IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 2173 of 2008 1 Prasant Shankar Mishra, son of late Sonelal Mishra, resident of village + Post – Madhurapur, Via – Narayanpur, P S – Bhawanipur, District – Bhagalpur 2 Rajendra Poddar, son of late Yogi Poddar, resident of village – Madhurapur, P O – Madhurapur, P S – Bihpur, District – Bhagalpur 3 Md Zulfakkar Ali, son of late Md Ainul Haque, resident of village + Post – Madhurapur, Via – Narayanpur, P S – Bhawanipur, District – Bhagalpur 4 Md Zubair Alam, son of Md Badaruddin, resident of village – Chaurami, P O – Narayanpur, P S – Bihpur, District – Bhagalpur 5 Nand Lal Yadav, son of Harinarayan Yadav, resident of village + P O – Balha, P S – Bihpur, District – Bhagalpur 6 Manoj Prasad Sharma, son of Chandradeep Sharma, resident of village – Madhurapur, Via – Narayanpur, District – Bhagalpur 7 Amit Kumar Yadav son of Isha Yadav, resident of village – Chhauhadi, P O – Narayanpur, P S – Bihpur, District – Bhagalpur 8 Suresh Poddar, son of late Rameshwar Poddar, resident of village + P O – Madhurapur, P S – Bihpur, District – Bhagalpur 9 Raj Kumar Haldhar, son of Motilal Haldhar, resident of village + P O – Balha, P S – Bihpur, District – Bhagalpur 10 Pushpalata Kumari, daughter of Jayprakash Shah, resident of village + P O – Madhurapur, P S – Bihpur, District – Bhagalpur, all are the Class-III & Class- IV daily wages employee of J P College, Narayanpur, Bhagalpur and T M University, Bhagalpur - Petitioners Versus 1 The State of Bihar through Secretary/Commissioner, Higher Education, Government of Bihar, Patna 2 The Vice-Chancellor, Tilkamanjhi Bhagalpur University, Bhagalpur 3 The Tillkamanjhi Bhagalpur University, Bhagalpur through its Registrar 4 The Principal, J P College, Narayanpur, Bhagalpur - Respondents *** For the petitioner : Mr Rajendra Prasad Singh, Sr Advocate With M/s Rajeev Kr Singh, Onkar Kumar, Navjot Yeshu, Ramakant Singh, Advocates For the University : Mr Anil Singh, Advocate For the S t a t e : Mr G P 19 *** 12 28.03.2011 The petitioners, 10 in number, are Class-III and Class-IV 2 employees of J P College, Narayanpur, District – Bhagalpur. Counter affidavit, rejoinder have been filed, pleadings being complete, the writ petition has been heard, with consent of parties, for its disposal at this stage itself. J P College, Narayanpur was established in the year, 1955- 56 and was affiliated to the Bhagalpur University, now Tilka Manjhi Bhagalpur University. It became a constituent College in 1976-77. There being large number of vacancies in Class-III and Class-IV posts from the time the College became constituent College, petitioners were appointed by the Principal of the College but as the matter of approval of their service was pending before the Vice Chancellor, they were not paid full remuneration even as daily wager. They were, thus, appointed on sanctioned vacant post in 1989. Shri Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioners refers to the notification dated 14.05.1977 of the University (Annexure-14) whereby the powers to appoint Class-III and Class-IV employees of the constituent Colleges were delegated to the Principal of the said College subject to approval of the Vice Chancellor and/or the Syndicate. It is not in dispute that the matter of regularisation of the services of the petitioners was kept pending since 1989 and it is also not in dispute that pursuant to request of the University on 20.12.2004 (Annexure-11), the Principal of College sent a detailed statement of existing employees of the College which included all the petitioners. It is also not in dispute that apart from the petitioners and other employees there still remains vacant 6 posts of Class-III and 17 posts of Class-IV. These facts have been referred by Shri Rajendra 3 Prasad Singh, learned Senior Counsel to emphasize that in view of the Full Bench judgment of this Court in the case of Braj Kishore Singh – Versus- State of Bihar since reported in 1997 (1) PLJR 509 wherein a Full Bench of this Court has clearly opined that once a College is affiliated and/or made constituent, it cannot be so done without requisite staff which includes teaching and non-teaching staff. There being a staffing pattern prescribed to the extent of staffing pattern, the post would be deemed to be sanctioned as one time sanction and open for appointment and being filled up. The facts in the present case would show that authority to appoint was delegated to the Principal which is not disputed. As per staffing pattern, there still remain vacant posts. Petitioners were appointed. When nothing was being done, some of the petitioners and their like moved this Court by filing writ petition being CWJC No 15006 of 2005 which was disposed of by this Court on 04.07.2007 directing the petitioners to file representations before the Vice Chancellor for their regularisation. Annexure-1 is the order of the University dated 02.11.2007 by which their representation for regularisation has been rejected primarily on the ground that they have been improperly appointed. Mr Rajendra Prasad Singh, learned Senior Counsel submits that in view of the decision of the Apex Court in the case of Uma Devi, as explained even recently, at worst, the petitioners’ case is on irregularity and not illegality in appointment. They have, admittedly, been working since 1989, that is over two decades. All of them have become overage for being considered for any other appointment. They have all along worked in a constituent College. They are on sanctioned 4 post. They were appointed by the Principal to whom authority was delegated. The posts were vacant and in fact there are more vacant posts still available. On the other hand, learned counsel for the University submits that apparently, having considered the representation, University found that the appointments were wrongly made. There were no proper advertisements. Approvals were not sought for from the Vice Chancellor and, as such, the services of the petitioners could not be regularised. Having considered, in my view, the submission of the University cannot be acted. After 20 years, to say that there was no proper advertisement or that approval was not sought for, cannot be accepted. Even if it is to be accepted, it would only be that the appointments were irregular. It does not deter from the fact that appointments were made of qualified people on sanctioned vacant post by the Principal to whom authority had been delegated which authority has not been challenged in these proceedings. In my view, thus, clearly it is a case which is not the case of an illegal appointment which cannot be regularised. Therefore, I am left with no option but to set aside Annexure-1, the order of the University rejecting the representation of the petitioners and direct the University to immediately take steps for regularising the services of the petitioners with effect from the date from which they have been working in the College for the purposes of which University would be entitled to make such enquiry as it thinks proper. Be that as it may, under any circumstances, final order containing the effective date of regularisation would be passed 5 within two months from today and payment made by requisitioning the funds or otherwise within three months of the order so passed. With these directions, the writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)