IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6873 of 2000 1. NARESH KUMAR ROY, son of late Muni Lal Roy, resident of village Aasmani Chak, P.S. Rajaun, District Banka 2. Bharat Mandal, son of late Lalji Mandal, resident of village Jan Muhammadpur, P.S. Kahalgaon, District Bhagalpur 3. Raj Kumar Sahni, son of Shri Gurucharan Sahni, resident of village Kagji Tola, Kahalgaon, P.S. Kahalgaon, District Bhagalpur 4. Anil Prasad Ram, son of late Shripati Ram, resident of village Akbarpur, P.S. Kahalgaon, District Bhagalpur 5. Ramanand Singh, son of late Ganpat Prasad Singh, resident of Kurma, P.S. Kahalgaon, District Bhagalpur 6. Chunchun Prasad Singh, son of late Chetan Singh, resident of village Adalpur, P.S. Sanokhar, District Bhagalpur 7. Dhirendra Nath Roy, son of Sri Devendra Nath Roy, resident of village Rasalpur, P.S. Kahalgaon, District Bhagalpur 8. Ramphal Mandal, son of late Suresh Mandal, resident of village Jamunia, P.S. Navgachhiya, District Bhagalpur … Petitioners Versus 1. THE TILKA MANJHI BHAGALPUR UNIVERSITY, though its Registrar, at Bhagalpur 2. The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 3. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 4. The Deputy Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 5. The Principal, Shankar Sah Vikramshila Mahavidyalaya, Kahalgaon 6. The Principal, Gajadhar Bhagat Mahavidyalaya, Navgachhiya 7. The State of Bihar, through the Commissioner cum Secretary, Department of Higher Education, Govt. of Bihar, New Secretariat, Patna 8. The Director, Department of Higher Education, Govt. of Bihar, New Secretariat, Patna … Respondents. ----------- 11. 5.7.2010 Heard counsel for the petitioners and the counsel for the University. 2 Counsel for the petitioners would submit that since petitioner no.5 has already died he will not press this application of petitioner no.5. As with regard to petitioners no. 1, 2, 3, 4, 6 and 7 he would submit that during the pendency of this writ application their services have been regularized by the University and therefore, he is not going to press this application as against them as well. Mr. Ashok Kumar Keshari, however, does not accept this position and says that as per counter affidavit the services of petitioners no. 1, 2, 3 and 7 only have been regularized. Since the counsel for the petitioners himself does not want to press this application of petitioners no. 1, 2, 3, 4, 6 and 7, this Court has to proceed that this writ application survives only as with regard to petitioner no.8. As with regard to petitioner no.8, Mr. Jha would submit that he will require some time to file rejoinder to the supplementary counter affidavit. Such 3 counter affidavit having already been filed way back with a copy thereof there would be no difficulty in rejecting such prayer, inasmuch as the pleadings which had to be made if not completed within a period of last ten years this Court cannot keep on waiting for the counsel for the petitioners to file rejoinder. As with regard to petitioner no.8 Mr.Jha has three submissions, namely: (i) The petitioner no. 8 was appointed by the Principal of the College in the year 1982 and since then he had been continuously working not only upto 1999 but even thereafter despite the Chancellor’s order of not taking work from any daily wager employee as the Principal of the College had continued to take work from him and as such he entitled for being regularized in service of University on account of being his continuation as a daily wages employee of the College over 28 years. (ii) Juniors to the petitioners have been retained or regularized in service leaving the petitioner no. 8 discriminated in the matter of regularisation of his 4 service. (iii) No rationale has been followed by the University even in the alleged regularization. Mr. Keshari, while answering these submissions, seeks leave of this Court to refer to the supplementary counter affidavit which was filed pursuant to the order of this Court wherein following stand has been taken: “4. That in this regard, it is submitted that Hon’ble Chancellor of the Universities of Bihar vide its order dated 4.12.2005 directed the respondent University to take appropriate steps for regularization of services of all the daily wager’s whether Class III or Class IV against vacant sanctioned post in compliance of the order of the Hon’ble High Court passed in C.W.J.C.No. 11854 of 1999 Nikhil Kr. Jha & ors. and other similar writ petition’s and prepared a list strictly as per seniority and in compliance of reservation roster and the University was directed to recommend such names to State Govt. for regularization of daily wage’s employees and the State was 5 directed to approve their name and release fund for their salary. 5. That following the aforesaid directions of the Hon’ble Chancellor, the respondent University adopted procedure of regularization of services of daily wages employees of the University alongwith the petitioners of this writ petition. 6. That in this regard services of such daily wages employees, who were duly appointed by the competent authority and were getting their wages regularly, were regularized as per the direction of the Hon’ble Chancellor vide office orders no. 84, 85, 86, 87, 88 and 89 of 2006 dated 27.5.2006. 7. That in this regard it is further submitted that the service of the petitioner no.1 Naresh Kumar Roy was regularized vide office order no. 84/06 dated 27.5.2006 at Sl.No. 48 and service of petitioner no.2, Bharat Mandal, petitioner no.3, Raj Kumar Sahni and petitioner no.7 Dhirendra Nath Roy were regularized vide office order no. 89/06 dated 27.5.2006 at Sl Nos. 21, 62 and 05. 8. That the rest of the petitioners did not fulfil the required criteria of regularization, their services were not regularized.” 6 It would, thus, be clear from the aforementioned stand of the University that a criteria was evolved for regularizing the services of daily wagers. The criteria followed led to the orders dated 27.5.2006 in the case of the petitioners themselves but even after the period of four years of issuance of that order the petitioner no. 8 could not come with any document to show that while his counter part petitioners were regularized, he was left out on irrelevant consideration and thus discriminated. Discrimination is a question of fact and has to be adjudicated only when pleading is made to this effect in writ petition. Such details are however absolutely lacking in the case of petitioner no.8. That being so, this Court is not in a position to accept the submission of discrimination as alleged by the petitioner no.8. The plea of juniors being retained again has to be strictly shown on the basis of persons who were appointed in the same category and by the same authority. Such pleadings again being absent this Court 7 cannot accept the oral submission of the counsel for the petitioner no. 8 who would only try to explain this with some documents here or there which are also not on record of this case. The submission that the petitioner no. 8 also fulfils the criteria as evolved for the purposes of regularization has been explained in the supplementary counter affidavit, such submission of learned Counsel for the petitioner no. 8 cannot be accepted also for a simple reason that the Principal of the Constituent College at no point of time had been vested power of making appointment on Class-III and Class-IV posts in a constituent College. Such power of appointment invariably in terms of Section 10 of Bihar State Universities Act was/is with the Vice Chancellor alone and the Principal of the Constituent College could not have been even engaged a person on daily wages. In that view of the matter, this Court will have no difficulty in rejecting the submission of the counsel for the petitioner that the petitioner no. 8 was 8 also fulfilling the criteria. This Court is also not aware of the other persons about whom the petitioner no.8 claims that they too were regularized despite being appointed by the Principal. However if that be so and the petitioner no.8 can still demonstrate that despite others also being appointed not by the competent authority and despite not getting their services ultimately regularized by the University on 27.5.2006 in the light of direction given by the Hon'ble Chancellor in his order dated 4.12.2005 were subsequently regularised by the University he will have liberty to move the Vice Chancellor of the University to press his case of regularisation who in the event of filing of such a claim by the petitioner no. 8 will decide the same strictly in accordance with law. With the aforementioned limited observation and liberty this application is disposed of. (Mihir Kumar Jha,J.) Surendra/