IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8549 of 2008 MOST KUMARI RANJANA, W/O LATE YOGENDRA YADAV, R/O VILLAGE-NATHAPUR (CHAPRA TOLA), P.O.- NARPATGANJ, P.S.-NARPATGANJ, DISTRICT-ARARIA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF HIGHER EDUCATION. 2. THE CHANCELLOR OF UNIVERSITY, B.N.MANDAL UNIVERSITY, RAJ BHAWAN, PATNA. 3. THE VICE CHANCELLOR, B.N.MANDAL UNIVERSITY, LALUNAGAR, MADHEPURA. 4. THE REGISTRAR, B.N.MANDAL UNIVERSITY, LALUNAGAR, MADHEPURA. 5. THE PRINCIPAL, GORELAL MEHTA COLLEGE, BANMANKHI, PURNEA. ……………RESPONDENTS. ----------- 2 21.07.2011 From the facts appearing from the records, it appears that the petitioner was appointed on 17.05.1989 on daily wages as Routine Clerk. As per her case, her services were terminated with effect from 06.02.2011. It appears that the petitioner moved this Court against said termination of her services through CWJC No.8413 of 2001. Her writ application was taken up by this Court on 12.07.2007 on which date learned counsel for the petitioner informed this Court that the petitioner proposed to file a representation before the Vice- Chancellor of the University for redressal of her grievances. Accordingly, this Court directed that, if the petitioner files 2 representation, the Vice-Chancellor shall consider the same and pass a reasoned order in accordance with law preferably within a period of three months, and dispose of the writ application. Subsequent to the said order, petitioner filed her representation before the Vice-Chancellor which has been rejected by a reasoned order, vide impugned Annexure-1. In the impugned order, the Vice-Chancellor has noticed that the father of the petitioner joined in the college as Principal on 15.05.1989. He constituted a Three Men Selection Committee of teachers of the College and the petitioner was appointed on 17.05.1989, i.e. only two days after her father joined the College as Principal. In the order, Vice-Chancellor has noticed that time to time State Government issued directions for cancellation of illegal appointments. It is also noticed in the order that, as per the successor principal, it was discovered that the petitioner had worked in the college only till 06.05.1998. The Vice-Chancellor has noticed the provision of Section 35(3) 3 of the Bihar State Universities Act and the judgment of the Constitution Bench rendered in the case of Secretary, State of Karntaka Vs. Uma Devi (3) and has found that the appointment of the petitioner was by an unauthorized person on an unsanctioned post in violation of Government orders, Rules and Regulations and without following the laid down procedure and rules of the reservations. Thus he has found that the appointment of the petitioner was totally illegal and therefore has rejected the representation. Learned Senior Counsel for the petitioner submits that the petitioner was appointed on 17.05.1989. Her appointment was cancelled on 06.02.2001. Hence, she had continued for more than 10 years. In the circumstances, she is covered by the observations of the Constitution Bench [2006(2)PLJR (SC)363] made in paragraph 44 wherein, as one time measure, the authorities have been directed to consider the cases of employees, continuing on daily wages for more than 10 years and whose appointment was found only irregular for 4 their regularization. Learned counsel also relies upon a later judgment of the Apex Court in the case of State of Karnatka Vs. M.L.Keshri and others [2010 (9) SCC 247] to contend that the observations of the Constitution Bench was watered down and subsequently the Apex Court has found that if an incumbent was appointed by the competent authority and against sanctioned post infraction of rules and regulations in respect of procedure of appointment will only render the appointment irregular and not illegal. In the opinion of this Court, the submission of learned Senior Counsel for the petitioner has no force. The observations of the Constitution Bench made in paragraph 44 of the judgment is to be applied to the cases in which the incumbents have continued and had completed 10 years or more in service as on the date of the Constitution Bench judgment i.e. 10.04.2006 and their initial appointment was found only irregular (and not illegal). Petitioner’s services were admittedly terminated more than six years 5 earlier to the Constitution Bench judgment. Moreover, the facts show that the petitioner was not working after 06.05.1998. Thus the actual period of service of the petitioner stands reduced to less than 10 years. The observations of the Constitution Bench cannot be applied retrospectively so as to give liverage to the employees who may have been illegally appointed and continued for 10 years or more and thereafter were terminated at any point of time much prior to the Constitution Bench judgment. The judgment of the Apex Court in the case of M.L.Keshri (supra) is also of no benefit to the petitioner. In the M.L.Keshri (supra) the Apex Court has only laid down that the violation of rules and regulations of the Government in respect of procedure of appointment will only be irregular and not illegal. However, in the said case also, the Apex Court has held that the appointment must be by a competent authority and against sanctioned post. On her own showing, the petitioner was appointed as a routine clerk which is a 6 class-III post. Learned Senior Counsel for the petitioner could not show any statute of the University, in operation during the relevant period, which contains any provision empowering a principal of the college to make appointment on class-III post in a college without sanction and approval of the University. It is well known that on class-III post in a college under the University, it is only the University which is competent to make appointment. Hence, clearly the appointment of the petitioner was not by the competent authority. In fact the father of the petitioner, just within two days of his joining in the college as principal, got her appointed on class-III post. Clearly the same was also mala fide. In the circumstances, this Court does not find any merit in the writ application and the same is dismissed. Arvind/ ( J.N. Singh, J.)