IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2108 of 2006 1. RANVIJAY KUMAR, son of Sri Kapileshwari Yadav, resident of village and post- Narayanpur, P. S.- Bihpur, District- Bhagalpur. 2. Smt. Sarita Kumari, wife of Sri Shankar Mandal, resident of village- Narayanpur, P.S.- Bihpur, District- Bhagalpur. 3. Sanjay Kumar Thakur, son of Late Saryug Thakur, resident of village and post- Balaha, P.S.- Bihpur, District- Bhagalpur. 4. Mohit Pd. Yadav, son of Late Nageshwar Yadav, resident of village and post- Narayanpur, P.S.- Bihpur, District- Bhagalpur. 5. Mahendra Jha, s/o Late Anant Jha, resident of village- Parbatta, P. O. – Saher Parbatta, P.S. Ismailpur, District- Bhagalpur. 6. Ajay Kumar Jha, s/o Buddhi Nath Jha, resident of village- Balaha, P. O. Balaha, P.S.- Bihpur, District- Bhagalpur. 7. Sudhir Das, s/o Late Sahdeo Das, resident of village- Madurapur, P. O. Madhurapur, P. S.- Bihpur, District- Bhagalpur. … Petitioners. Versus 1. T.M.BHAGALPUR UNIVERSITY, Bhagalpur through its Registrar. 2. The Vice-Chancellor, T. M. Bhagalpur University, Bhagalpur. 3. The Registrar, T. M. Bhagalpur University, Bhagalpur. 4. The Deputy Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur. 5. The Principal, Jai Prakash College, Narayanpur a Constituent unit of the Tilkamanjhi Bhaglapur University, Bhagalpur. 6. The State of Bihar through the Commissioner-cum-Secretary, Department of Finance, Government of Bihar, New Secretariat, Patna. 7. The Commissioner-cum-Secretary, Department of Higher Education, Government of Bihar, New Secretariat, Patna. 8. The Director, Department of Higher Education, Government of Bihar, New Secretariat, Patna. .. Respondents. ------------- 2. 09.08.2010 Counsel for the petitioners would submit that during the pendency of this writ petition, the petitioner nos. 3 and 7 have died and there is no substitution petition on their behalf. That being so, this writ petition is/was held to have 2 abated as against both of them. Heard counsel for the petitioners and counsel for the Bhagalpur University. This writ petition now surviving in respect of respondent no. 1, 2, 4, 5 and 6 only has to be adjudicated in the light of the relief which was originally sought by the petitioners in the main writ petition which was filed on 16.2.2006 and again in the light of an amendment petition which has been filed only a few days back on 2nd August 2010. To make the things clear it would be relevant to quote the relief which was originally prayed in this writ petition by the petitioners which reads as follows: “(i) Issuance of an order direction or appropriate declaration that the petitioners, who on being absorbed in the regular services of the respondent University vide Anneuxre-4 are discharging their respective duties in the college, on regular basis are fully entitled for being granted all the benefits of the regular employees including regular salary from the dates of their respective initial appointment in the college/University. (ii) Issuance of an order direction or a writ in the nature of mandamus commanding the respondent authorities to ensure the payment of regular salary and other admissible benefits to the petitioners from the dates of their 3 respective initial appointment in the college as detailed in Annexure-1, with heavy penal interest thereupon at least @ 12% per annum. (iii) Issuance of an appropriate declaration that any subsequent order relating to the regular appointment of class IV employees in the University contrary to Annexure-4 are illegal, arbitrary and violative of principles of natural justice. (iv0 For quashing that part of office order no. 161/2002 dated 5.7.2002 (Annexure-4) holding there in that ^^osrukfn dk Hkqxrku jkT; ljdkj ls ,rr~ laca/kh vuqeksnu ,oa jkf'k izkIr gksus ij gh fd;k tk;sxk** To the aforementioned relief now the following prayer has been sought to be incorporated by way of amendment: (i) Issuance of an order, direction or a writ in the nature of certiorari quashing Office Order Nos. 85/06 dated 27.5.2006, 87/06 dated 27.5.2006 and 89/06 dated 27.5.06(Annexure- 10, 11 and 12 to this Interlocutory Application, whereby and whereunder the 205 persons have been regularized in the services of the respondent University and the names of the petitioners have been left over. OR IN ALTERNATIVE Issuance of an order, direction or a writ in the nature of mandamus commanding the respondents concerned to include the name of the petitioners in any of the Annexure Nos. 10 to 12 of this Interlocutory Application and they may further be directed to grant all due benefits to the petitioners like the employees named in Annexure Nos.10 4 to 11 of this Interlocutory Application. (ii) to hold and declare that the action of the respondents concerned in not including the names of the petitioners in either of the Annexure nos. 10 to 12 of this Interlocutory Application is arbitrary, mala fide, malicious and unsustainable in the eye of law and on facts both, tantamounting to the violation of Article 14, 16 and 21 of the Constitution of India.” Counsel for the petitioner would submit that the petitioners were initially engaged on daily wages by the Principal of the Jai Prakash College (hereinafter referred to as the “College”) vide orders dated 15.12.1988, 2.1.1989 and 1.4.1989 and subsequently their services were absorbed by the University by an order dated 6th July 2002 but the said order of absorption dated 5.7.2002 was cancelled in the year 2003 and thereafter the University has kept on regularizing large number of employees to the exclusion of the petitioners. He would submit that in doing so, the petitioners have been subjected to hostile discrimination. Counsel for the University on the other hand has submitted that initial appointment of the petitioners on daily wages by the Principal of the College was wholly illegal. He has further in this regard drawn attention of 5 this Court to the fact that the entire process of regularization of such daily wages employee was under active gaze of both State Government and the Chancellor and therefore the final decision with regard to absorption of only such persons have been taken who were senior in the process of their daily wages engagement. In this context, in paragraph 12 and 13 the whole process of absorption of daily wages employees has been given by the University. In the considered opinion of this Court, the declaration initially sought by the petitioner with regard to the validity of their appointment would automatically lead to examination of their manner of initial appointment. From the reading of the initial appointment