CIVIL WRIT JURISDICTION CASE No.8313 OF 1999 1. BAIDYANATH SINGH SON OF SRI RAMCHANDRA SINGH RESIDENT OF VILLAGE BHUALI TOLA, P.S. YADAVPUR, DISTRICT GOPALGANJ. 2. RAMESHWAR SINGH SON OF LATE MUNNILAL SINGH RESIDENT OF VILLAGE UDANTRAIKA BANGO P.S. THAWA, DISTRICT GOPALGANJ. 3. HARI PRAKASH SINGH, SON OF SRI BADASH SINGH RESIDENT OF VILLAGE – GHAINPATTI, P.S. GOPALGANJ, DISTRICT GOPALGANJ. 4. RAMAKANT TIWARI @ RAMAKANT NATH TIWARY SON OF SRI DURGANATH TIWARY, RESIDENT OF VILLAGE BHOJPUR, P.S. AND DISTRICT GOPALGANJ. 5. RAMESH PANDEY SON OF SRI DINA PANDEY, RESIDENT OF WARD NO. 5 HAZIPUR, DISTRICT GOPALGANJ. 6. HARISHANKAR PRASAD SINGH, SON OF SRI TARKESHWAR PRASAD SINGH, RESIDENT OF VILLAGE DHANHA, P.S. DHANHA, DISTRICT WEST CHAMPARAN. 7. SHAILENDRA KUMAR SINGH, SON OF SRI JAGAT NARAYAN SINGH, RESIDENT OF WARD NO. 1 WITHIN THE MUNICIPALITY OF GOPALGANJ, P.S. AND DISTRICT GOPALGANJ. 8. AARTI SINGH, DAUGHTER OF LATE RAM KRIPALU SINGH AND WIFE OF BAIDYANATH SINGH, RESIDENT OF VILLAGE BHUWALI TOLA, P.S. YODOPUR, DISTRICT GOPALGANJ. 9. ASHOK KUMAR MISHRA, SON OF SRI RAM MISHRA, RESIDENT OF BLOCK MORE, WARD NO. 7 P.S. AND DISTRICT GOPALGANJ. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER –CUM- SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE CHANCELLOR, UNIVERSITIES OF BIHAR, RAJ BHAWAN, BIHAR, PATNA. 3. THE J.P. UNIVERSITY, CHAPRA THROUGH ITS REGISTRAR, CHAPRA 4. THE VICE CHANCELLOR, J.P UNIVERSITY, CHAPRA 5. THE REGISTRAR, J.P. UNIVERSITY, CHAPRA 6. THE PRINCIPAL, GOPALGANJ COLLEGE, GOPALGANJ 7. BABA SAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR THROUGH ITS REGISTRAR. For The Petitioner : Mr. Rajendra Pd. Singh, Sr. Advocate. Mr. Janardan Pd. Singh, Advocate Mr. DIPAK KUMAR, Advocate For The Respondent No. 1. : Mr. A. Amanullaha (SC – 17) Mr. M.K. Pathak (AC to Sc 17 Mr. Aruan Kumar (AC to SC 17 For the Respondent No. 3. Mr. Shivendra Kishore, Advocate. For the Respondent No. 7. Mr. Ajay Bihari Sinha, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA Shailesh Kumar Sinha,J The petitioners are aggrieved by the letter no. E/2562 dated 26th of April 1999 (Annexure-25) 2 of Registrar of the respondent Jai Prakash University sending report to the State Government that appointment of the petitioners can be held to be illegal for being made in violation of the laid down procedures. The petitioners pray for quashing of the aforesaid letter with further prayer to direct the respondents to regularise their services with consequential benefits of the respective posts held by them and make payment of arrears of salary. According to petitioners, they were appointed on different non-teaching posts as indicated in their respective appointment letters between the period April 1979 to May 1983 by the Principal of the Gopalganj College, District Gopalganj subject to the approval of the Advisory Body/Syndicate of the Bihar University and the State Government, in the prescribed scale of pay, vide Annexure- 2 series. Petitioners immediately joined their respective posts. The respondent the then Bihar University approved the appointments which would be evident from the letter of the University vide letter no. B/3759 dated 12.8.1984 (Annexure-35), the letter no. B/7308 dated 15.04.1990 which finds reference in the letter of the University vide Annexure-24 as also the letter no.490 dated 2.6.1998 of the J.P. University (Annexure 18). The petitioners 3 worked continuously on their posts for long time but no action being taken for their regularization in service, they filed writ application for redressal of the aforesaid grievances in this Court vide C.W.J.C. No. 1739 of 1994 disposed of with certain observation and permitting the petitioners to file representation before the Vice- Chancellor of the University vide order dated 07.07.1994 (Annexure-12). The petitioners accordingly filed their representations. The J.P. University vide letter dated 07.09.1994 (Annexure-32) recommended the State Government for regularization of the services of the petitioners with all requisite supportive documents. The State Government did not take any decision for about more than two and half years as such the petitioners having no alternative filed second writ application vide C.W.J.C. No. 8915 of 1997 disposed of on 24.11.1997 with the following observations/directions vide Annexure – 17. “ Today the case was taken up, the counsel for the parties agree that the case of the petitioner are covered by Full Bench decision of this court given in the case of Braj Kishore Singh reported in 1977 4 (Vol-1) P.L.J.R. ). 