IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.4623 OF 2009 1. PHULESHWAR PRASAD YADAV, S/O LATE BHUNESHWARI PRASAD YADAV, R/O VILLAGE MACHHAHA, P.S SINGESHWAR, P.O. TENGRAHA, DISTRICT MADHEPURA. 2. MADAN PRASAD YADAV, S/O SRI JAGDISH PRASAD YADAV, R/O VILLAGE/MOHALLA WARD NO. 5, P.O.+P.S AND DISTRICT MADHEPURA. 3. ASHOK KUMAR SINGH, S/O LATE RUDAL NARAYAN SINGH, R/O VILLAGE BHATKHORA, P.S MURLIGANJ, DISTRICT MADHEPURA. 4. RAJIV KUMAR RANJAN, S/O SRI DEVENDRA PRASAD YADAV, R/O VILLAGE +P.O. CHATARA, P.S MURLIGANJ, DISTRICT MADHEPURA. 5. KAILASH PRASAD GUPTA, S/O LATE RAM CHARITAR PRASAD, R/O VILLAGE /MOHALLA WARD NO. 14, P.O +P.SAND DISTRICT MADHEPURA. 6. ANANT MANDAL, SON OF LATE SUNDER MANDAL, RESIDENT OF VILLAGE/MOHALLA-WARD NO.1, P.O.+P.S. AND DISTRICT-MADHEPURA. 7. RAJENDRA PRASAD MALLICK, SON OF SRI BASUDEO MALLICK, RESIDENT OF VILLAGE/MOHALLA-WARD NO. 6, P.O.+P.S. AND DISTRICT-MADHEPURA. 8. GANESH MUKHIYA, SON OF SRI GHURAN MUKHIYA, RESIDENT OF VILLAGE- BELAGANJ,P.O.+P.S. AND DISTRICT- MADHEPURA. 9. CHANDESHWARI PRASAD YADAV, SON OF SRI LADDU LAL MANDAL, RESIDENT OF VILLAGE- SIHE, P.O.- BAKOUR, P.S. AND DISTRICT- MADHEPURA. 10. NANDAN KUMAR BHARTI, SON OF LATE GARIV PRASAD YADAV, RESIDENT OF VILLAGE- RUPAULI, P.S.SINGHESHWAR, DISTRICT- MADHEPURA. 11. PANCHU RAM, SON OF LATE MUNAR RAM, RESIDENT OF VILLAGE-VAIYA GHAT, P.O.- TULSIWARI, P.S. AND DISTRICT-MADHEPURA. 12. NARESH KUMAR, SON OF SRI DEV KRISHNA PRASAD YADAV, RESIDENT OF VILLAGE- MANHARA, P.O.-SUKHASAN, P.S. AND DISTRICT-MADHEPURA. 13. KAMESHWAR YADAV, SON OF SRI VIRJU YADAV, RESIDENT OF VILLAGE-RAMPATTI, P.S. SINGHESHWAR, DISTRICT-MADHEPURA. 14. BUDHSEN KUMAR, SON OF SRI SHIRO PRASAD YADAV, RESIDENT OF VILLAGE- ITAHARI, P.O.GAHUMANI,P.S.SINGHESHWAR, 2 DISTRICT-MADHEPURA. 15. MOHAN KUMAR RAM, SON OF THAKUR RAM, RESIDENT OF VILLAGE/MOHALLA-WARD NO.7, P.O.+P.S. AND DISTRICT-MADHEPURA. 16. NARAYAN THAKUR, SON OF SRI DEODATT THAKUR, RESIDENT OF VILLAGE-NAVTOLIA, WARD NO.-2 P.S. AND DISTRICT-MADHEPURA. 17. PRANAV KUMAR BABUL SON OF SRI RAM CHANDRA YADAV, RESIDENT OF VILLAGE- +P.O.-MOUJAMPATTI, P.S. BARHARA KOTHI, DISTRICT-PURNEA. 18. BRAJESH KUMAR, SON OF RAM CHANDRA PRASAD YADAV, RESIDENT OF VILLAGE/MOHALLA-WARD NO.8, P.O.+P.S. AND DISTRICT-MADHEPURA. 19. YUGESHWAR PRASAD YADAV, SON OF LATE RAM KRISHNA PRASAD YADAV, RESIDENT OF VILLAGE-HIROLVA, P.S. SINGHESHWAR, DISTRICT-MADHEPURA. 20. PRAVIN KUMAR, SON OF LATE KESHAV PRASAD BHAGAT, RESIDENT OF VILLAGE/MOHALLA-VIDYAPURI, WARD NO. 14, P.O.+P.S. AND DISTRICT-MADHEPURA. 21. ABHAY KUMAR YADAV, SON OF LATE PARMESHWARI PRASAD YADAV, RESIDENT OF RAHI JAGATPUR, P.S. BIHARIGANJ, DISTRICT-MADHEPURA. 22. RAJIV KUMAR, SON OF SRI MAHADEO PRASAD YADAV, RESIDENT OF VILLAGE- MAHHARA-SUKHASEN, P.S. AND DISTRICT- MADHEPURA. 23. ANIL KUMAR, SON OF SRI UPENDRA NARAYAN MANDAL, RESIDENT OF VILLAGE-TOAL IGOPATI TILKORA, P.S. MURLIGANJ, DISTRICT-MADHEPURA. 24. TAK NARAYAN YADAV, SON OF SRI BANARSI YADAV, RESIDENT OF VILLAGE- RAKIYA,P.O. CHATARA, P.S.-GWALPURA, DISTRICT-MADHEPURA. 25. LAL BAHADUR YADAV, SON OF SRI SURENDRA PRASAD YADAV, RESIDENT OF VILLAGE AND P.O. SHREE NAGAR, P.S.GHAILARH, DISTRICT-MADHEPURA. 26. RADHE PRASAD YADAV, SON OF LATE BALDEO PRASAD YADAV, RESIDENT OF MITHAI, P.S. AND DISTRICT-MADHEPURA. 27. MANI KANT KAMTI, SON OF LATE RAJDEO, KAMTI, RESIDENT OF VILLAGE-SAHUGARH BHATU TOLA, P.S. AND DISTRICT-MADHEPURA. 28. KRISHANA KUMAR, SON OF SRI VIJENDRA PRASAD YADAV, RESIDENT OF MANHARA, P.O.- SUKHASAN, P.S. AND DISTRICT-MADHEPURA. 3 29. ARJUN SAH, SON OF SRI SHIVANAND SAH, RESIDENT OF VILLAGE AND P.S.- UDAKISHANGANJ, DISTRICT-MADHEPURA. ………….PETITIONERS. Versus 1. The State Of Bihar THROUGH THE SECRETARY EDUCATIONAL DEPARTMENT GOVERNMENT OF BIHAR, PATNA. 2. THE BHUPENDRA NARAYAN MANDAL UNIVERSITY LALOO NAGAR, MADHEPURA, THROUGH ITS REGISTRAR. 3. THE VICE-CHANCELLOR, B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA. 4. THE REGISTRAR, B.N. MANDAL UNIVERSITY, LALOO NAGAR UNIVERSITY, MADHEPURA. 