====================================================== 1. Sudhir Kumar Singh Son Of Late Triyogi Narayan Singh Resident Of Village v. 1. The State Of Bihar Through The Secretary
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20037 of 2013 ====================================================== 1. Sudhir Kumar Singh Son Of Late Triyogi Narayan Singh Resident Of Village Athri, P.S. Runisaidpur, District Sitamarhi 2. Prem Kishore Singh Son Of Shiv Sharan Singh Resident Of Village Machi, P.S. Belsand, District Sitamarhi .... .... Petitioner/s Versus 1. The State Of Bihar Through The Secretary (Higher Education), Department Of Human Resources, Bihar, Patna 2. Director (Higher Education), Department Of Human Resources, Bihar, Patna 3. Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur Through Its Registrar 4. The Vice Chancellor, Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur 5. The Registrar, Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur 6. The Principal, J.S. College, Belsand, District Sitamarhi .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Yogendra Mishra, Adv. For the Respondent/s : Mr. Prasoon Sinha GA-2 & Mr. Prabhat Kumar, AC to GA-2. For the University : Mr. Harendra Kumar Tiwary, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 18-12-2013 Heard learned counsel for the parties. 02. The prayer of the petitioner in this writ application reads as follows:- "An appropriate writ, order or direction quashing the decision of the respondent nos. 3, 5 and 6 dated 28.03.2012 as contained in Annexure- 1 without sanctioning any post for the Lab Personnel working in the College, be issued. An appropriate writ, order of direction commanding the respondents to sanction posts of Lab Personnels (3rd grade) and Peons (4th grade) as per staffing pattern within a time frame, be issued. Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 2 the respondents An appropriate writ, order or direction commanding the petitioners either against the post sought to sanction or against the vacancies existing in different the University (respondent no. 3) within a time frame, be issued." to adjust colleges under 03. This is infact the next round of litigation which has flown from the earlier order of this Court dated 08.04.2013 passed in C.W.J.C No. 9437 of 2007.
Legal Reasoning
04. Mr. Yogendra Mishra, learned counsel appearing on behalf of the petitioner in support of the aforementioned prayer has initially sought to assail the decision taken by the State Government as with regard to creation of post in the College and his main emphasis was that when teaching of Intermediate courses are still being imparted in the College, the Government and the University could not have exceeded the number of students of the Intermediate course for the purposes of sanctioning of the post. According to Mr. Mishra, there could have been availability of more number of sanctioned posts which in turn would have led to automatic absorption/regularization of the petitioners who are working for more than two decades and yet stand deprived of their salary and emoluments in the prescribed pay scale only on account of lack of order of absorption and/or regularization of Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 3 their service against the sanctioned post. 05. In the considered opinion of this Court, neither the University nor the State Government have taken into account the provisions of Bihar State University Act which clearly lays down that the Intermediate course was not part of the teaching of the College and for which a separate provision has to be made. Thus any College affiliated up to degree level cannot also have sanctioned post for the Intermediate level staff. That is how this Court does not find any error in the decision taken by the Officers of the State Government of the University as contained in Annexure-4, wherein, number of admissible sanctioned posts were sanctioned and created in terms of interim order of this Court dated 08.04.2013 passed in C.W.J.C No. 9437 of 2007. Thus, the first plea of Mr. Mishra must fail. 06. As a matter of fact, such plea as with regard to the creation and sanction of post in fact had also itself failed as was noted in the earlier order of this Court dated 08.04.2013 which was passed only after noticing the order of the State Government dated 28.03.2012, wherein, it was held as follows:- "Nothing further is required to be done in the present writ application in the light of the decision, Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 4 which has now been taken in relation to the college in a meeting conducted under the Chairmanship of the Director, Higher Education, Government of Bihar. After taking inputs with regard to strength of the students and the courses, which are being taught in the said college, the number of posts for class III and class IV category in the said position has been worked out. The follow up action obviously will be taken now based on the decision dated 28.3.2012, which is Annexure- A to the supplementary counter affidavit filed on behalf of respondents 5 and 6. The Court is aware that looking at the number of claimants, the number of sanctioned posts under the staffing pattern can never meet the requirement of all the claimants but all that aspects cannot be examined in the present writ application looking at the primary relief, which was sought for in the present writ.