509. Accordingly, the writ petition is disposed of with same and similar observation and direction as made by Full Bench decision of this court in the case of Braj Kishore Singh ( Supra). The respondent J.P. University is directed to take into not the staffing pattern and after necessary enquiry decide the total strength of non-teaching employees, which are deemed to be sanctioned and/or sanctioned with respect to the college in question. Such decision is to be taken within a period of three months from the date of receipt/production of a copy of this order. Thereafter the University will make appropriate requisition from the respondent State for release of fund for such sanctioned post/the post to be treated to be sanctioned. The State of Bihar will act on the basis of 5 such requisition and release appropriate fund in favour of the respondent University within a period of three months from the date of receipt of such requisition. It is needless to say that on the receipt of the fund, the respondent University will decide the cases of persons who are working against such sanctioned/deemed sanctioned posts and regularize their services and release the admitted arrears of salary.” The respondent J.P. University considering the aforesaid representation recommended the case of the petitioners for regularization to the state Government with all the relevant details required by the State Government in its different letters vide letter no. 490 dated 2.06.1998 (Annexure-18), followed by letters no. 942 dated 10.09.1998 (Annexure-20) , letter no. 1397 dated 03.12.1998 (Annexure- 24 ). The State Government instead of approving the regularization again issued certain letters to the University vide letters no. 384 dated 20.04.1999 and letter no. 1820 dated 17.11.1998 as referred in the 6 impugned letter although not on record nor the contents were made known to the petitioners. The J.P. University after taking note of the facts informed the State Government that all the teaching and non teaching employees of the constituent college now falling under its jurisdiction were paid their salary by the Parent University i.e Bihar University and after establishment of the J.P. University, the payments were made on the basis of the statement furnished by the concerned colleges falling under the J.P. University and the same was being the position of the Gopalganj College, Gopalganj as well where the petitioners were working . The J.P. University however submitted report to the State Government that the appointment of the petitioners as per the Annexure-2 series can be held to be illegal for being made in violation of the laid down procedures. Mr. Rajendra Prasad Singh Senior Advocate appearing for the petitioners submits that appointments of the petitioners by the Principal of the College were validly made since he was admittedly authorized by the Vice-Chancellor of the Bihar University on the posts sanctioned/deemed to be sanctioned under the scheme of staffing pattern approved by the State Government. Subsequent 7 thereto, the state government took a policy decision as per its resolution contained in memo no. 989 dated 10.05.1991 (Annexure-7) published in Bihar Gazette specific decision was taken as per clause 4 (6) of the said resolution that the non-teaching employees working from before 10.05.1986 will be allowed to continue in service even in absence of availability of the post under the staffing pattern and their services shall be regularized against the vacancies made available in future. However, any such employee appointed after 10.05.1986, his services shall be terminated. It is submitted on behalf of the petitioners that they were appointed admittedly much prior to 10.05.1986 and as such their services were required to be regularized moreover the petitioners were appointed against the sanctioned post/deemed post under staffing pattern. Any withdrawal of above policy decision in the year 1996 after issuance of the aforesaid resolution dated 10.05.1991 (Annexure-7) shall not affect the claim for regularization as per the resolution dated 10.05.1991. The withdrawal of the said resolution was considered by the Full Bench of this court in the case of Braj Kishore Singh Versus State of Bihar & Ors. reported in 1997 (1) PLJR 509 vide paragraphs 18 and 20 the relevant extracts are quoted below :- 8 Paragraph – 18 “Another document which may be noticed is the resolution of the State Government contained in Memo No. 989 dated May 10, 1991 of the Human Resources Development Department, which is part of Annexure- 17 to the writ petition (at pages 108-109 of the paper book). The very opening paragraph of the aforesaid resolution mentions that staffing pattern based on the recommendation of the Bihar Inter University Board with respect to non- teaching staff of different categories has been circulated. The resolution further states that having reconsidered the matter regarding staffing pattern, the State Government decided to create the posts on the basis of the staffing pattern circulated earlier, the details whereof are mentioned in the appendix. A salient aspect of the aforesaid resolution is that by that resolution the State Government also communicated its decision to allow such employees who were working since prior to May 10, 1986 beyond the staffing pattern, to continue until they are