5. THE PRINCIPAL, T.P. COLLEGE, MADHEPURA, DISTRICT-MADHEPURA. ………………………RESPONDENTS. ------------- 12/ 08.12.2011 Heard counsel for the parties. The prayer of the 29 petitioners in this writ application being quite elaborate as incorporated in paragraph no. 1 of the writ application needs to be quoted because whatever stand has been taken by the respondent State Government and the respondent University would only indicate that the adhocism sought to be continued as with regard to their continuation in the service of the University is still sought to be perpetuated. The petitioners have moved this Court for the following reliefs:- (I). To command the State respondents concerned to pass an appropriate final order, without any 4 further delay, approving the services of the petitioners against their respective Class III and Class IV posts, with effect from 19.01.2002 that is, the date from which the University has approved pay scale in genuine and reasonable anticipation by the State Government which has till date failed to expedite and finalize the matter despite the direction issued by this Hon’ble Court in earlier writ application and has thereby left the petitioner’s life and liberty to precariously hang in balance. (II). To further command the State respondents to pay the entire dues relating to arrears of salary from the aforesaid date of regularization (19.01.2002) till date as also from the date of initial appointment till the date of regularization and thereby resume the regular payment of current salary to the petitioners as the State respondents have done in case of similarly circumstanced employees of K.S.S.College, Lakhisarai one of alike constituent college under the T.M.Bhagalpur University whereas in case of petitioners an unwarranted hostile discrimination is being meted out for no valid and reasonable cause. III. To pass any other order/orders as be deemed fit and proper, in shape of consequential relief, in the backdrop of facts and circumstances of the case and for the apathetic attitude exhibited by the State Government’s concerned department causing inordinate delay in the matter thereby forcing and compelling the petitioners to file the instant writ application for which the respondents guilty should be saddled with exemplary cost. Mr. Ashok Kumar Chaudhary, learned 5 counsel for the petitioners in support of the aforementioned prayer would submit that there is no dispute that the petitioners' engagement on daily wages as class-III/IV employees is continuing since 1992, ever since B.N Mandal University, Madhepura came into existence and in fact when there was also tacit approval of the Vice-chancellor in continuation of the petitioners on daily wages as would be apparent from Annexure-1, the letter of the University dated 29.04.1992, they would be also entitled for regularization of their service keeping in view that similarly situated persons like them, whose daily wage engagement was also noticed and approved by the vice chancellor in the same letter of the University dated 29.04.1992, have been ultimately given the benefit of regularization of service and the consequential pay scale vide University office letter dated 12.08.1995( Annexure- 2). In this regard, he has also invited the attention of this Court towards the University's notification dated 6 19.01.2002, whereby and whereunder, 32 class-III/IV employees including the petitioners are said to be already regularized/absorbed by the University in terms of the order of this Court dated 08.03.1999 in C.W.J.C No. 4507 of 1998 and the earlier order of the University dated 12.08.1995 (Annexure-2). Mr. Chaudhary, in fact would also submit that the petitioners cannot be made to suffer on account of total indecisive attitude of the Authorities of the State Government because whatever was to be done by the University for them has already been done by the said notification dated 19.01.2002. The blame being shifted on the head of the State Government, Mr. Tez Bahadur Singh, learned AAG-VII, had explained the whole issue in the light of the scheme under Bihar State Universities Act. He would submit that the power of appointment on class-III/IV post is exclusively vested with the Vice-chancellor under Section- 10(6) of the Bihar State Universities Act and therefore, the State in order to recognize such appointment in terms of 7 Section-35 of the Act will definitely be entitled to get satisfied as to whether there was sanctioned post for appointment of the petitioners and their appointment were made as per the prescribed procedure. He