Kauslesh Nandan Sandhwar v. The State Of Bihar

Mr. Pushpa Sinha Mr. Lakmesh Marvind, AC to SC-9 Mr. Ashok Kr. Keshari For the State : For the University =========================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL JUDGMENT Date: 08-02-2013 : *************** There are two petitioners before this Court. According to them they were initially engaged sometime in the year 1981 at B.R.M. College, Munger, which is a constituent college of Tilka Manjhi Bhagalpur University, Bhagalpur. Engagement was purely temporary in nature on daily-wage. The Court is not required to comment on the manner of such engagement, because it goes without saying that such engagements were done without following any proper procedure and invariably either by Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 Managing Committee or the Principal of the college in question. According to the petitioner no. 1, his engagement was on a post of Office Assistant and petitioner no. 2 on a 3rd grade employee, as would be evident from Annexure- 3, which was issued in the year 1986. It is their case that there services were regularized on a so called decision taken by the Vice-Chancellor of the University, communicated through the Registrar, indicating that their services stood regularized w.e.f. 23.11.1987. Their case is that they have continued to get regular salary based on a pay-scale, fixed by the University September, 1999. From September, 1999 to June, 2003, they have not been given what was rightful due to them under certain circumstances, for which they are not answerable. Writ, therefore, came to be filed in the year 2000, seeking a direction upon the university authorities to pay them regular salary as they were regular employees of the college. Writ Application was admitted for hearing and after its admission many other things have happened by way of decision making which also has reflection upon the present dispute. One significant development which is required to be taken note of is that on an earlier direction to the Vice- Chancellor issued by Chancellor with regard Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 continuance of daily-wagers and adhoc appointments in the university or its constituent colleges, a decision was taken to disengage all such persons, working in various capacities as a daily-wagers. Naturally this led to a series of litigations before the High Court. Some Orders were also passed, holding that such removal was done without following any procedure or without giving any opportunity of hearing. However, those Orders of the Court did not help resolving the issue, therefore, the matter reached the doors of the Hon'ble Chancellor, when representations were filed making a grievance that regular payment of salary was not being made to employees of the university which added up to almost 467. 360 employees, who were working from before and 107 employees were those who were recruited or employed subsequently or were fresh engagements. The Hon'ble Chancellor after taking note of the detailed background of the litigations, the directions and the factual position, decided to give a direction for regularization of the employees in Class-III and Class-IV. This order is Annexure- 10, culmination thereof is the notification, contained in Annexure – 11, where name of two petitioners figure as persons who were regularized on the post w.e.f. 05.06.2003. Petitioners are Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 getting salary thereafter. The dispute therefore, remains for the period September, 1999 till 4th of June, 2003. It is the assertion of the learned senior counsel for the petitioners that since these petitioners were already regularized in the year 1987 by virtue of Annexure- 7, they were neither removed nor stopped from working, therefore, their payment of salary must accrue to them, even for this period, for which the Writ Application was filed. Counsel representing the University vehemently opposes the prayer on the given materials and evidence which has emerged on the dispute. It is his contention that Annexure- 7 is a document, which stands in isolation. There are no corroborating evidence or circumstances to show that the Vice-Chancellor had indeed at any point of time had taken a decision or given a direction for regularization of these two petitioners and therefore, their assertion made in this regard about their working or giving regular salary has to be accepted with certain reservation. Another circumstantial evidence which emerges is that at earlier point of time based on observation of the High Court the case of Nikhil Kumar Jha, the State Government issued a general notification, inviting applications from all those candidates who were working or were removed for regularization of their service. The Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 advertisement was issued by the university in which large number of persons, including these two petitioners, also responded and participated, having cleared that stumbling block towards regularization. They acquired some kind of a right or recognition for regularization only thereafter. This position has also been taken note of by the Hon'ble Chancellor in his order, contained in Annexure – 10. Counsel for the university, therefore, harps that where is the occasion for the petitioners being given any benefit of regular salary or payment if they have accepted the notification issued by the university contained in Annexure – 11, giving them the benefit w.e.f. 05.06.2003. Though the notification was issued in the year 2006, at no point of time, the petitioners have questioned the wisdom of the Chancellor as well as the notification issued by the University. If they have accepted this position and they have been regularized w.e.f. 05.06.2003, what transpired prior to that surely become a tenuous proposition for the petitioners to claim that they have been in continuous service deriving benefit of salary etc. from the respondent authorities, especially the university and the college. There is some force in the submission of the counsel for the university, because if the petitioners had actually acquired the status of permanency in terms of Annexure- Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 7, there would have been no occasion for them to be included in the exercise of regularization first by the advertisement and their response or accepting direction or decision of the Hon'ble Chancellor as well as the notification issued by the university, contained in Annexure – 11, because a regularized person cannot be regularized again, But then the conduct of these petitioners shows that they were not very sure as to where they stood, whatever be the documentation in this regard which have been brought on record, especially Annexure- 7 to the Writ Application. If the status of these petitioners have been given a seal of approval as well as permanency by virtue of Annexure- 11, then there is no occasion for this court to reopen the past transactions or their working for which the State or the university as such cannot be held down or be directed to shoulder the responsibility without there being any decisive decision taken with regard to the status of these two petitioners from an earlier date. The fact is that there is an unimpeachable document with regard to their regularization with large number of other employees, which is reflected from Annexure- 11 and the rest of the documents, which have been pressed into service, are sketchy documents, which do not solve the jigsaw puzzle. Patna High Court CWJC No.9227 of 2000 dt.08-02-2013 The story about their engagement, their continuance and regularization does not fit into place if the subsequent documents contained in Annexure – 10 and 11 are taken into consideration. One thing, however, does weigh in favour of the petitioners that despite all these events, having been taken place, if the college in question has taken work from them even for the period September, 1999 to 05.06.2003, then the obligation to pay them is upon the college in question and cannot be loaded upon the State or the university without there being clear and unambiguous decision taken by the State with regard to their appointment, continuance or regularization. The Writ Application is therefore, allowed to the limited extent that the petitioners have a right to claim whatever they can, subject to verification of record from the concerned college, where they have been made to work and nothing more. (Ajay Kumar Tripathi, J.) Patna High Court, Patna Dated: 08.02.2013 Shashi Kant Mishra NAFR