IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3197 of 1997 RAM NARAYAN THAKUR, S/O SRI DUKHA THAKUR, R/O VILLAGE MURADPUR, P.S NAWHATTA, DISTRICT SAHARSA, AT PRESENT WORKING AS PEON MANOHAR HOSTEL, SAHARSA COLLEGE SAHARSA. …………………PETITIONER. VERSUS 1.THE BUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA, THROUGH ITS REGISTRAR. 2.THE VICE CHANCELLOR, BUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA. 3.THE REGISTRAR, BUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA. 4.THE PRINCIPAL, SAHARSA COLLEGE SAHARSA. 5.MD. ALAM, S/O NAME NOT KNOW TO THE PETITONER AT PRESENT PEON SAHARSA COLLEGE SAHARSA. 6.KUSHESHWAR SAH, S/O NAME NOT KNOWN TO THE PETITIONER, PEON SAHARSA COLLEGE SAHARSA. 7.SWANTRA KUMAR JHA, S/O NAME NOT KNOWN TO THE PETITONER,PEON SAHARSA COLLEGE SAHARSA. 8.KRISHNA BALLABH PATEL, S/O NAME NOT KNOW TO THE PETITIONER, PEON SAHARSA COLLEGE SAHARSA. 9.THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY THROUGH COMMISSIONER HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. ………………………RESPONDENTS. ----------- 11/ 04.08.2011 Heard Mr. Taranath Jha, learned senior counsel for the petitioner and Mr. Vinod Krishna Jha, learned senior counsel for the B.N Mandal University. In this writ application the prayer of the petitioner reads as follows:- “That this is an application for issuance or a writ in the nature of the Certiorari for quashing the 2 order issued vide memo no. 86/96 dated 4/9/96 under the signature of respondent no. 3 so far it relates to the regularization of respondent no. 5 to 8 and further for issuance of a writ in the nature of mandamus directing the respondents- authorities to regularize/absorve the petitioner against the post of Peon in the services of Saharsa College Saharsa under the Bhupendra Narayan Mandal University, Madhepura and further also for issuance of an appropriate writ/order/direction directing the respondents to make the payment of full salary from 5/9/85 till the date as admissible after adjusting the amount which has already been paid to the post of Peon and further to grant all the benefit-s to the petitioner as admissible under the law against the post of Peon(hereinafater referred to as the University). Mr. Taranath Jha, learned senior counsel for the petitioner referring to the impugned order dated 04.09.1996, would submit that the principle adopted by the University in regularizing the services of eight persons and leaving the petitioner on the classification of the appointment being made prior to 10.05.1986, or and after that date, is both factually incorrect and legally impermissible. He would also submit that it is an admitted fact that the petitioner has been working as a Class-IV 3 employee (Ward Servant) in the hostel of Saharsa College Saharsa for almost last 25-26 years for whom in fact at one point of time, the University after making due consideration had also taken a decision to regularize his services along with others, including them whose names have found place in the impugned order dated 04.09.1996. He would accordingly submit that it will be too late in the day for the respondents to deprive the petitioner for the benefit of regularization of service especially when the petitioner has continued to work in the light of the engagement by the head of the Institution namely Principal of the College. Mr. Binod Krishna Jha, learned senior counsel on the other hand would submit that the University will have a very little role to play in the case of the petitioner, inasmuch as, the funds for payment of salary or sanctioning the post for regularization is invariably made by the State Government and therefore, if the State Government has not sanctioned Clas-IV post for the 4 hostel in question for Saharsa College Saharsa, the University had no option but to abide by the Government decision as with regard to regularizing the services of such persons only who were appointed prior to 10.05.1986, and that is how the impugned order was passed on 04.09.1996 segregating eight persons including the petitioner from rest of others who were earlier regularized by the University. In this context, he has also invited the attention of this Court, towards a subsequent decision taken by the University on 21.10.2003, wherein, apart from eight persons whose names have been included in the impugned order dated 04.09.1996, the University has also sought to regularize the services of the petitioner and two others on class-IV post. In the considered opinion of this Court it is too late now, to assail the manner of appointment of the petitioner inasmuch as, such appointment was admittedly made for upkeep and maintenance of a hostel of a constituent 5 College of the University. Such constituent College being Saharsa College Saharsa, a very old and primere institution having the facility of hostel was supposed to run with the help of proper infrastructure and therefore, this Court would fail to understand the logic of there being no separate sanctioned post of Ward Servant for the hostel. True it may be that at one point of time, the Government may have sanctioned class-III and class-IV post for Saharsa College Saharsa, while it was an affiliated Unit but if later on it became a constituent Unit and the hostel of the College was started and/or added, there would definitely be requirement for separate set of Class-III and Class-IV staff including the post of Ward Servant for functioning of such hostel. It is not on record as to from when had the hostel actually started functioning but then the fact that the petitioner has been working for almost 25-26 years as a Ward Servant in the hostel his such long continuation by itself would be sufficient to hold 6 that there has been a perennial