Nand Lal Bhagat & Ors. v. NONE

Shashi Bhushan Thakur S/o Late Rajeshwar Thakur, village- Haripur, P.O. Maheshkhunth, P.S. Gogari, District- Khagaria, at present working as Peon in K.D.S. College- Gogari, P.S. Gogari, District- Khagaria..

Om Prakash Thakur S/o Sri Nand Lal Thakur, at present working as Lab Boy, Department of Botany, K.D.S. College, Gogari, Khagaria. Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 2

Anil Kumar Malakar, S/o Late Raghunandan Prasad Malakar, at present Lab Boy, Department of Zoology, K.D.S. College, Gogari, Khagaria. .... .... Respondent/s ====================================================== Letters Patent Appeal No.447 of 2013 ====================================================== 1. Jai Prakash Mishra S/O Sri Pran Ballabh Mishra R/O Village- Sriniyan, P.O.+P.S.- Gogari, District- Khagaria, at present working as Assistant in K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 2. Upendra Singh S/O Late Surya Narayan Singh R/O Village- Barichak, P.O.+P.S.- Gogari, District- Khagaria, at present working as Lab Boy, Chemistry Department In K.D.S. College, Gagari, P.S.- Gogari, District- Khagaria 3. Hari Ballabh Yadav S/O Sri Lakhan Lal Yadav R/O Village + P.O.- Ratan, P.S.- Gogari, District- Khagaria, at present working as Lab Boy, Physics Department in K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 4. Harendra Prasad Yadav S/O Late Basudev Yadav R/O P.O.- Ratan, P.S.- Gogari, District-Khagaria, at present working as Peon In K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 5. Vishwa Vijay Singh S/O Late Ram Dhani Pd. Singh R/O P.O.- Ratan, P.S. Gogari, District- Khagaria, at present working as Peon in K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 6. Shashi Bhushan Thakur S/O Late Rajeshwar Thakur R/O Village- Haripur, P.O.- Maheshkhunth, P.S.- Gogari, Dsitrict- Khagaria, At present working as Peon in K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 7. Om Prakash Thakur S/O Sri Nand Lal Thakur at present working as Lab Boy, Department Of Botany, K.D.S. College- Gogari, Khagaria 8. Anil Kumar Malakar S/O Late Raghunandan Prasad Malakar at present Lab Boy, Department of Zoology, K.D.S. College, Gogari, Khagaria Versus .... .... Appellant/s (Higher Education)

The State Of Bihar 2. The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 3. The Secretary Human Resources Development Department, Govt. Of Bihar, Patna 4. The Deputy Director Development Department, Govt. Of Bihar, Patna 5. The Vice-Chancellor Tilka Manjhi Bhagalpur University, Bhagalpur 6. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 7. The Deputy Registrar Tilka Manjhi Bhagalpur University, Bhagalpur 8. The Principal, K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 9. Nand Lal Bhagat S/O Late Parav Bhagat R/O + P.O.- Gogari, P.S.- Gogari, District- Khagaria, At Present Working As Assistant In K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 10. Suresh Yadav S/O Late Bhagawat Yadav R/O Village- Usari, P.O.+P.S.- Gogari, District- Khagaria, At Present Working As Peon In K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria Human Resources Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 3

Mahadeo Yadav S/O Late Theethar Yadav R/O Vill.- Usari, P.O.+P.S.- Gagari, District- Khagaria, At Present Working As Peon In K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria 12. Lala Prasad Singh S/O Late Raghunatha Singh R/O Vill.- Barichak, P.O.+P.S.- Gogari, District- Khagaria, At Present Working As Peon In K.D.S. College, Gogari, P.S.- Gogari, District- Khagaria .... .... Respondent/s ====================================================== Appearance : (In LPA No.586 of 2013) For the Appellant/s : Mr. Gajendra Kumar Jha For the Respondent/s : Mr. Sanjay Kr No.2, G.A.-5 For T.M.B.U : Mr. Ashok Kumar Keshri. (In LPA No.447 of 2013) For the Appellant/s : Mr. Ram Hriday Prasad For the Respondent/s : Mr. Sanjay Kr No.2 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 25-07-2013 I.A. No. 3431 of 2012 has been filed in LPA No. 586 of 2013 for condoning delay of approximately 40 days in the filing of the Appeal. We have considered the submissions on behalf of the parties and the explanation for the delay. The I.A. application is allowed. The two Appeals arise from a common order dated 01.02.2013 passed in C.W.J.C. No. 16667 of 2010 and analogous cases. The writ applications claiming payment of salary based on regularization of services was rejected holding that the appointment was made by the erstwhile Managing Committee after ban on appointments dated 24.07.1980. The submissions on behalf of both the Appellants Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 4 were primarily common except with a minor distinction sought to be drawn in LPA No. 586 of 2013 that they were appointed prior to the ban on 24.07.1980. It was submitted on behalf of the Appellants that they were appointed on Class-III and IV posts on daily wages. The claim for regularization was wrongly rejected on 13.08.2003. The Chancellor gave subsequent directions on 03.12.2005. Non- consideration thereafter led to institution of C.W.J.C. No. 12235 of 2005 by them. On 29.08.2006 directions were given to consider their cases and if they were found to be working against sanctioned posts necessary recommendation was to be made to the State Government in light of the order of the Chancellor dated

