IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6880 of 2006 NAKUL MANDAL son of Late Balram Mandal, resident of village Sahibganj, Police Station Kotwali, District Bhagalpur. Versus 1.THE STATE OF BIHAR through the Secretary, Higher Education, Human Resources Department, Government of Bihar, New Secretariat, Patna. 2.The Director, Higher Education, Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 3.Tilka Manjhi Bhagalpur University through its Vice Chancellor, Bhagalpur University. 4.The Registrar, Tilka Manjhi Bhagapur University. 5.Finance Officer, Tilka Manjhi, Bhagalpur University. 6.The Principal, Tilka Manjhi Bhagalpur College, Bhagalpur. 7.The Superintendent of U.G.C. Hostel Tilka manjhi, Bhagalpur College, Bhagalpur. ----------- 2 16.8.2010 Heard counsel for the petitioner and counsel for the Bhagalpur University. Prayer of the petitioner in this writ application reads as follows:- “That by this writ application the petitioner pray for payment of salary which has been withheld with effect from 31st August 1999. The petitioner also pray for direction upon the respondents for payment of current salary and arrear of salary as he is regular employee of the Hostel and entitled for payment of salary which has been withheld without any valid reason or issuance of an order, direction Commanding the respondent authorities to make the payment of the other admissible dues and allowance i.e, Dearness allowance, interim relief etc. which is illegally withheld by the respondents authorities.” Counsel for the petitioner in support of the aforementioned prayer would rely on the office order no.72/94 dated 23.7.1994 (Annexure 4) for claiming payment of salary for the period in question. He would submit that the petitioner was validly appointed as DARBAN on the post created in U.G.C. 2 Hostel and therefore when the Principal of the College in terms of the decision of the University has already absorbed his services w.e.f. August, 1981 and in fact regularized his service as is import of the order contained in Annexure 4, the petitioner on account of his continued working against the said post by virtue of regularization of his service would be entitled for payment of salary both arrears and current as claimed by him in this writ application. Mr. Ashok Kumar Keshri, learned counsel appearing on behalf of the University has raised preliminary objection with regard to the writ petition being belated and thus also fit to be dismissed on the ground of its being hit by the principle of delay and laches. In this context he would submit that the petitioner has filed this writ application after unexplained delay of more than seven years and as such the same is not maintainable. Counsel for the petitioner, however, immediately would point out that the petitioner has been paid his salary from 1994 to 1999 pursuant to the order of regularization and when payment of his as well as of others‟ salary had been stopped, his association and other employees had moved this Court in C.W.J.C. No.3497 of 2000, which after remained pending for almost six years was dismissed in the year 2006 by order dated 20.1.2006 on the ground that such Association was an unregistered association and therefore it could not have maintained a writ petition espousing the cause of the petitioner and others. 3 In the opinion of this Court, explanation given above by the petitioner is sufficient for holding the writ petitioner to be maintainable, inasmuch as, way back in the case of „Fertilizer Corporation Kamgar Union, Sindri Vs. Union of India’ reported in A.I.R. 1981 S.C. 344 the Apex Court had observed that even an unregistered association can take up a common cause, which in this case was for payment of salary of all the working employees of the University. Therefore, if the petitioner had genuinely waited for result of the aforementioned writ application from 2000 to 2006, it cannot be said that he was sleeping over his rights. Mr. Keshri then would submit that Annexure-4 was issued by the Principal of the College who was never authorized for regularization of services of the petitioner. This Mr. Keshri says either on the basis of oral instruction or on his experience, but then there is no counter affidavit to this effect disowning the effect of the order passed by the Principal of the College. It is therefore very difficult to accept such oral submission on the part of counsel for the University which now has almost become practice before this Court. Coming to the last submission of Mr. Keshri that the similar cases with regard to payment of salary filed by the individuals has been rejected by this Court, could also could be better appreciated if the University had taken this plea by filing a counter affidavit and therefore it is very difficult for this Court to 4 understand whether the case of Permand Singh and others, Sahdeo Raut & Ors, Jyoti Pandey, whose orders in their respective writ petitions have been made sheet anchor by the learned counsel for the University were similarly situated persons like the petitioner whose services were regularized by the Principal of the College in the light of the decision of the University. The University and its counsel can understand similarity in such cases, but then this Court will have to record findings on the basis of the material on records and as noted above, nothing has been brought on record on behalf of the University in this case which can at least go to show that the case of the petitioner is identical to C.W.J.C. No.12500 of 2000 and C.W.J.C. No.7802 of 2002 both of which were dismissed by a common order dated 7.2.2003 after noticing that as against 548 posts recommended for hostels including 400 for U.G.C. and 144 for non U.G.C. hostel, but the State Government has sanctioned only 43 posts by leaving all other posts to be of out sourced. There is also nothing on record to show that the petitioner will not come within the 43 posts or how the University having allowed regularization of service of the petitioner, which was also never cancelled by the University had treated him whether against those 43 sanctioned posts or alike others to be unsanctioned posts. The specific case of the petitioner is that he was working as DARBAN on a duly created and sanctioned post. Therefore, even if for those 43 posts any decision by excluding the petitioner was taken by the University it had to follow the 5 principles of „last come first go‟ in the matter of absorption. Nothing however has been brought on the record and counsel for the University would merely insist that this Court should dismiss this writ application either on the ground of delay or on the ground of earlier order of this Court dated 7.2.2002. That however for the reasons recorded above cannot be done. Therefore, this Court would direct the Vice Chancellor of Tilkamanjhi Bhagalpur University to consider the case of the petitioner for payment of his salary for the period in question and if it is found that the petitioner was senior enough on the post of DARBAN to be included against 43 sanctioned posts and yet any junior to him was absorbed and paid salary in preference to the petitioner, the last of such persons will be replaced in place of him and that person will be removed from the service after affording an opportunity of hearing to him and consequently payment of salary of the petitioner if absorbed on such post will be made for the period he had actually worked after receiving the absentee statement from the concerned Incharge of the U.G.C. Hostel. Such exercise must be completed within six months from the date of receipt/production of a copy of this order. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)