would therefore, submit that the State Government has analyzed all the aspects specifically in the case of the petitioners and has directed the Registrar of the University by its letter no. 2720 dated 23.10.2011 (Annexure-B) to take a final decision in the matter of regularization of their service. This according to Mr. Singh, would be remaining part of action to be taken by the University which had issued the order contained in Annexure-4 on 19.01.2002 subject to the Government approval. Mr. Hemendra Prasad Singh, learned Senior counsel appearing on behalf of University on the other hand would submit that the said decision of the Government contained in Annexure-B to the third supplementary counter affidavit dated 23.10.2011 would open a flood gate and in fact would make the whole scheme of 8 regularization of service of the petitioners and in fact would also lead to reopening of the regularization of 8 others in whose case also the prescribed procedure for appointment was not undergone. He would, accordingly, submit that the University may, therefore, be given a free hand to take its own decision in the matter of regularization of service by scrutinizing the service records of the petitioners and even 8 others. In the considered opinion of this Court, the entire creator of this problem is the then Vice Chancellor of the University and the Principal of the College. First of all the College in hand T.P. College being a constituent College, no appointment was permissible at the instance of the Principal of the College. The then Vice-chancellor, however, did not find it appropriate to fill up the required posts in the College which is a constituent College and allowed the Principal to make the alternative arrangement at his level by making engagement on daily wages. Such daily wage 9 engagement were immediately brought to the notice of the Vice-chancellor and he had also accorded approval for their continuation in service. Once their services were allowed to be approved even on daily wages by the order of the Vice- chancellor, it cannot be said that there was no approval of the Vice-chancellor. Once the Vice-chancellor, therefore, had exercised his power under Section-10(6) of the Act and had himself undertaken the process for regularization of their services, he cannot now be heard to say that the appointment of the petitioners are illegal and that they would confer any right to the petitioners to claim regularization of service even after their continuation for more then two decades. In this respect, the following passage of Annexure-1 the order dated 29.04.1992 would by itself create an impediment, if not estoppel against the University and its Vice-chancellor, inasmuch as, the same reads as follows:- “The Vice-chancellor has further been pleased to pass the order that the matter of regularization of their services 10 as requested by you, would be considered by the University later on.” Not only that out of list of 41 persons contained in the enclosure of Annexure-1 the aforesaid letter of the University dated 29.04.1992, 8 of them were also given benefit of regularization of service under the order of the Vice Chancellor from office order no. 1097-1108 dated 12.08.1995 (Annexure-2). Thus the impression sought to be created by Mr. Singh, that such regularization of 8 of them was made with prior approval of the State Government seems to be also not supported from this document, inasmuch as, the reference of the State Government is only with regard to sanctioned post for regularization of the service. It is therefore, clear that the Vice chancellor on his own had already regularized the service of 8 of them, all of whom alike petitioners were appointed on daily wages under the orders of the Principal of the College and were given Vice-chancellor's approval to continue in service on daily wages. 