IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4838 of 1998 1. Raja Raman Kumar, son of Shri Kailash Kumar, resident of Village Sihaul, P.S. Bihra, Dist. Saharsa, at present Lab Incharge, Department of Physics, M.L.T. Saharsa College, Saharsa. 2. Rabindra Kumar Singh, son of late Thakur Nagendra Prasad Singh, resident of Mohalla Gangjala, P.S. and Dist. Saharsa, at present Lab Incharge in the Department of Chemistry, M.L.T. Saharsa College, Saharsa. 3. Rishi Kumar Mishra, son of Shri Amarnath Mishra, Resident of Village Bangaon, P.S. Bangaon, Dist. Saharsa, at present Lab Icharge in the Department of Zoology, M.L.T. Saharsa College, Saharsa. --------- Petitioners Versus 1. B.N. Mandal University through its Registrar, Laloo Nagar, Madhepura. 2. The Vice Chancellor, B.N. Mandal University, Laloo Nagar, Madhepura. 3. The Registrar, B.N. Mandal University, Laloo Nagar, Madhepura. 4. The Principal, M.L.T. Saharsa College, Saharsa. 5. Dr. Syed Hussain, Principal, M.L.T. Saharsa College, Saharsa. 6. L.N. Mithila University, Darbhanga, through its Registrar. 7. The State of Bihar through the Principal Secretary cum Commissioner, Human Resources Department, Govt. of Bihar, Patna. -------- Respondents ----------- 14 01.8.2011 Heard Mr. A.K. Upadhayay, learned counsel for the petitioners and Mr. Binod Krishna Jha, learned senior counsel for the B.N. Mandal University. Despite repeated indulgence given by this Court, no one has appeared on behalf of the State of Bihar nor the counter affidavit, as directed in the order dated 4.5.2010, has been filed by the respondent State of Bihar. The three petitioners in this case have jointly prayed for following relief:- “1(i) For issuance of an appropriate order, direction or writ in the 2 nature of mandamus commanding the respondents to immediately pay the arrears of salary to the petitioners as Lab. Incharge of the respective Departments in the MLT Saharsa College Saharsa (herein after referred to as “the College”) which is due since march 1997. (ii) For a direction to the respondents to grant the benefit of past services/experience for the purpose of countering seniority and other benefits. (iii) For a direction to the respondents to regularly pay the current salary with all admissible increments allowances etc. to the petitioners. (iv) For issuance of further writ in the nature of mandamus restraining the respondents from interfering in any manner with the functioning of the Petitioners as regular Lab. Incharge in the respective departments in the College. (v) For commanding the respondents to desist from roving and witch hunting enquiry particularly after the authentic factual position as to the date of appointment of petitioners submitted by the Registrar, L.N. Mithila University.” Mr. Upadhayay learned counsel for the petitioners has submitted that when the appointment of the petitioners on the post of Laboratory In-charge in the department of 3 Physics, Chemistry and Botany of M.L.T. Saharsa College, Saharsa hereinafter referred to as the College, made in between 1.11.1984 to 8.1.1985, has been allowed to continue for more than two decades, the respondents could not have refused regularisation of service of the petitioners specially when the Vice Chancellor of the University in terms of the decision of the State Government contained in Circular dated 10.5.1991 had himself issued a specific order for regularizing the services of the petitioners with effect from 4.9.1996, which was also later on reaffirmed by the Syndicate of the University in its meeting held on 17.9.2003 and was further acted upon by issuance of consequential notification dated 21.10.2003 (Annexure-38). In this regard he has also relied on the official communication made by the Registrar of the University to the Secretary of the Higher Education dated 10.11.2003 (Annexure-39) for establishing that the decision of the Syndicate as with regard to reaffirming the decision of the Vice Chancellor of the University for regularizing the services of the petitioners having been reported to the State Government also did not evoke any 4 adverse response and as such, the petitioners must be deemed to be continuing in service as regular employees of the College specially when there was also an interim order of this Court dated 22.9.1998 in their favour. Mr. Upadhayay in this regard has also contended that while the services of the petitioners have not yet been regularized, persons similarly situated alike them have been given the benefit of regularization and as such, the action of the respondent being discriminatory cannot be countenanced in law. Replying to the aforementioned submission of Mr. Upadhayay, Mr. Jha learned Senior counsel for the University has submitted that the very appointment of the petitioners was void ab initio, inasmuch as, the Principal of the constituent colleges has no power to make appointment on any Class-III or Class-IV post in a constituent College and such power is vested only in the Vice Chancellor of the University under Section 10(6) of the Bihar State University Act. In this regard, he has also pointed out that as no norm of selection was followed by the principal of the college while making initial appointment of the petitioners on the post of 5 Laboratory In-charge, they cannot derive any right for regularization of service. He has also in this connection, placed reliance on the observations made by the Apex Court in the case of Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka & Ors. reported in 1992(2)SCC 29 followed by judgment this Court in the case of Sitaram Thakur Vs. The State of Bihar & Ors. reported in 1994(1)PLJR 77. Commenting further on the alleged letter of regularization of the services of the petitioners dated 4.9.1996, he would submit that the basis for Vice Chancellor to regularize the services of the petitioners was the circular of the State Government dated 10.5.1991 but such circular of the State had already been overruled/withdrawn/ cancelled by the subsequent circular contained in Resolution No. 1881 dated 28.11.1995 and, therefore, any