Decision
This writ application is disposed of as having become infructuous. However, any claim, assertion or another view as to the number of posts etc., which are required to be sanctioned under the staffing pattern, can always remain a subject of debate and challenge, if some of these petitioners do not derive benefit from the decision dated 23.8.2008, may be in yet another bout of litigation." (underlining for emphasis) 07. From the underlined portion of the order, it would become clear that the petitioners even earlier could not satisfy this Court as with regard to any anomaly in the order of the State Government as with regard to sanction of the posts without taking into account the number of Intermediate students. Thus, there can never be a second round of litigation for the same issue which was also gone into and Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 5 concluded by this Court in C.W.J.C No. 9437 of 2007. 08. Mr. Mishra, then has submitted that even if there would be no sanctioned posts for the petitioners to be absorbed/regularized on account of the order of the State Government and the University sanctioning the number of posts as per the staffing pattern, there has been a practice which has been followed more rigorously in Magadh University where the authorities having taking into account the long continuation of the staffs in constituent College beyond the sanctioned post has been sought to be protected by regularization of their service against the vacant sanctioned post of other constituent College. To that extent he has also placed reliance on an order of the Magadh University dated 07.07.2012. 09. The mode of regularization of service or the framing of policy of regularization normally cannot be the subject matter of a judicial review of this Court. All that this Court in exercise of power under Article-226 of the Constitution of India can do is that if there is a policy existing for regularization, its implementation has to be ensured rationally and in accordance with the requirement of Article- 14 and 16 of the Constitution of India. Regularization in fact Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 6 cannot be the mode of appointment which was held in the case of The Secretary State of Karnataka vs Uma Devi and Ors, reported in 2006(2 )PLJR SC 363. The said judgment of Uma Devi (supra) was relied upon by a Full bench of this Court in the case of Ram Sevak Yadav Vs The State of Bihar, reported in 2013(1) PLJR 964, wherein, dealing with exactly the same proposition of regularization, it has been held as follows:- "We therefore sum up our conclusions and (A) answer the reference as follows:- Uma prohibits Devi regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant; (supra) (B)An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances. (C)Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in 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 petitioners were appointed in temporary capacity by a process contrary to Article-14 of the Constitution without competitive selection as an individual favour doled out to them. There is no material to hold that they were appointed against Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 7 vacant sanctioned post and possessed qualifications for the same. They were terminated before (Uma Devi) (supra) and have sought to retain their status by virtue of Court proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant." 10. In the present case as on date there is no sanctioned post available for the petitioners for regularization of their service and as such in view of the aforementioned judgment of the Full Bench of this Court in the case of Ram Sevak Yadav (supra) the petitioners would not be entitled for regularization. 11. The petitioners however have relied on a precedent of the Magadh University and in that University the vacant sanctioned post of other constituent Colleges have been taken into account for regularization of service of such employees of the constituent College where there was no vacant sanctioned post. This matter of policy of regularization can be evolved by the employer by way of framing a scheme but the Court cannot give any direction to frame a scheme for regularization of service of the petitioners. 12. Admittedly, the learned Chancellor is the highest Officer of the University and therefore, such issue relating to Patna High Court CWJC No.20037 of 2013 (2) dt.18-12-2013 8 absorption/regularization of the petitioners after framing of scheme alike the one being followed in Magadh University can be looked into by him alone. 13. That being so, if the petitioners move before the learned Chancellor and make a prayer for regularization of their services, he would take into account all the relevant aspects including the precedent of Magadh University and if he finds that such practice being followed by the magadh University is by way of any sound and rational policy scheme is also duly approved by the learned Chancellor in consultation with by the State Government, he may direct framing of such scheme even for Bheem Rao Ambedkar Bihar University. 14. With the aforementioned observation and direction, this application is disposed of. Ranjan/- (Mihir Kumar Jha, J)