11 In that view of the matter, if there are sanctioned post of class-IV employees available as is clearly now sought to be supported by the State in supplementary counter affidavit filed by the State itself explaining that in the College in question there are 25 sanctioned posts of class-IV and only 8 of such post had been occupied by similarly situated persons by University order dated 12.08.1995, there would still remain 17 vacant post of class-IV employee on which the petitioners' services can be regularized. Let it be noted that for regularizing the services of 8 of them, the University had maintained no further norms except availability of sanctioned post and 8 of them were sought to be regularized by the order dated 12.08.1995. Today, when the University has again been asked by the Government itself by its order dated 23.10.2011 to take its final decision, it cannot adopt any different norm unless it also chooses to cancel the regularization of 8 others whose 12 regularization was made vide order dated 12.08.1995 (Annexure-2). Therefore, it is for the Vice-chancellor of the University to decide as to whether 25 sanctioned posts of class-IV employees would be filled up by undergoing a fresh process by removing everyone of them including 8 of them whose services has been regularized or same benefit be extended to the petitioners also. The expression requirement of fulfillment of prescribed procedure in the initial appointment of the petitioners as sought to be impressed by the State Government in its letter dated 23.10.2011 (Annexure-B) will have to be understood in the context of their service history and if therefore, the University could regularize the services of 8 of them vide Annexure-2, there should be no difficulty in regularizing the services of the petitioners in the like manner of his aforesaid direction should take care of the cases of class-IV employees. The same stand cannot, however, be applied in the case of class-III employees 13 because for them there is not only the requirement of educational qualification but also prescribed procedure for their appointment. A typist in the College cannot be regularized only because he has continued in service of the College unless he is a well versed in typewriting. The accountant on daily wages cannot be regularized in service if he is not well versed and qualified in doing the accounting job, therefore, so far as the case of class-III employees including some of the petitioners of this case are concerned they will be separately gone into by the University in compliance of the direction given by the State Government in its letter dated 23.10.2011. For this purpose as there is also no precedent for regularizing the services of any employee of this College in past. The Vice-chancellor will therefore constitute a three man committee consisting of Registrar, the Principal and the Inspector of the Colleges, who would examine the qualification of all the class-III employees allegedly continuing in service 14 on daily wages including the petitioners and if the said Committee would be satisfied that they have the requisite educational qualification and also fulfill the terms of eligibility for being appointed on a class-III post, their services would be regularized. If, however, the three man committee would find that any of the petitioners and/or other the daily wage employees to be disqualified for the post or there are more than one claimant for the same post, it would select the best of them against a particular sanctioned post by holding a limited departmental competitive examination and thereafter its result with a report shall be placed before the Vice- chancellor who being the appointing Authority under Section-10(6) of the Act shall take his final decision. So far it relates to regularization of class-IV employees any of the petitioners getting benefit of regularization shall be entitled to count their service from 12.08.1995, because the counter part 8 of them were given such 15 benefit from 12.08.1995 but their actual payment of salary in the prescribed pay scale shall commence only from the date of issuance of such order. In other words, they may get continuity of service from 12.08.1995 but the financial commitment on account of such regularization and its payment shall commence from a prospective date on which the University would pass such order. So far as class-III employees are concerned they will be entitled for their regularization of service only w.e.f the date such order is issued. Such exercise must be completed in the case of all the petitioners 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. Ranjan (Mihir Kumar Jha, J.)