need/requirement of a post of class-IV employee in the form of Ward Servant in the hostel. In such a situation, it is the State Government which has to now decide as to whether in constituent Colleges having the hostel, will there be additional strength of class-IV employees beyond what has been sanctioned for such constituent Colleges having no hostels. In other words, the Director Higher Education will have to look into the specific facts and Circumstances of this College for deciding the staffing pattern and sanctioning the post as per the staffing pattern. Let it be noted that under staffing pattern already adopted by the Government of Bihar, on the basis of the report of the Bandhopadhayay Committee, there would be a clear indication of creation and sanction of additional post for which the additional infrastructure such as common room for girls College or Coach for different sports as per the requirement 7 of the College should be provided. In the similar way the staffing pattern of a hostel in constituent College has to be also in and fixed inasmuch as there has to be an additional strength of class-IV employees on whatever yardstick the State Government may fix. In other words if for the creation of sanctioned post in the constituent Colleges is based on a number of students admitted in that College, there has to be a similar provision for a number of students living in the hostel so as to gauge the requirement of sanctioned post for class-IV employees of the hostel of the College. All these aspects therefore, would require a serious consideration from the competent Authority of the State Government and therefore, this Court would direct the Director Higher Education to look into this aspect and obtain order of the Government as with regard to creation and sanction of class-IV post for the hostel of Saharsa College Saharsa,. It goes without saying that if a post of class-IV employee in the form of 8 Ward Servant was already existing as shown in the chart contained in Annexure- 12 to the writ application, the Government with the help of the University and the College will have to only figure out as to whether the petitioner was the person who was continuing against such sanctioned post after the retirement of the Kailu Kamat. There is no dispute on this score inasmuch as no other person has come out to claim the post of Ward Servant except the petitioner and accordingly, if the post is already sanctioned the University on being indicated the decision of the State Government in the manner indicated above has to pass a firm order for regularizing the services of the petitioner. It is made clear that once such regularization of the petitioner is made, there would be no financial liability either on the State Government or the University to pay arrears of salary to the petitioner but his previous services shall be reckoned for all other allied purposes including calculation of 9 his post retirement benefit. This Court would also make it clear that the Government itself having withdrawn the circular dated 10.05.1991, as with regard to regularization of services of all the persons appointed only prior to 10.05.1986 can not discriminate the petitioner on this issue, inasmuch as, now the persons appointed before 10.05.1986 or after 10.05.1986 stands on the same footing. To that extent the stand taken by the University in its order dated 21.10.2003, regularizing the services of the petitioner seems to be more fair and reasonable, inasmuch as, all the 11 persons said to be working on class-III and class-IV post were sought to be regularized. It however, goes without saying that any order of regularization of service of any person in the University has to be against the sanctioned post and therefore, a decision will have to be taken by the State Government against the sanctioned post. Considering all these aspects, this 10 Court would direct the Director Higher Education to take a final decision as with regard to issues involved in this writ application namely creation and sanction of class-IV post in the hostel of Saharsa College Saharsa, for regularizing the services of the petitioner against such post. It is expected that the Director Higher Education having obtained the order of the Competent Authority will communicate the decision of the Government to the University as also to the petitioner within a period of six months. In order to expedite the matter, this Court would give liberty to the petitioner to file a self contained representation along with connected documents and a copy of this order but also any other evidence on which he would like to rely for grant of relief from the Government. Before parting with it is made clear that this Court, in view of the conflicting claims regarding continuation of services of the petitioner in the service of the College, is not inclined 11 to give any finding nor would expect the Government to be governed by this aspect. Such trivial issue, in this writ petition which was filed in the year 1997 and there was an interim order of status quo whereafter it is being said now by the University that the petitioner has been removed from service in the year 2007 is infact fit to be ignored. In that view of the matter, either continuance or removal of the petitioner throughout the pendency of the writ application will not prejudice him from the main relief for which directions have been given above. It however goes without saying that if the petitioner has been continuing in service as is being claimed by his counsel in terms o0f the interim order passed by this Court he will continue to work because this Court has not held his continuation to be bad in law. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)