IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6973 of 2006 1. Arvind Kumar, son of Ram Autar Singh, Resident of Village Dakshinichak, P.S. Athmalgola, District Patna. 2. Manoj Kumar, son of Madhusudan Singh, Resident of P.M.C.H. Quarters, P.S. Pirbahore, Patna-4. ------ Petitioners Versus 1. The State of Bihar. 2. The Secretary, Higher Education, Government of Bihar, Patna. 3. The Patna University through its Registrar. 4. The Vice Chancellor, Patna University, Patna. 5. The Registrar, Patna University, Patna. 6. The Principal, Vanijya Mahavidyalaya, Patna University, Patna. ---------- Respondents ----------- For the Petitioners :- Mr. Ganesh Prasad Singh, Sr. Adv. For the Patna University :- Mr. Ajay Kumar Sinha, Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (03.09.2010) Mihir Kumar Jha, J. Heard learned counsel for the parties. 2. The two petitioners before this Court have made prayer to the following effect:- “1. That this is an application for issuance of a writ in the nature of certiorari to quash that part of memo no. A/C-214 dated 29.1.2004, issued under the signature of the Registrar of the Patna university, whereby and whereunder the petitioners’ services have been absorbed on the post of Routine 2 Clerk with effect from the date of the order without granting them continuity of service and further for issuance of a consequential writ in the nature of mandamus directing and commanding the respondent-authorities to grant continuity of service with effect from the dates of their joining of the service at the Patna University in Vanijya Mahavidyalaya, Patna University, with all consequential benefits and provide them suitable posts as per the qualifications held by them and/or for issuance of an appropriate writ(s), order(s), direction(s), for which the petitioners may be found legally entitled to in the facts and circumstances stated hereinafter.” 3. Initially Mr. Singh was of the view that the order of this Court was not complied in sum and substance and the spirit of the Full Bench judgment in the case of Braj Kishore singh & Ors. Vs. The State of Bihar & Ors. reported in 1997(1)PLJR 509 was not carried out while regularizing the services of the petitioners by the impugned order dated 29.1.2004 and therefore, this Court should make a judicial review of the whole process of regularization in the light of the Government decision dated 10.5.1991. Later 3 on, Mr. Singh fairly conceded that the order of this Court, so far it relates to the petitioners, had stood complied, inasmuch as, in the order passed in the resultant contempt application, M.J.C. No. 2561 of 2000 it was clearly communicated on behalf of the petitioners that whatever decisions were given by this Court in the order dated 21.1.2000 in CWJC No. 8922 of 1998, had stood complied. 4. Mr. Singh then proceeded that since there was a liberty given in the said order dated 23.2.2006 disposing of the contempt application, MJC No. 2561 of 2000 that the petitioners could pursue the matter for un-redressed grievances, this Court could re-examine the whole matter afresh. Explaining this aspect, Mr. Singh would submit that when regularization was the concept of the Government in the circular dated 10.5.1991, the petitioners were entitled to be given such regularization from the date of their initial appointment and that too on the post on which they were originally engaged. For this purpose, he 4 relies on the judgment of the Full Bench in the case of Braj Kishore Singh (supra). 5. In the opinion of this Court, such submission of the learned senior counsel has to be rejected for more than one reason. First of all, regularization is not a mode and manner of appointment. An appointment in terms of Articles 14 & 16 of the Constitution of India read with relevant statutory appointment and recruitment rules, has to be made strictly in accordance with merit and after giving opportunity to all concerned. Admittedly, when the petitioners were appointed, no such process, as prescribed for following the mandate of Articles 14 & 16 of the Constitution of India, was ever gone into and the petitioners were, infact, backdoor entrants. For them, the scheme of regularization could only be made prospective from the date the same came into force. The inherent defects in their initial appointment which had crept into and were required to be condoned in the process of regularization of their service for bestowing the benefits of a regular servant of the University, got 5 removed from a particular date and it was for this purpose that the State Government had fixed a cut-off date of 10.5.1986 in its circular dated 10.5.1991, wherein, it was provided that they should not be removed from service and should be absorbed as and when the post would become vacant and/or available. 6. It is here that the scope of the earlier order of this Court would come into picture, inasmuch as, a direction was given by this Court that the Government should consider the cases of regularization of service of the petitioners in the light of the availability of post. The State Government infact had such sanctioned post for the petitioners with prospective effect. It was actually against those newly sanctioned posts that the petitioners were sought to be regularized and therefore for them to also claim benefit of their past services would be absolutely untenable both in the light of the factual scenario of non- existence of sanctioned post prior to the creation of the post as also the limited 6 observations made in the Full Bench judgment of Braj Kishore Singh (supra). 7. In fact the said judgment of Braj Kishore Singh (supra) was subsequently explained in this regard by this Court in the second round of litigation of the same petitioner, namely, Braj Kishore Singh in the case of Braj Kishore Singh & Ors. Vs. State of Bihar & Ors. reported in 2001(4)PLJR 814 wherein it was held that as follows:- “20. It is, thus, to be seen that in terms of section 35 of the Act, as interpreted by the decision, the Government still had the right to consider the validity of the petitioners’ appointments for the purpose of granting or refusing to grant post-facto approval to their appointments. But the decision denied that right to the Government. The petitioners’ long period of uninterrupted service was deemed by the court as sufficient reason to restrain the government from exercising its right to scrutinize the validity of the appointments and the petitioners were directed to be regularized in service without anything further. There was no other direction in respect of the petitioners’ service prior to their regularization and certainly 7 there was no direction for payment of their salary for that period. It cannot, therefore, be said that the petitioners are entitled to payment of their salary for the period prior to their regularization in terms of the decision in LPA No. 36 of 1994.” (Underlining for emphasis) 8. Even otherwise, the subsequent judgment of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. reported in 2006(4)SCC 1 has made it clear that regularization cannot be a mode of appointment and that too with retrospective effect. 9. That being so, the petitioners should thank their stars that their services were regularized else they too alike many others could have been shown the door for their appointment being not made strictly by following the mandate of Article 14 & 16 of the Constitution of India. 10. Accordingly, this application, being devoid of any merit, is dismissed. Patna High Court Dated 3rd September, 2010 A.F.R./Rishi (Mihir Kumar Jha, J.)