IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10032 of 1999 DR.GIRINDRA NATH JHA & ORS Versus THE CHANCELLOR L.N.M.UNIVERSIT ----------- 7. 18.07.2008 Heard learned counsel for the petitioners, for the University and for Respondent no. 1, the Chancellor. In pursuance of an advertisement and selection, the petitioners were appointed as Lecturer in temporary capacity on sanctioned vacant post A Screening Committee constituted for the purpose recommended their absorption. Under the existing Statutes the Hon’ble Chancellor accepted the recommendation and approved absorption on 3.2.1998. Mere issuance of a formal notification for absorption remained, when it transpired that a person recommended at serial 20 had already been terminated. The Hon’ble Chancellor then directed cross-checking of the list of persons recommended to remove any more defects. While the matter rested at this stage a Division Bench of this Court in a judgment reported in 2001(2) PLJR 817 (Dr. Shiv Narain Yadav & ors. V. The State of Bihar & ors.) in the context of regularization of temporary lecturer under the existing Statutes on or before 28.2.1982, as approved by the Chancellor as the statutes existed on 29.1.1986 held the statutes to be unconstitutional. However, an exception was provided in paragraph 17 of the judgment that regularization matters finally concluded shall not be reviewed or recalled but that only pending cases shall be considered and disposed in accordance with law laid down by the Division Bench. - 2 - Thereafter the University after cross-checking forwarded the original list of recommendations earlier approved by the Chancellor on 3.2.1998. The petitioners were, however, told by communication dated 5.4.2005 that in view of the judgment in the case of Dr. Shiv Narain Yadav (supra) it was not possible to act upon the aforesaid recommendations and that they should seek their remedies before this Court. Learned senior counsel, Sri Basant Kumar Chaudhary, for the petitioners, submitted that the case of the petitioners falls in the exception carved out in paragraph 17 of the Division Bench judgment. A decision for their absorption had already been taken and ordered by the Chancellor on 3.2.1998. The only formality of a formal notification for absorption remained. The University was only required to cross-check for any more errors. There has been no fresh screening or consideration or application of mind for absorption. The cases of the petitioners were, therefore, not pending for consideration for absorption on the date when the Division Bench judgment came. One Smt. Mala Verma whose name likewise was recommended and approved on 3.2.1998 has been given the benefit of absorption when the petitioners are being discriminated. Sri Shivendra Kishore, learned counsel appearing for the Hon’ble Chancellor as also for the University urged that at the time when the judgment of Dr. Shiv Narain Yadav (supra) came to be pronounced, no finality had been achieved for absorption with regard to the petitioners. The matter was kept in abeyance for cross-checking. - 3 - The case of Smt. Mala Verma was different inasmuch as there was an order of this Court in CWJC No. 65 of 1983 on 23.9.1996 and in pursuance of which her recommendation was made on 3.2.1998. This Court is satisfied that the decision with regard to absorption of the petitioners stood taken on 3.2.1998. Mere act of cross-checking thereafter does not create a new era of screening and consideration for the purpose of absorption. The decision for absorption having been taken on 3.2.1998, only the issuance of a formal notification remained delayed due to cross-checking. The petitioners, therefore, clearly fall within the exception of paragraph 17 of the Division Bench judgment in the case of Dr. Shiv Narain Yadav (supra). That Smt. Mala Verma may have moved this Court for such absorption when this Court so directed in 1996 and in pursuance of which her case was recommended along with the petitioners on 3.2.1998 is of no avail to the Respondents. Her name was also kept in abeyance for cross-checking like the petitioners. The judgment in her case was rendered by Hon’ble Single Judge. Notwithstanding the subsequent decision of the Division Bench to the contrary before issuance of notification for absorption of Smt. Verma came to be issued on 16.5.2005, the Respondents did not consider it necessary to deny her the benefit for reason of the subsequent judgment declaring the Statutes unconstitutional by the Division Bench. Quite obviously, the Respondents were satisfied that Smt. Verma fell in the exception of paragraph 17 of the Division Bench judgment. No plea was taken - 4 - that no orders for her absorption had been passed in pursuance of the judgment of this Court earlier in 1996 and during which period the subsequent judgment of the Division Bench had come and that it was not possible to absorb her any more. To this Court the distinction sought to be made between the case of the petitioners and that of Smt. Mala Verma does not hold good. In light of the aforesaid discussion, the Respondents are not justified in their communication dated 5.4.2005 in refusing to issue necessary orders for absorption in pursuance of the decision dated 3.2.1998. This Court having held that the petitioners fall in the exception carved out in paragraph 17 of the judgment of Dr. Shiv Narain Yadav (supra), let the appropriate notification with regard to them be issued in accordance with law expeditiously. The writ application is disposed off. AKS/ (Navin Sinha, J.)