IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12827 of 2006 Sheojee Thakur, son of late Ramdeni Thakur, resident of village Kishunpur Madhuban, P.O. Kishunpur Madhuban, P.S. Kurhani, District Muzaffarpur … Petitioner Versus 1. The State of Bihar through Secretary, Human Resources 2. B.R.Ambedkar Bihar University, Muzaffarpur through the Registrar, B.R.A.B.U. 3. The Vice Chancellor, B.R.A.Bihar University, Muzaffarpur 4. The Registrar, B.R.A.Bihar University, Muzaffarpur … Respondents ----------- 3. 1.7.2011 Having heard counsel for the parties and taking into account that the authorities of the University are absolutely callous and indifferent towards its pending litigation before this Court, it would not be prudent to await any further for filing of the counter affidavit, especially when the learned counsel for the University has produced the copy of the statement of fact dated 25.6.2011 which does not even remotely answer the basic relevant issues involved in this writ application. This Court, therefore, while rejecting the prayer for adjournment of this case for enabling the counsel for the University to file its counter affidavit in this five year old case would proceed to decide the matter on the 2 basis of averments made in the writ application. It is not in doubt that the petitioner was engaged on daily wages to work on the post of Peon on 18.3.1980 and has since then been continued in the services either in the College or in the University Head Office. The petitioner on the basis of such daily wages engagement had no other expectation but for being considered for his eventual absorption/ appointment/ regularization on a class IV post as done in cases of other similarly situated daily wages and in fact he having waited for 15 years was given a rough deal by the authorities of the University who in stead of regularizing his service by an order dated 22.2.1995 had regularized Md. Jamil, Md. Jahir, Laxman Sahni and Asharfi Mandal on 38 post of class IV employees of M.B.C. category though all four of them were junior to the petitioner on the basis of engagement on daily wages, inasmuch as they were engaged on daily wages on 11.12.1980, 16.12.1980, 25.12.1980 and 15.3.1981 respectively as against admitted 1st date of 3 engagement of the petitioner on daily wages being 18.3.1980. Thus, it is clear that the petitioner was subjected to discrimination by the authorities of the University on 22.2.1995 when the persons junior to him even in his category as also in other categories were sought to be regularized in service in the pay scale of Rs. 775-1025, whereas the petitioner was given only a fixed honorarium of Rs.975/- per month. The petitioner having found that he was the senior most and ought to have been regularized in the list of 38 persons vide order dated 22.9.1995 had filed his representation which was considered and ultimately after nine years was also allowed by holding the petitioner to be entitled for seniority as daily wages employee from 18.3.1980 but then the authorities of the University did not give the petitioner same benefit of being regularized in service from the date his juniors were given such regularization and had only passed the impugned order that the name of the petitioner would be placed on the top of the list of the person whose services were to be 4 regularized in prescribed pay scale. It, however, appears that the services of the petitioner were ultimately regularized alongwith Sri Narayan Ram and Sri Premlal Yadav with effect from 1.6.2005 in stead of 22.2.1995 as had been done to his junior counter parts including four persons named above. Counsel for the petitioner, therefore, has submitted that when the University has regularized the services of other daily wagers from the date of their initial engagement on daily wages the order of regularization of the petitioner with effect from 1.6.2005 is absolutely unjustified and in fact also arbitrary. Learned counsel for the University has got no answer to the aforementioned submissions, inasmuch as even the statement of fact supplied to him by the Respondent authorities of the University does not deal with this aspect. The statement of fact basically concentrates on the aspect that the engagement of the petitioner on daily wages was unjustified because the Principal of the Head of the Department was not 5 entitled to engage a person on daily wages. In the considered opinion of this Court once the University has passed an order for regularization of services of the petitioner from any date, it cannot now assail the initial engagement of the petitioner on daily wages, especially when the Vice Chancellor of the University by his order dated 21.12.2004 had himself regularized the services of the petitioner on daily wages with effect from 18.3.1980 while directing him to place on the top of the list. In that view of the matter, this Court would find that the petitioner has made out a case for his being regularized in service with effect from 22.2.1995, the date on which his juniors including the aforementioned four persons of Most Backward category were regularized in service. Simply because the University had committed a mistake in not placing the petitioner at the correct position by omitting to consider his engagement on daily wages with effect from 18.3.1980, which it ultimately did so by issuing an order dated 21.12.2004, the 6 petitioner cannot be deprived of the benefit which has been given to his juniors. True it is that none of the four persons have been made party before this Court but then it also cannot be denied by the University that all those persons of Most Backward Class category and in fact 25 in all in the list of regularized service were junior to the petitioner, inasmuch as only few amongst 38 persons had been appointed on daily wages prior to the petitioner. In that view of the matter, this Court would direct the Vice Chancellor of the University to refix the date of regularization of the petitioner at least from the date such regularization has been made of his juniors either in M.B.C. category or in all the categories vide order dated 22.2.1995. In other words, the petitioner would also be entitled for payment of his salary in the prescribed pay scale of Rs. 775-1025 as was extended to his juniors on 22.2.1995. This Court, however, would not be in a position to accept the submission of the learned counsel for the petitioner for 7 his regularization of service with effect from his initial date of engagement on daily wages i.e. 18.3.1980 only on the plea that he was working against the sanctioned post. The sanctioned post was only the basis on the strength of which the petitioner came to be engaged on daily wages but that would not mean that his engagement on daily wages was the substantive appointment which could have enured to his benefit for his service being regularized from the first date of engagement. The sanctioned post in a constituent college or a University in isolation cannot be the mode of regularization and whenever the services of all the daily wagers working in the University or its constituent colleges have to be regularized it is the combined seniority and total vacancies available that has to be made the basis otherwise it would create havoc by allowing and legitimising and engagement of a daily wager by an authority who had no such power to appoint on Class-IV post. In the present case the engagement of the petitioner by the Principal of the College was impermissible 8 in view of section 10(6) of the Bihar State Universities Act because that such power has been vested only in the Vice Chancellor who alone in competent to make appointment on any class III or Class IV post. Obviously the daily wages engagement of the petitioner made by the Principal of the College could not have enured to the benefit of his being regularized in service from the date he came to be inducted on daily wages. At this stage Mr. Prabhu Nath Roy learned Counsel for the petitioner would point out that one Mr. Arun Kumar Singh, who was earlier regularized by the University with effect from 22.2.1995 has been given retrospective regularization with effect from 1.4.1985 and therefore, if he was placed at Sl.No. 105 with his date of engagement on daily wages on 2.11.1982, the petitioner’s daily wages engagement being 18.3.1980 would definitely be given at least the benefit of regularization with effect from 21.4.1985 if not any date earlier. In the considered opinion of this Court this aspect can also be easily answered from the document in question where 9 it has been shown that Arun Kumar Singh was working on fixed salary with effect from 1.4.1985, whereas it is an admitted fact that the petitioner from 16.3.1980 to 22.2.1995 had remained working on daily wages and for the first time stated getting fixed wages from 22.2.1995. In that view of the matter, the case of Arun Kumar Singh, who has also not been made party to this writ application, is not comparable with the petitioner. In nut-shell the petitioner at best would be entitled for his regularization of his service from 22.2.1995, the date on which the other daily wages juniors either in general category or under M.B.C. category got benefit of regularization and consequential payment of their salary in the prescribed pay scales of a Class IV employee. This Court, therefore, would direct the University to reconsider its decision as with regard to the petitioner for regularizing the service of the petitioner with effect from 22.2.1995 with all consequential benefits which has been given 10 to others whose services were regularized with effect from 22.2.1995. Such exercise must be completed within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/