adjusted against 9 vacancies occurring in future; while services of the persons appointed after the said date i.e. May 10, 1986 were to be terminated. Paragraph 20 :- It would not be out of place to mention here that the aforesaid resolution dated May 10, 1991 has since been recalled on January 9, 1996. From Perusal of the file of the Human Resources Development Department (File No. 14/MI- 044/91) in which the aforesaid decision has been taken, it appears that in cancelling the previous resolution dated May 10, 1991 the State Government took into account the financial burden involved in the matter of regularization of the existing employee. Prima Facie, the aforesaid decision dated January 9, 1996 does not appear to be reasonable. While taking the decision contained in resolution dated May 10, 1991, the State Government was fully conscious of the need to adjust existing hands against the posts within the staffing pattern, leaving individual disputes to be sorted out individually at the appropriate levels. In the present case, however, it may not be 10 necessary to go into the correctness or otherwise of the aforesaid decision dated January 9, 1996 in a full-fledged manner as, in my opinion the same does not stand in the way of these appellants or other similarly situate person in getting the reliefs. The decision as contained in resolution dated May 10, 1991, as noticed above, was in two parts; the first part related to regularization of the services of the existing employees against the posts within the staffing pattern; the second part provided for continuance of the excess/surplus staff, working from before May 10, 1986 (i.e. those who had already completed 9 years or more in service) until they are adjusted against future vacancies. These appellants claim to have been appointed against sanctioned posts. If the posts against which they were appointed, fall within the staffing pattern, there was no question of their regularization, questions of eligibility and suitability apart, and, therefore, the State Government cannot decide unilaterally to terminate their services, irrespective of whether a formal 11 decision to regularize their services was taken on May 10, 1991 or not”. It is further submitted that the State Government instead of regularizing the services of the petitioners sat tight over the matter and as such petitioner’s having no alternative filed the aforesaid 2nd writ petition vide C.W.J.C. No. 8915 of 1997 which was disposed of by order dated 24.11.1997 (Annexure- 17). Learned counsel for the petitioner submits that after the aforesaid decision of the court, the respondent J.P. University again after making necessary enquiry sent its report vide Annexure- 18 with recommendation to the State Government that the petitioners were appointed between the period 01.04.1979 to 04.06.1983 under staffing pattern scheme of the Government with the relevant details. It was also stated that the University (the then Bihar University) at the material time had approved their appointments and sought for approval of the State Government which was still awaited resulting into non- payment of their salary from November 1991 as prior to that the wages were paid from the college fund. It was also stated there in that pursuant to the order of this court, the matter was enquired into and after due 12 enquiry as also on receipt of report from the principal of the College it transpired that the petitioners were working in the college continuously from the date of their respective appointments. The J.P. University again on receipt of certain query from the State Government as per its letter dated 19th August 1998 (Annexure-19) reiterated its earlier conclusion and furnished the necessary details point wise required by the State Government vide letter no. 942 dated 10.09.1998 (Annexure-20) however, thereafter nothing happened except petitioners continued to represent their grievances. The State Government again sought certain information as per its letter no. 718 dated 16.11.1998 (Annexure-23) The University replied as is letter no. 1397 dated 03.12.1998 (Annexure-24) item wise and justified its earlier recommendation stating therein that the petitioners were appointed under the staffing pattern and requested the State Government to accord approval of the appointments with release of fund in order to make payment of the arrears of salary of the petitioners. Thereafter, on receiving certain instructions from the State Government although not brought on record after more than 4-5 months, the J.P. University took round and reversed all its decision with regard to the appointment of 13 petitioners and their regularization thereby withdrawing all its earlier recommendations. It is submitted that the respondent J.P. University was not justified in law to reverse his decisions and withdraw all the previous recommendations which were made earlier after due enquiry and on verification of record pursuant