IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9379 of 2000 Sunil Kumar Singh, Son of Shri Gajendra Prasad Rathour, age 34 years, Kutchery Road, Hajipur, P.S.-Hajipur, District-Vaishali. ……….Petitioner. Versus 1. The State of Bihar, through the Secretary, Human Resources Development Department, New Secretariat, Vikas Bhawan, Patna. 2. Shri Uma Shankar Prasad, name of father not known to the petitioner, Deputy Secretary, Human Resources Development Department, New Secretariat, Vikas Bhawan, Patna. 3. The Director, Higher Eduction, Human Resources Development Department, New Secretariat, Vikas Bhawan, Patna. 4. The Vice-Chancellor, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur. 5. The Principal, R.N. College, Hajipur. ………Respondents. ----------- For the Petitioner: Mr. Naresh Chandra Verma, Adv. For the University: Mr.Ajay Bihari Sinha, Adv. For the Principal: Mr. Harendra Tiway, Adv. Md. Ashlam Ansari, Adv. For the State: Mr Lakmesh Marvind, A.C. top SC-20. 6/ 11.11.2009 Heard counsel for the petitioner, counsel appearing for B.R.A. Bihar University and the counsel representing the Principal of R.N.College, Hajipur as well as the State. R.N. College, Hajipur became a constituent unit of B.R.A., Bihar University in the year 1976 as such in all its’ administrative matters it was to be governed by the statutory provisions under the University Act. The petitioner Sunil Kumar Singh, in the present application, has prayed for quashing of the part of the order dated 18.09.1999 issued by the Deputy Secretary, Higher Education, Government of Bihar, contained in Memo No. 1017 dated 18.09.1999 whereby case of the petitioner for regularization was rejected. 2 Petitioner’s case is that the rejection order has been passed in violation of the order passed by the High Court in L.P.A. No. 36 of 1994 and a direction is required to be issued to the respondent authorities to consider his case in the light of High Court’s order in L.P.A. No. 36 of 1994 and to allow him all consequential benefits including arrears of salary right from the date of his appointment. Petitioner’s claim is that he was appointed by the Principal of the College on 14th February, 1986 against a sanctioned vacant post in the college, as per the staffing pattern. For this appointment a notice was published on the board in the university campus. The petitioner gave his joining on 15.3.1986 in pursuance of the letter of appointment and the appointment of the petitioner was made in the Library Section on the post of Sorter. As per the direction of the Officer on Special Duty (Administration) dated 03.12.1987 the Principal of the college forwarded details of the posts, which also included four posts of Sorter. Four posts of Sorters were forwarded in the forwarding letter of Principal in the ratio of number of students. In the forwarding letter names of persons functioning under staffing pattern were shown. Name of the petitioner was shown against the post of Sorter. The university also prepared proforma for considering the regular appointment of such forwarded names and sent it to the State Government but, till date nothing was done. Finally, Human Resources Development Department of Government came out with a resolution dated 10th 3 May, 1991 whereby non-teaching posts were sanctioned in different colleges in different departments, in accordance with staffing pattern. So far the R.N. College, Hajipur is concerned, three posts of Sorters were sanctioned. Persons who were appointed prior to cut off date i.e. 10.05.1986 against the sanctioned vacant posts, were decided to be absorbed. Petitioner’s case is that again, in the year 1994 petitioner’s name was forwarded by the Principal for the purposes of release of salary along with the budget, which also included the name of the petitioner but, still nothing was done. Thereafter, several persons who were aggrieved on account of their non- absorption, under the staffing pattern moved before this Court by filing several writ applications. In L.P.A. No. 36 of 1994 a decision of the Full Bench came, giving guideline, how the persons appointed under the staffing pattern should be regularized on the posts they are working. Under the same guideline he is also entitled for being absorbed/regularized on the post. He was appointed by the Principal in the year 1996 and continuously working till the year 1999. Counter affidavits have filed on behalf of the Principal as well as the University. In both the counter affidavits claim of the petitioner has been contradicted. Respondent university and the principal of the college, have challenged the maintainability of the writ application on the ground that the relief prayed by the petitioner in the writ application itself is not maintainable, for the 4 reason that he got himself registered with the Bihar State Bar Council in the year 1997 and, since then, he is practising as an advocate in the Civil Court, Hajipur. The claim of the petitioner regarding regularization and payment of salary, right from the date of his initial appointment till date, in the changed circumstance is not maintainable. Both the respondents have also stated that petitioner was never appointed by a competent person in a legal manner. The College became constituent unit of B.R.A. Bihar University in the year 1976 itself. The Principal of the college was not authorized to make any such appointment even under the staffing pattern. Petitioner could have appointed as provided under the statute relating to appointment of non-teaching staff. Since, it was done, it was not a legal appointment. It is also stated that the post, in which the petitioner is claiming, to have been appointed i.e. 4th post of Sorter, was not at all sanctioned post at the relevant time and till date this post has not been sanctioned under the staffing pattern as only such persons can be regularized/absorbed, who are appointed by a competent authority on such posts, which according to the Inter- University Board is considered within the staffing pattern. The post on which the petitioner was neither appointed by a competent authority and the post against which, he claims to have been appointed under the staffing pattern was not considered within the sanctioned posts by the Bihar Inter University Board. Counsel for the petitioner has placed reliance on the 5 decision reported in 1997 B.L.J. 686 i.e. the judgment of the Full Bench in L.P.A. No. 36 of 1994. Paragraphs which have been read and relied upon are starts from 15 onwards of the judgment. In these paragraphs a cut off date has been mentioned i.e. May 10th, 1986 and it has been stated that persons who were appointed by the competent authority within this period. I would like to refer para 18 of the judgment which is quoted as follows :- “Another document which may be noticed is the Resolution of the State Government contained in Memo No. 989 dated May 10, 1991 of the Human Resources Development department, which is part of annexure-17 to the writ petition (at pages 108-109 of the paper book). The very opening paragraph of the aforesaid resolution mentions that staffing pattern based on the recommendation of the Bihar Inter University Board with respect to non-teaching staff of different categories has been circulated. The resolution further states that having reconsidered the matter regarding staffing pattern, the State Government decided to create the posts on the basis of the staffing pattern circulated earlier, the details where of are mentioned in the Appendix. A silent aspect of the aforesaid resolution is that by that resolution the State government also communicated its decision to allow such employees who were working since prior to May, 10, 1986, beyond the staffing pattern, to continue until they are adjusted against vacancies occurring in future; while services of the persons appointed after the said date i.e. May 10, 1986 were to be terminated.” 6 From the counter affidavits filed on behalf of the respondents, it is apparent that the post against which the petitioner claims to have been appointed is the 4th post. Only three posts were recommended and the name of the petitioner could not have been recommended on the 4th post. In this view of the matter and also that though, the petitioner claims that he has continuously works since the date of his appointment in the year 1986, but he is unable able to show any document, for regular payment of salary for his continuous service of 13 years. For the reasons stated above and also for the reason that the petitioner as stated practicing as an advocate after his registration in the year 1997, he cannot claim his regularization. Counsel for the petitioner refuted this fact that he stated practicing as an advocate from 1997, but has admitted that since 2002 he is actively practicing as an advocate. I do not find that petitioner can claim for regularization against non-teaching post of Sorter in R.N. Collge, Hajipur, for the reasons stated above. This application is dismissed. Sanjeet/ (Mridula Mishra, J.)