action taken or order passed by the Vice Chancellor on 4.9.196 on the basis of the aforesaid overruled circular dated 10.5.1991 will have no binding effect in the eye of law. He would also submit that as the initial order of the Vice Chancellor dated 4.9.1996 was void ab 6 initio being in teeth of the Government direction contained in subsequent resolution dated 28.11.1995, the re-affirmance by the Syndicate of such a void decision of Vice Chancellor would also be nullity in the eye of law and, therefore, the order passed in pursuance of such decision of the Syndicate by the University vide its notification dated 21.10.2003 would be of no avail specially when the State Government has not sanctioned the requisitioned post of Laboratory In- charge as duly provided and requisitioned by the University in its subsequent letter dated 10.11.2003. In the considered opinion of this Court, regularization of service of an ad hoc employee by itself connotes some sort of deficiency in the initial appointment. In the present case, the petitioners’ long continuation on the post of Laboratory In- charge is sought to be explained by the learned counsel for the petitioners on the ground that after the upgradation of the post of Demonstrator by making them Lecturers, there was no one left to look after the routine work of the Laboratories in Saharsa College, which was one of the oldest 7 institution and a constituent college of the Mithila University having been affiliated in the year 1953 and offering courses upto B.Sc. Honours in the subject of Physics, Chemistry, Botany and Zoology since 1959. The aspect that the post of Laboratory In-charge was unsanctioned on the date of the appointment of the petitioners in fact remains an admitted fact, inasmuch as, the University itself has been still drafting and requisitioning the sanction of post of Laboratory In-charge from the State Government as would be apparent from various communications made by the authorities of college and university from time to time. In this background it has to be held that the State Government ought to have taken a clear decision as with regard to the admissibility of the post of Laboratory In- charge in the different department of Saharsa College. It is well known concept of functioning of the Science wing of any constituent college that the Laboratory cannot work only through teaching personnel including the Lecturers, Readers and Professors inasmuch as there has to be an infrastructure for providing the yeomen 8 service for running the laboratory on day-to- day basis. If for that purpose, the State Government had itself made provision for sanction of the posts of Laboratory Incharge by issuing a Circular in 1979 and the University had been approaching the State Government for sanction of post right from 18.12.1982, the same should have led to a final decision either sanctioning or refusing sanction of such posts for Laboratory Incharge in the college. NO constituent colleges can effectively function if sufficient infrastructure is not created by the State Government which has voluntarily taken the burden upon itself for meeting the entire expenses on its establishment. It is true that in the report of Bandopadhyay Committee it had only recommended staffing pattern for all the constituent colleges but then it is equally true that the State Government has never seriously acted upon such staffing pattern and such consideration has been made by the State Government whenever this Court has directed them to consider the case of absorption/regularization on Class-III and Class-IV post. 9 In that view of the matter, this Court would call upon and in fact direct the principal Secretary of the Human Resources Development Department and the Director, Higher Education, who have not only turned their deaf ears to this Court by not filing the counter affidavit but have also not properly instructed its counsel appearing in this Court, to take a firm decision as with regard to the admissibility and sanction of the post of Laboratory In-charge in the department of Physics, Chemistry, Botany and Zoology in Saharsa College, Saharsa as prescribed by the officials for State Government therefore must consider desirability of creating such post of Laboratory incharge from retrospective effect and at least from the date on which the Demonstrator of the college had become the Lecturer by way of upgradation of their post. If, however, the Government will reject the proposal of the University for creation of the post of Laboratory In-charge, in college it will also give reasons for its decision and communicate it to the petitioners. As is well known, regularization can be made only if there are sanctioned post. 10 The petitioners also do not claim that the post of Laboratory In-charge in the college has already been sanctioned. Their claim, in fact, emanates from the fact that as the work of Laboratories in the Saharsa college, Saharsa was suffering after upgradation of the Demonstrator on the post of Lecturer, the Principal was bound to make some alternative arrangement for running day-to-day affairs of the laboratories in the college and that is how, the petitioners came to be appointed by different orders. The long continuation of the petitioners may not have given any right to them as they had been continuing on daily wages prior to termination of their services on 24.3.2007 under the orders of the Principal of the college in view of the direction given by the University in its notification dated 8.3.2007 but then this much is clear that even till that date, almost all the petitioners had completed 18 to 19 years of service on the post of Laboratory In-charge in the college, of course on daily wages. Considering all these aspects of the matter, when the entry of the petitioners in the college under the orders of the 11 Principal, was in negation to the right of an ordinary citizen granted under Articles 14 & 16 of the Constitution of India, while this Court would find it difficult to issue a direction for their regularization of service also due to want of sanctioned