to the order of this court. The learned counsel also drawn attention of the court to a decision of this court rendered in two writ petitions vide C.W. J.C. No. 882 of 1998 and C.W.J.C. No. 834 of 1999, in the similar facts and circumstances of the case of the two colleges under the J.P. University, the writ petitioners of C.W.J.C. No. 834 of 1999 where the non-teaching employees appointed by the principal of the Gopalganj College where the petitioners were also working between the period 01.04.1979 to 27.05.1982 vide judgment dated 19th of May 2000 (Annexure-36). Pursuant to the decision services of some of the petitioners of the said case were regularized. It is further submitted that in the aforesaid judgment, court took into note the scheme of regularization as per policy decision of the State Government vide resolution no. 10th of May 1991 (Annexure-7) and held to the effect that the petitioners having engaged prior to 10th of May 1986 in the exigencies of work, they have 14 right to be considered for regularization of their services/absorption against the sanctioned post/ deemed to be sanctioned under the staffing Pattern and since the petitioners having appointed after local advertisement on the recommendation of the selection committee and for having work for more than 18-23 years and the University having knowledge of the same for the last more than 15 years. Now it is not open to raise the question of legality and propriety of their initial appointment for the purpose of considering their cases for regular appointment by way of regularization/absorption. The full Bench decision in the case of Braj Kishore Singh (Supra) the hon’ble court had earlier taken a similar view having regard to the fact that the appellants of the said case have been continued in service for more than 17 years, the Hon’ble court did not think appropriate to exercise its discretion to allow reopening the matter after a such long time taking note of the decision of the constitution bench of the apex court in the case of direct recruitment for the post of Class- II employee ( Officer Association Vs. State of Maharastra reported in AIR 1990 SC 1607). The petitioner accordingly prays for quashing of the aforesaid impunged order dated 26.04.1990 (Annexure-25) and for directing the 15 respondents for regularization of their services and payments of the arrears of salary. No counter affidavit has been filed either on behalf of the State of Bihar or B.R. Ambedkar University (earlier Bihar University). Mr. A. Amanullaha, the learned Standing Counsel No. 17 appearing on behalf of the State however submits to the effect that in view of the report of the respondent J.P. University that the services of the petitioners can be held to be illegal as contained in Annexure- 25, as such the petitioners are not entitled to be regularized. Mr. Ajay Bihari Sinha learned counsel appearing on behalf of the respondent no. 7, the then Bihar University submitted that the impugned letter has been issued by the respondent J.P. University and as such it is for said university to justify its decision in question. The respondent J.P. University however has filed a counter affidavit followed by supplementary counter affidavit. The stand is to the effect that the entire matter was examined again on receiving the letters from the State Government as mentioned in the impugned letter dated 26.04.1999 (Annexure-25). Mr. Shivendra Kishor learned counsel appearing for the J.P. University submits that the petitioners were 16 appointed without following the laid down procedures including the advertisement in the newspaper at the state level and also without constitution of the Selection Committee followed by interview. Besides the above, the appointments were made against un sanctioned post accordingly their claim for regularization was not tenable in law. It is further submitted that the order of this court as contained in Annexure – 36 was implemented as per the direction/observation consequent upon the dismissal of the appeal vide L.P.A. No. 855 of 2000 and 856 of 2000 and dismissal of SLP No. 7125 of 2000 filed by the University vide order dated 20.08.2001. It is lastly submitted that after implementing of the orders as contained in Annexure-36, presently no vacant posts of Class –III and Class – IV in terms of staffing pattern are available in the Gopalganj College Gopalganj. The learned counsel in support of his case relies a decision of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006(2) PLJR 363 (SC) refers to paragraph 5, 30, 31 and 34 and also the decision of the Apex Court in the case of Ranjeet Kumar Singh & Ors Vs. State of Bihar reported in 2004(4) PLJR 567 and Nawal Kishore Singh Vs. State of Bihar & Ors. reported in 2009 (3) PLJR 956. 