IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7736 of 2004 1. SUBASH PRASAD SINGH, SON OF SHRI DEONANDAN SINGH, RESIDENT OF VILLAGE RABAICH, P.S. BAKHTIARPUR, DISTRICT PATNA, AT PRESENT POSTED AS STORE-KEEPER IN BOTANY IN SHRICHAND UDASIN COLLEGE, HILSA, NALANDA. 2. KRISHNADEO PRASAD, SON OF LATE BINDESHWARI RAM, RESIDENT OF VILLAGE SHAMASH, P.S. BARBIGHA, DISTRICT SHEIKHPURA, AT PRESENT POSTED AS STORE-KEEPER IN PHYSICS DEPARTMENT, SHRICHAND UDASIN COLLEGE, HILSA, NALANDA. 3. DHARMNATH SINGH, SON OF LATE RAM SINGAR SINGH, RESIDENT OF VILLAGE NARMA, P.S. FATWAH, DISTRICT PATNA, AT PRESENT POSTED AS STORE-KEEPER IN CHEMISTRY DEPARTMENT, SHRICHAND UDASIN COLLEGE, HILSA, NALANDA. ---------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 2. THE DEPUTY SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE DIRECTOR, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 4. THE MAGADH UNIVERSITY THROUGH ITS VICE-CHANCELLOR, BODH GAYA, GAYA. 5. THE VICE-CHANCELLOR, MAGADH UNIVERSITY, BODH GAYA, GAYA. 6. THE PRINCIPAL, SRICHAND UDASIN COLLEGE, HILSA, NALANDA. 7. SHRI VIJAY KUMAR SINGH, SON OF LATE KAILASH PRASAD, RESIDENT OF VILLAGE YARPUR, P.S. HILSA, DISTRICT NALANDA, AT PRESENT POSTED AS ROUTINE CLERK IN SHRICHAND UDASIN COLLEGE, HILSA, NALANDA. 8. DEO SHARAN SINGH, SON OF NOT KNOWN TO THE PETITIONER, RESIDENT OF VILLAGE RERI, P.S. HILSA, DISTRICT NALANDA, AT PRESENT POSTED AS ROUTINE CLERK IN SHRICHAND UDASIN COLLEGE, HILSA NALANDA. 9. ARUN PRASAD, SON OF NOT KNOWN TO THE PETITIONER, RESIDENT OF MOHALLA STATION ROAD HILSA, P.S. HILSA, DISTRICT NALANDA, AT PRESENT POSTED AS ROUTINE CLERK IN SHRICHAND UDASIN COLLEGE, HILSA, NALANDA. -------------------------------------------------------------------------------------------- RESPONDENTS For the petitioners :- Mr. Shailendra Kumar Sinha, Advocate Mr. Raj Kumar, Advocate For the State :- None. For Private Res. :- Mr. Pramod Kumar, Advocate For Magadh Uni. :- Mr. Hans Raj, Advocate *********** 4 1.12.2010 The petitioners were duly appointed on Class IV posts working in Shrichand 2 Udasin College, Hilsa, Nalanda on the post of Peon. Their hopes arose, when Annexure-1 was issued by the University in which there was a decision to consider filling up Class III posts of the College by granting promotion to those persons working against Class IV posts. In the mean time, some 22 persons were appointed on Class III posts by the College. The petitioners filed CWJC No. 1846 of 1981 challenging the appointment of respondent nos. 4 to 15 on Class III posts on the ground that there was already a circular in 1978 (Annexure-1) by which the University had taken a decision to consider the Class IV employees for promotion to Class III posts. This Court directed that the Magadh University should consider the case of promotion of the petitioners on Class III posts. It has also been noticed by this Court that there was sufficient number of posts available and as such the appointments of the respondents were not quashed. Subsequently by a resolution dated 18.7.1984, the class III appointments of respondents of CWJC No. 1846/1981, made by the College, were cancelled by the Syndicate 3 on the ground that they were made without prior approval of the State Government (Annexure-4). After cancellation of the said appointments by the Syndicate, those 13 persons were reappointed for a period of six months by the University vide a letter issued by the Finance Officer. Again the petitioners moved this Court by filing CWJC No. 9316 of 1989, which was disposed of on 14.1.1992. The grievance of the petitioners was that other Class IV employees of the College have been promoted to Class III category while some of the posts are lying vacant, which ought to be filled up by promoting the petitioners instead of which temporary arrangements have been made to fill up the posts by appointing the respondents in the aforesaid writ application. The Court directed the University to consider the cases of the petitioners in view of the fact that it has been pending for a very long time. Specific direction was given that the matter should be considered by the Vice-chancellor of the University. The petitioners thereafter were given promotion to the Class III posts vide 4 Annexure-8 dated 23.12.1992, while two persons, namely, Rajendra Prasad Singh and Kashi Raut were reverted to Class IV posts. This led to the filing of CWJC No. 90 of 1993, which was disposed of on 13.4.1994 by which persons who were reverted i.e. Rajendra Prasad Singh and Kashi Raut challenged the promotion of the petitioners. This Court quashed the order of promotion passed in favour of the petitioners on the ground that the order reverting the writ petitioners of CWJC No. 90 of 1993 was passed without giving them an opportunity of hearing and there was a direction that a fresh order may be passed. After the entire exercise, the Vice-chancellor passed fresh orders promoting the petitioners after hearing both the petitioners and the aforesaid reverted candidates. The matter was perhaps sent for approval to the State Government which resulted in Annexure-11. By Annexure-11, the State Government has fixed the salary of the petitioners treating them to be Class IV employees. The reasons given in Annexure-11 5 are that the posts are not sanctioned under Section 35 of the Bihar Universities Act, that the order granting promotion is against the order passed in CWJC No. 5859 of 1996 dated 21.2.2000 and for the reason that any promotion granting pay scale fixed by the University would always be subject to the approval of the State Government. The petitioners were given time to file a representation before the State