post but, then as this Court in the interim order dated 22.9.1998 had given the petitioners following protection:- “This application will be heard. Since all the respondents are appearing before this Court, no notice need be issued to them. Rule is made returnable within three months. It appears that a similar writ petition being C.W.J.C. No. 3197 of 1997 was filed by one Ram Narayan Thakur and the same has been admitted for hearing by a learned Judge of this Court by an order dated 23-7-1998. Learned counsel for the petitioners submits that during the pendency of this writ petition before this Court, his clients may be paid their salary. This has been very seriously opposed by the learned counsel for the respondents nos. 4 and 5 and the University authorities. Learned counsel for the respondents nos. 4 and 5 submits that the petitioners are not working whereas it is asserted by the learned counsel for the petitioners that they are working. In this view of the matter, it is difficult for this Court to decide the 12 dispute at this stage. The petitioners may be paid on daily wage basis by the respondent authority concerned provided they are doing their duties. It is made clear that if there is valid appointment in favour of the petitioners and the petitioners are willing to work, they will not be prevented from working as such.” it would direct the Vice Chancellor of the University to find out as to whether the petitioners have been working in the college on the post of Laboratory In-charge even till today. In the event it is found that the order of their termination, brought to their notice in the counter affidavit of the University, has not been acted upon and the petitioners are still discharging their function on the post of Laboratory In-charge, they would be allowed to function on the post of daily wages but if it is found by the University that their services have been dispensed with by the aforementioned order of the Principal of the college, he will simply communicate his decision in this regard to the petitioners. The submission of Mr. Upadhayay that this Court by its interim order dated 22.9.1998 had restrained the respondents from 13 removing the petitioners from their service however cannot be accepted. Infact it is the case of the University that even at that point of time when the interim order was passed by this Court on 22.8.1998 the petitioners were not continuing in service and therefore the decision of continuation of services of the petitioners being a question of fact will be required to be gone into separately by the Vice Chancellor of the University who most do so after obtaining a report from the Principal of the college. While doing so, the Vice Chancellor must bear in mind that as the order of termination was allegedly passed on 24.3.2007, the plea taken before this Court by the Respondent University that the petitioners were not working as on 22.9.1998 can not be accepted inasmuch as, if the services of the petitioner had already been terminated in the year 1998 where was the occasion of issuing a fresh order of termination on 24.3.2007?. This Court, therefore, would conclude the whole issue by directing the State Government to decide as to whether there could be sanctioned posts of Laboratory In-charge in view of the staffing 14 pattern which was/is imperative for functioning of the college and if it is found that the petitioners are the sole claimant for the post of Laboratory In-charge in their respective department in view of their order of appointment issued by the Principal of the college, a decision for regularising them in service on the post of Laboratory In-charge would be taken. By virtue of such regularisation, the petitioners shall not get any benefit of arrears of salary and will have to remain satisfied with their release of current salary. As this Court has not interfered in the alleged order of termination of the services of the petitioners and has merely remitted the matter regarding their continuance to the Vice Chancellor of the University, nothing is required to be said at this stage as with regard to the present continuation of the petitioners in service but then if it is found by the Vice Chancellor that the petitioners’ services were not dispensed with by the Principal of the college on the ground of continued functioning of the laboratories of the College, he may allow them to continue in 15 service with the same terms and condition of a daily wager employee till the State Government takes a final decision for regularization of their services. This Court however does not find any merit in the plea of discrimination raised by Mr. Upadhayay, learned counsel for the petitioners, inasmuch as, there is no such plea in the writ application. It will be, however, open to the petitioners to demonstrate before the authority of the University and the State Government in his representation that persons similarly situated alike him, who were also appointed initially on the post of Laboratory In-charge in the same transaction as that of the petitioners, have been already regularized in their service with consequential benefit of payment of salary from the date of their regularization. It goes without saying that in the event, the petitioners would raise the plea of discrimination, the same would also be given due consideration by the respondents while taking a final decision as with regard to the regularisation of service of the petitioners. In order to expedite the matter, 16 this Court would give liberty to the petitioners to file their fresh separate self-contained representations enclosing documents relating to their educational qualification as also a copy of this order before the Registrar of the University whereafter the Registrar, having obtained the approval of the Vice Chancellor, shall place the matter before the State Government for taking a final decision as with regard to the regularisation of the petitioners in the service of the college in the light of the observations and direction made above. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)