IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12403 of 2007 1. Ram Kripal Chaubey, son of late Juit Bandhan Chaubey 2. Daya Nand Tiwari, son of Raj Narayan Tiwari 3. Dinesh Kumar Pandey, son of Badri Narayan Pandey 4. Prem Kumar Singh (Yadav), son of Ghura Singh 5. Surendra Nath Pandey, son of Jagannath Pandey All Sl.No. 1 to 5 at present are working as Clerk, Malakar, Libarary Assistant, Safaikar, P.T.I. Library Peon and Hostel Poen respectively in Shriniwas Mukund Ramanuj Sanskrit Mahavidyalaya, Basaunkala, Buxar, District Buxar … Petitioners Versus 1. Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga District Darbhanga through its Registrar 2. Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga District Darbhanga through its Registrar 3. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar, Darbhanga District Darbhanga through its Registrar 4. The Governing Body, Shriniwas Mukund Ramanuj Sanskrit Mahavidyalaya Basaunkala, Buxar District Buxar, through its Secretary 5. The State of Bihar through Secretary Higher Education Human Resources Department, New Secretariat, Patna … Respondents ---------------------------------- For the Petitioner : Mr. Durga Nand Jha, Advocate For the University : Mr. Harendra Prasad Singh For the State : S.C.-IV --------------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (24.11.2011) Mihir Kumar Jha, J. The five petitioners claiming to be Class III and Class IV employees of Shriniwas Mukund Ramanuj Sanskrit College, Basaunkala, Buxar (hereinafter referred to as „the College‟) have prayed for the following reliefs: “I. Issuance of a writ in the nature of mandamus directing and commanding the respondents 1 to 3 and 5 to regularize/ absorb the services of petitioners on non-teaching posts on which they are working from the date of their initial appointment on staffing pattern by taking into consideration that the petitioners have been continuously working since the date of their appointment duly approved by the respondent 2 Kameshwar Singh Darbhanga Sanskrit University and even ad-hoc payments have been made to some of them and thereby to pay them their entire backwages with adequate amount of interest @ 18% per annum. II. Issuance of further writ in the nature of mandamus commanding the respondent University and the State Government to take decision on the point of regularization at the earliest and for the said purpose a time frame may be fixed for the University to send the necessary particulars, if not sent earlier, and for the State to take final decision in the matter including release of necessary fund. III. Issuance of an appropriate declaration and holding that the services of petitioners are fit to be regularized/ absorbed against the posts, they hold, in view of decision of full Bench of this Hon‟ble Court in the case of Braj Kishore Singh vs. the State of Bihar & ors. as reported in 1997(1) PLJR 599, Division Bench Judgment of this Hon‟ble Court dated 25th June, 2003, and in view of Government decision contained in memo no. 1074 dated 5.6.2006. IV. Issuance of an appropriate holding that once the State Government has laid down guide lines vide resolution of the Human Resources Development Department contained in memo no. 989 dated 16.5.1991, the respondents are required to take a decision in the light of those guidelines which clearly stipulates that benefits of regularization is available to those appointed prior to 10.5.1986 against available vacancies because all the petitioners are 10.5.1986 appointees and are entitled to remain in service and their services are fit to be regularized/ absorbed on staffing pattern.” Mr. Durganand Jha, learned counsel for the petitioners, would submit that the petitioners came to be appointed by the competent Governing Body of the College which is an affiliated College of Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as „the University‟). He has also highlighted that when the appointment of the petitioners was made though they were not working against the sanctioned post but in course of time they were covered by the staffing 3 pattern as recommended by a Committee of the State Government and therefore, when their payment of salary also was made by the College, the petitioners would be entitled to get their salary regularly from the funds of the State Government. He has in this regard relied on a Division Bench judgment of this Court in the case of Bihar Sanskrit Mahavidyalaya Pradhyapak Karamchari Mahasangh & ors. vs. the State of Bihar & ors. (C.W.J.C.No. 9222/1991) disposed of on 25.6.2003 and the consequential order passed by the State Government on 5.6.2006, as contained in Annexures 13 and 14 to the writ application respectively. Learned counsel for the State by filing a counter affidavit has taken a plain and simple stand that nothing is pending at the level of the State Government, inasmuch as such proposal for creation/ sanction of post as per staffing pattern for the College in question has to be routed through the University but no such proposal has been received as yet from the University. Counsel for the University, on the other hand, has taken a stand that though some information was received from the College as with regard to the persons working against the post under the staffing pattern but no