Government within a period of 15 days which is mentioned in the impugned order. It has been submitted and stated that the order dated 10.6.2004 was not circulated to the petitioners and, therefore, they had no knowledge, and could not file a representation against the impugned Annexure-11 within the aforesaid 15 days. From the facts aforesaid, there appears to be a dispute with respect to those persons who have been directly appointed to Class III posts and the petitioners and others like them, who are claiming that they should be granted promotion to the said Class III posts. It 6 is nowhere stated on behalf of the University that the posts which are sought to be filled are not sanctioned by the State Government. Therefore, I find that there is no basis on which the State Government could have held that the posts are not sanctioned posts. This issue infact has never been raised by the University or any other party in the various writ applications filed before this Court. The objection of the State Government that the order contained in Annexure 10 is in violation of the orders passed in CWJC No. 5859 of 1996 does not seem to be valid in view of the fact that the order which is reported in 2000 (2) PLJR 867 does not seem to deal with promotion of persons working against Class IV to Class III posts. The only question which has been considered by the Court appears to be with respect to grant of Time Bound Promotion which is at paragraph 56 and 57 of the order which I am quoting below: 56. “The 3rd interim report of the Committee next deals (in Annexure VIII) with the issue of time bound promotion to non- teaching employees. In connection with this issue it may be noted that the question of admissibility of time bound promotion to the non-teaching employees of the Universities came up for consideration before this Court 7 in CWJC No. 12502 of 1993. By judgment and order, dated 24.9.1996 a learned singe Judge of this court gave the following directions: “The respondent State of Bihar and the authorities are directed to come out with time bound promotion policy immediately and make the same applicable with respect to the non- teaching employees of different University, as is provided in paragraph 11 of Finance Department’s Resolution No. 10770 dated 30 December, 1981. Such notification is to be issued within a period of one month from the date of receipt/production of a copy of this judgment. The respondent State of Bihar and its authorities are also directed to release such fund in favour of one or other University, including Patna University, as they are requisition, so that they may release the consequential benefits of arrears of salary to their employees by virtue of such first time bound promotion and second time bound promotion.” 57. Against the judgment passed by the learned single Judge, L.P.A. No. 1255 of 1995 has been preferred which is pending before this court. Admitted position, however, is that though no stay is granted in the L.P.A., the State Government has not issued any notification as directed by the writ court. The Committee has, therefore, rightly pointed out that the concerned officials in the State Government clearly seem to be in contempt of this court. However, I need not go into the question of contempt any further as the Secretary, Higher Education in course of his submissions on this issue clearly stated that the Government was completely agreeable that subject to the decision in L.P.A. No. 1255 of 1995 the scheme of time bound promotion as applicable to the Government employees may be applied mutatis mutandis to the non-teaching employees of the Universities for the period 1.4.1981 to 1.1.1996 when it was in force in the Government. The Committee is accordingly advised to proceed with the preparation of the budget in the light of the Government stand as indicated here and on the lines 8 suggested by the Committee in Annexure VIII of its 3rd interim report.” I, therefore, fail to understand how the State has come to the conclusion that the case of B.R. Ambedkar Teachers’ Association and ors. Vs. The State of Bihar & Ors. reported in 2000 (2) PLJR 867 would be applicable to the facts of the present case. The facts that needs to be determined in this case is the number of sanctioned Class III posts, the vacancies in the Class III posts at the relevant time when the case of the petitioners was to be considered and thirdly the number of posts that would be reserved for promotion from Class IV to Class III in the said cadre. I, therefore, remand this matter back to the State Government for reconsideration. The Magadh University should forward all concerned documents with respect to the number of Class III posts available, the number of vacancies available in the year 1981 and the circulars or regulations with respect to the quantum of promotion to be made from Class IV to Class III posts. The 9 Magadh University is required to send the said documents to the Deputy Secretary, Higher Education Department within a period of eight weeks on receipt of a copy of this order which may be produced by the petitioners within a period of eight weeks. The State Government will thereafter pass appropriate orders within a period of three months on receipt of the records and information. The State Government may issue notice to all concerned parties who may be affected by the order of the State Government before passing any order. The State Government is directed to pass final orders on valid service of notices, if any are issued, within a period of three months. This writ application is disposed of with the aforesaid observations and directions. Sanjay ( Sheema Ali Khan, J.)