letters of the petitioners issued by the Principal of the College, it becomes clear that their initial appointment in Constituent Colleges which are part of the University and receiving fund from the State Government were sought to be made without undergoing any process of selection and too by the Principal of the College on his own whims who has not been empowered to make any appointment in Constituent College. Such daily wages 6 employees in fact can have no validity in the eye of law much less would qualify for regularization as has been held by the Constitution Bench of Apex Court in the case of Secretary State of Karnataka Vs. Uma Devi (3) reported in (2006) 4 S.C.C. 1 wherein law has been laid down that:- "Persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, have been approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary 7 employees whole period of employment has come to an end or of ad hoc employees who period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware, of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain- not at arm's length- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporar5ily or casually got employed should be directed to be continued permanently. By doing so it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employees. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal 8 right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the temporary, contractual, casual or daily- wage employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. It is therefore not possible to accept the argument that the State action in not regularizing the employees was not fair within the framework of the rule of law." As a matter of fact, the University had also treated them on the same footing and that is how after advertising the vacant Class-IV posts had made a panel wherein the name of the petitioners were initially included but on account of illegal procedure adopted by the concerned authorities of the University, the matter thereafter had travelled up to this Court and this Court had issued certain directions whereafter a fresh list was drawn. There being certain anamoly in the redrawn list the matter had again travelled to the Hon'ble Chancellor because the State Government was not prepared to give approval to the entire list of daily wages employee on account of limited sanctioned number of posts for which it was only liable to release of fund for payment of their salary. In this process the whole process of absorption of daily wages was again gone into by the University and 9 the seniors to the petitioners only were included in a fresh list and absorbed. Therefore, if the petitioners could not be ultimately regularized in service and had sought a relief for declaring their initial appointment as valid and legal as originally prayed by them in this writ petition, this Court could have made such a declaration only if it had found their such appointments to have met the requirement of Article 14 and 16 of the Constitution of India. As noted above, none of the petitioners were actually appointed in the manner prescribed much less by the competent authority being the Vice Chancellor of the University under Section 10 of the Bihar State Universities Act and the Statutes framed thereunder. The reliance placed by the petitioner on a judgment of single judge of this Court to justify the appointment made on daily wage by the Principal also is wholly misconceived because what was held by his lordships in deciding the case of Himanshu Shekhar Jha vs. Tilkamanjhi Bhagalpur University & Ors. (CWJC No. 12378-00) disposed of on 19.10.2006, in relation to a case of promotion was that the Principal of the College 10 in the Constituent College could make an appointment provided he had obtained even post facto approval from the Chancellor. Counsel for the petitioners would not produce any order showing such post facto approval to appointment of daily wages employee by the principal. Therefore, this Court must hold that the appointment of petitioners initially made on daily wages, the basis of which they are claiming continuation and regularization of service being in teeth of Articles 14 and 16 was itself void ab initio and would confer them no right as held in the case of Uma Devi (supra). In such cases the principle as adopted by the Supreme Court in the case of Managing, Government Branch Press and Another vs. D. B. Belliapa, reported in AIR 1979 SC 429 of "last come first go" has to be strictly followed. Admittedly, when the University has asserted that those who were absorbed from daily wages were senior to the petitioners and this fact has not been controverted by the petitioners, this Court will have to hold that those who have been regularized were senior to the petitioners and thus their plea of discrimination in the matter of regularization has to be consequently rejected. 11 Now comes the prayer of the petitioner in the interlocutory application by which the order of absorption of 205 persons vide Annexure 10, 11 and 12 have been challenged by the petitioner on the sole ground that such order of absorption by way regularization of their service was passed in an irregular manner. From the reading of the interlocutory application at least this much is clear that first of all those persons whose order of absorption have been challenged have not sought to be made party to the writ petition and additionally it is not claimed that when they were engaged on daily wages they were in any manner junior to the petitioners even in temporary employment. Thus both on account of non-joinder of party as also on account of none of the persons so absorbed vide annexure 10, 11 and 12 being junior to the petitioners the challenge to their absorption can also not be sustained. In any event, when the petitioners had accepted their order of regularization issued in the year 2002 as contained in, annexure-4 which was cancelled by the University by Letter No.171/03 and 172/03 dated 5.6.2003 and if the petitioners have not assailed the 12 correctness of those orders, at least the prayer of declaration of their validity of initial appointment on daily wages cannot be now allowed. The service of the petitioners have already been terminated and since such order has not been assailed by them, the petitioners would be deemed to have acquiesced to such order and cannot raise an indirect challenge to their order or termination on any ground whatsoever. That being so, this Court would not find any merit in this writ petition and the same is, accordingly, dismissed. kanchan/ (Mihir Kumar Jha, J.)