03.12.2005 for approval under Section 35 of the Universities Act. The University by order dated 31.03.2007 regularized them within the staffing pattern with effect from 03.12.2005 and forwarded it to the State Government which made certain queries duly replied by the University notwithstanding all of which salary is not being paid to them. Reliance was placed on 1997 (1) PLJR 509 (Braj Kishore Singh v. The State of Bihar) (FB), 2010 (3) PLJR 254 (The Bhagalpur National College Shikshettar Karamchari Sangh v. The State of Bihar) (SJ), and 2013 (2) PLJR 417 (Smt. Ragini Kumari v. State of Bihar) (SJ). It was lastly submitted that the Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 5 Appellants fulfilled all the requirements for regularization in accordance with (2006) 4 SCC 1 (Secretary, State of Karnataka v. Umadevi) as explained in (2010) 9 SCC 247 (State of Karnataka v. M.L. Kesari). Learned counsel for the State submitted that the order dated 13.08.2003 refusing regularization was not assailed by the Appellants. It specifically states that the initial appointment of the Appellants was not in accordance with law. It was made without advertisement, there was no recommendation of panel by the Selection Committee and appointments were not made by competent authority. Strong reliance was placed on Umadevi (supra) to submit that the question for regularization of a daily wage appointed contrary to the law does not arise. Reliance was also placed on the Full Bench decision in 2013(1) PLJR 964 (FB) (Ram Sewak Yadav v. State of Bihar) in which Umadevi (supra) and M.L. Kesari (supra) have been extensively discussed and interpreted. The law with regard to regularization has undergone a substantial change with the pronouncement on

10.04.2006 of the Constitution Bench in Umadevi (supra). Paragraph-54 of the same reads as follows :- ``54. It is also clarified that those Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 6 decisions which run counter to the principle settled in this decision, or in which the directions running counter to what we have held herein, will stand denuded of their status as precedents”. In Braj Kishore Singh (supra) it was observed at paragraph-32 as follows:- ``32. In the above premises, the judgment of the learned Single Judge rejecting the claim of the Appellants on the ground that they were appointed without prior approval of the State Government as contemplated under Section 35 of the Act cannot be sustained. In the ordinary course, in view of my conclusion that it is open to the State Government to consider the validity of appointments already made for the purpose of granting or refusing post facto approval, I would have considered asking the State Government to look into the claim of the appellants afresh.

However, having regard to the fact that the Appellants have continued in service for more than 17 years, I do not think it would be appropriate exercise of discretion to reopen the matter after such a long lapse of time…….. The appellants are accordingly entitled to have their services regularized against the posts within the staffing pattern as applicable to the College “. as follows :- In Umadevi (supra) it was held at paragraph-53 ``53. …… The State Government and their instrumentalities should take steps to regularize as a one- time measure, the services of such irregularly appointment, who Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 7 have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required to be filled up, in cases where temporary employees or daily wagers are being now employed.

The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement regularizing or making permanent, those not duly appointed as per the constitutional scheme”. In M.L. Kesari (supra) an observation was made at paragraph-7 which came to be interpreted as entitling a daily wage also to be considered for regularization if he had completed 10 years of continuous service, but had been appointed against a sanctioned post without undergoing process of open competitive selection deeming it to be irregular. It is therefore apparent that the benefit of Braj Kishore Singh is no more available to the Appellants. The Appellants clearly fall in the exception noticed in paragraph-53 of Umadevi (supra) as their claims were sub judice on the date the pronouncement of the Constitution Bench was made in view of pendency of C.W.J.C. No.

12235 of 2005 disposed subsequently on 29.08.2006. Such litigious Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 8 continuation in employment stands excluded from the directions of Umadevi. The Appellants claim to have been regularized within the staffing pattern. In our opinion, it is not the crux of the matter. The crucial question is if their initial appointment by the Managing Committee was inconsonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection. On account of various interpretations by more than one Bench of M.L. Kesari (supra) reference was made to the Full Bench. We have already noticed from the order refusing regularization dated 13.08.2003 that the appointment of the Appellants on daily wage was not inconsonance with the law. The conclusion in Ram Sewak Yadav (supra) at paragraph 43 is as follows:- ``43 (A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant; (B) An illegal appointment void abinitio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.

(C) Irregular appointments regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in Patna High Court LPA No.586 of 2013 (4) dt.25-07-2013 9 accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post. (D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.” The Bhagalpur National College Shikshettar Karamchari Sangh (supra) grants relief for regularization on basis of Braj Kishore Singh opining that the Special Leave Petition against the latter had been dismissed. But attention was not invited to Umadevi (supra). Smt. Ragini Kumari (supra) delivered on