applied in response thereto. The selection committee completed the selection process and recommended the names of the petitioners for being appointed on Class III and IV posts in the said college on 19.07.2008. The said recommendation of the selection committee was forwarded by the Principal to the University on 07.01.2009. In the light of the said communication of the Principal of the college, the Registrar of the University vide communication dated 16.02.2009 (Annexure-8) informed the Principal that the matter was placed before and approved by the Syndicate of the University. The Principal was accordingly directed to take further steps for appointment of the recommended/selected candidates like the writ petitioners. One day thereafter vide communication dated 17.02.2009 (Annexure- 9) the University stayed further steps/process towards appointment of the petitioners. In effect, the operation of the communication dated 16.02.2009 (Annexure-8) was stayed. By another communication dated 28.02.2009 (Annexure-10) the Registrar of the University directed the Principal of the college to 4 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 4 / 10 proceed with the appointment of the selected/recommended candidates as per the order dated 16.02.2009 (Annexure-8). On 8.05.2009 the petitioners claim to have been appointed against Class III and IV posts under the order(s) of the Principal of the said college, copy whereof has been enclosed as Annexure-11. On being appointed the petitioners joined the post and started functioning as such. On 25.05.2009 (Annexure-12) the Principal informed the Registrar of the University about the appointment of
Decision
the writ petitioners and their joining on their respective posts. Heard both sides. It is the submission of the petitioners that the appointments were made strictly in accordance with the roster and after giving wide publication inviting applications. It may be noted here that in CWJC No. 6132 of 2011 the three petitioners claim to have been appointed as Storekeepers (Class III category) whereas in CWJC No. 6778 of 2011, the four petitioners claim to have been appointed as Class IV employees(Peons). The petitioners thereafter were paid their salary for one month only. Their payment of salary thereafter was withheld under the orders of the Respondent University propelling them to file the present writ petitions seeking a direction upon the respondents to make payment of salary including arrears to them. It has been asserted 5 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 5 / 10 that they are still functioning/working against the posts they were appointed and as such non payment of the salary would amount to denial of their rightful claim since they are still continuing on the post(s). A counter affidavit has been filed on behalf of the University. Learned counsel for the University with reference to the statements made in the counter affidavit has submitted that Sri B.N. Pandey was the Vice Chancellor of the University during the relevant period. Several appointment(s) during his tenure were made on Class III/IV posts in several colleges including the college in question. The matter was raised on the floor of the Assembly/Council. Under orders of the government an enquiry was set up to examine the legality/correctness of those appointments made under the order(s) of Shri B.N. Pandey, (the ex- Vice Chancellor of the University). The Divisional Commissioner of the Division made a detailed enquiry into those allegations and found substance in it. On receipt of the recommendation of the Divisional Commissioner an FIR has been lodged against Sri B.N. Pandey and the matter is pending consideration before the Court. It has been submitted that how many sanctioned post(s) of Class III and IV posts was/were available in college in question is the relevant consideration which 6 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 6 / 10 requires to be examined with reference to the diverse records of the University. This Court would extract paragraph 8 and 9 of the counter affidavit filed on behalf of the University which read thus:- “8. That the petitioners have claimed that they were appointed against the vacant sanctioned posts of IIIrd Grade and IVth Grade non teaching employees of M.D. College, Naubatpur through advertisement and selection procedure but it is pertinent to mention here that prior permission of the State Government is required as per the statute. It is further pertinent mention here that the Principal of M.D. College, Naubatpur has sent a letter bearing no.51/MISC/08 dated 02.04.2008 whereby it was mentioned that there is 12 sanctioned posts in IIIrd Grade and 11 sanctioned posts in IVth Grade for non teaching employees in the records of the University which is an error inasmuch as before the college was made a constituent unit of the University in 1975 the Governing Body of the said college on different occasions by way of proposal had created 24 IIIrd Grade posts and 23 IVth Grade posts in the said college on the basis of this letter the claim of 24 IIIrd Grade sanctioned posts and 23 IVth Grade sanctioned posts existing in the college have been made. 9. That in this regard the college has been asked to submit the related/relevant documents in 7 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 7 / 10 the college submitted the same in which many serious discrepancies where found as such in the year 2008 the university had issued several letter bearing nos. 382/GIA dated 29.08.2008, VC/RES/162/08 dated 13.08.2008, R/61/08 dated 12.08.2008 and VC/RES/07/10 dated 06.03.2010 with a direction to not to make any appointment at college level in IIIrd Grade and IVth Grade posts inasmuch as several persons were illegally appointed on IIIrd Grade and IVth Grade posts beyond the actual strength of sanctioned posts, the then VC had also cancelled any such appointments.” Learned counsel for the petitioners has contended that there is more than adequate materials/evidence on the records of the University to indicate that the college in question had sufficient number of Class III and Class IV posts justifying appointment of the petitioner(s) thereagainst. Counsel for the petitioners has highlighted that process of selection undertaken by the University is not in dispute. The only question to be considered, according to the case of the University, is whether the appointments of the petitioners was/were made against the sanctioned posts or not. Admittedly after the approval of the appointments of the petitioner in the said college by the 8 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 8 / 10 Respondent University they are working but without payment of salary. He also submitted with reference to the communication placed on record by the University that enquiry said to have been initiated by the University does not relate to the appointment of the petitioners. During the tenure of Sri B.N. Pandey several appointments were made on daily wages/contract basis which is the subject matter of the enquiry/investigation. Having considered the submissions of the parties, this Court finds that after due publication of the advertisement the petitioners were selected by the three-man committee constituted by the Vice Chancellor. After having offered appointment letters they have joined the posts and are continuously working. The matter at one stage was examined by the University and placed before and approved by the Syndicate of the University. Nothing has been placed before this Court to indicate that the resolution/decision of the Syndicate has subsequently been modified/annulled with regard to the posts held by the petitioners. Even accepting the case of the Respondent University a limited enquiry to ascertain the actual number of sanctioned posts in Class III & IV categories in the college in question is to be made. Such enquiry could have been made without waiting for the criminal proceeding. 9 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 9 / 10 Learned counsel for the petitioners has fairly taken a stand that a limited enquiry to ascertain the actual number of Class III and IV post(s) available in the college can be verified from the records of the University. If it is found that the petitioners have been appointed against the sanctioned posts of Class III and IV posts then the University should pay the petitioners the salary including the arrears forthwith. Learned counsel for the University, considering the said stand/submissions of the petitioner, states that the number of sanctioned posts available in the college in question shall be verified and appropriate decision shall be taken in this regard by the University. Let the Respondent-University complete the said exercise within a period of eight weeks from the date of receipt/production of a copy of this order. There is another aspect of the matter which needs to be addressed. The petitioners have asserted that on being appointed and their appointment having been approved by the Syndicate of the University, they are continuing on the post without any salary. In fact, they were paid salary for one month whereafter the payment of salary has been stopped under orders of the Respondent University. If the petitioners are allowed to continue 10 Patna High Court CWJC No.6132 of 2011 (4) dt.16-12-2013 10 / 10 on the post(s) then the respondents would be wholly unjustified in not paying the salary to the petitioners. This Court, therefore, directs that until an enquiry with regard to the actual number of sanctioned Class III and IV post(s) in the college in question is completed the petitioners shall be paid their current salary which shall, of course, be subject to the final decision to be taken by the University after looking through the records of the University in accordance with law. The writ applications are, accordingly, disposed of with the aforesaid observation(s)/direction(s). (Kishore Kumar Mandal, J) HR/-