17 Upon considering the rival submissions and their respective pleadings as also subsequent affidavit the fact of appointment of the petitioner on different posts between the period 01.04.1979 and 26.05.1983 on Class III/IV by the principal of the college as per the appointment letters vide Annexure-2 series are not in dispute. The claim of the petitioners that they are still in service and not terminated as yet has not been controverted by producing any letter of termination of the services of the petitioner. As a matter of fact the impugned letter (Annexure-25) is merely a report submitted to the State Government that the appointment of the petitioner can be held to be illegal. It is also not in dispute that after the appointments in question the same was approved by the then Bihar University and recommended to the State Government for its approval of the appointments and the post on which petitioners were working vide letter no. B/7308 dated 18.04.1990 followed by the letters no. 6059 dated 17.09.1994, letter no. 4399 dated 07.12.1995 letter no. 2600 dated 11.05.1996 (Annexures 32, 33 and 34 respectively) written by the J.P. University which finds reference vide its letter no. 942 dated 10.09.1998 as also in the impugned letter (Annexure-25), However much prior to it the Bihar 18 University vide letter no. B/3759 dated 12.08.1984 (Annexure-35) in reply to the principal of the college in question regarding payment to the non-teaching employees stated that appointments made by him with the help of Selection committee and on advertisement between the period August 1977 and June 1983 might be justified within the staffing pattern, however, the payment of salary can be made in the prescribed scale of pay only after approval of the State Government and the receipt of grant for the said purpose. From the said letter also it would appear that the Bihar University virtually accorded the approval of the appointments of Class III and IV employees made by the Principal. Later on, the petitioners were paid wages on daily basis although appointed on prescribed pay scale and continued to be paid till some time between November 1991 and December 1992. There is another important aspect of the matter is that similar grievances of the such employees were being agitated throughout Bihar. The State Government and the Bihar State University and Colleges employees Federation entered into an agreement on 26.04.1989 with regard to appointment of regularization vide Annexure-1. The Apex Court on a writ petition (C) No. 409 of 1991 filed by the aforesaid federation in the 19 matter of such appointment in the Ranchi University, directed for considering the case of absorption strictly in accordance with the terms and conditions of the aforesaid agreement dated 26.04.1989 providing for regularization after the necessary enquiry by the University vide annexure- 8. The Principal of the College as per its letter no. P/504-89 dated 03.09.1989 to the Deputy Registrar –I of the then Bihar University again submitted the list of the Class –III and class -IV employees appointed under the staffing pattern in the college containing the name of the above writ petitioners vide Annexure-6. Subsequently the State Government took a policy decision as per its resolution contained in Memo No. 989 dated 10.05.1991 vide Annexure-7 with regard to the sanction of the post of non teaching employees on the basis of staffing pattern. As per the said Policy decision, a very specific decision was taken that such employees who were working from before 10.05.1986 shall be allowed to continue in service even in absence of the post available under the staffing pattern and their services shall be regularized against the vacancies becoming available in future. However, persons appointed after 10.05.1986 shall be terminated. It is not in dispute that all the writ petitioners were appointed between the period 1.04.77 20 to May 1983 i.e. much prior to the aforesaid date 10.05.1986 and as such their appointment and continuing in the service gets otherwise also approved by the State Government as per the aforesaid policy decision contained in memo No. 989 dated 10.05.1991 (Annexure-7) and became entitled to regularized on issuance of said policy decision. The respondent J.P. University in the counter affidavit in paragraph 16 stated that the aforesaid resolution of the government dated 10.05.1991 was recalled although no details of such withdrawals are stated in the counter affidavit or supplementary counter affidavit nor the said document was brought on record. However, in the case of Braj Kishore Singh, (supra) the full Bench of this court took notice of the aforesaid resolution dated 10.05.1991 and its withdrawal on 9th of January 1996 in paragraph 18 and 20, the relevant extract which has been quoted in foregoing paragraph. The Full Bench of this court observed that prima facie the withdrawal of decision is not reasonable after taking into note the reason for withdrawal assigned by the government being the paucity of fund. In my opinion withdrawal of the aforesaid policy decision issued as per the resolution dated 10.05.1991 in