formal proposal was received for creation and sanction of such post from the Governing Body of the College and as such, the matter has not been sent by the University to the State Government. In the considered opinion of this Court there is something amiss in the stand of the parties. In the University there are two types of College, namely, constituent Colleges and affiliated Colleges. Normally the burden of payment of salary of an affiliated college has to be borne by the management but in Sanskrit University there is an exception, inasmuch as a large number of affiliated colleges have been also given the benefit of payment of salary from the Government fund for the persons working against the sanctioned post. It is this aspect of the matter which 4 has given a hope and belief to the petitioner to claim relief of regularization of service which to say the least has been very loosely used in this writ application. Regularization of service can only be made by the competent appointing authority. In the case of the petitioners it is the Governing Body which is their appointing authority. Regularization of service again can be made only if there be a sanctioned post. For the petitioners there is no sanctioned post, inasmuch as they themselves claim to be only covered by the staffing pattern. The staffing pattern is only prescribed number of post which can be created in a Constituent or affiliated College. Such staffing pattern being the model strength of number of teachers/ non-teaching employees, the State Government in terms of Section 35 has to decide creation of such post as per requisition made by the affiliated colleges receiving grant of payment of salary from the State Government and that also in the light of the recommendation made by the University. It is thus clear that there has to be a formal proposal to be routed by the appointing authority, namely, governing body of the affiliated colleges for creation of post by establishing that the College fulfils the requisite conditions for creation of such post. One of such requisite condition as per prescribed staffing pattern is number of students of the College in each academic year. The other requirement would be as to whether on such post the persons were appointed by following prescribed procedure and also possessing requisite qualification. In the present case there are documents to show that the Governing Body had from time to time has been submitting its proposal/ requisition for sanction of post as per prescribed staffing pattern. One of such letter of the College dated 4.5.2003, as contained in Annexure 12, would go to show that the Registrar of the University was requested for considering the cases of seven persons shown to be working as “Aupbandhik Karamchari” against the post covered by the staffing 5 pattern. Their dates of appointment having been shown between 26.1.1980 to 30.3.1986 , if such a proposal was sent by the Governing Body of the College the University in all fairness ought to have forwarded to the State Government for taking a final decision for creation and sanction of post as per staffing pattern. It is this aspect of the matter which has been hotly contested by both counsel for the petitioners and the counsel for the University. As noted above, the specific averment supported by a document, contained in Annexure 12, showing submission of proposal by the Governing Body of the College of the petitoners to the University has not been controverted by the University in its counter affidavit and yet its counsel has been instructed to make a oral submission that such document was never received in the office of the University. This Court however would not like to go into this aspect, inasmuch as if the case of the petitioners would require a final consideration by the State Government on a recommendation made by the University, if it has been held up by the University only on account of want of formal letter of the Governing Body to the University, this Court would find it necessary that the process of such a final consideration must be started even now. In that view of the matter, this Court would direct the Governing Body of the College of the petitioner to submit a formal proposal for creation and sanction of posts held by the petitioners in terms of the staffing pattern by giving all the requisite details with all supporting document including number of students in the College from the time of appointment of the petitioners and till date. Additionally, the Governing Body will also disclose the details with regard to manner of appointment of the petitioners as also their qualification possessed by them at the time of their initial appointment and as of now. Once Governing Body of the College of the petitioners would submit such a detailed proposal to the University, which it must do within a period of three months from the date of receipt/ production of a copy of this 6 order, the University on its part having examined the same in a period of next two months shall forward to the State Government with its appropriate recommendation, whereafter the authorities of the State Government must take their final decision within a period of next two months from the date of receipt of such proposal from the University. While doing this exercise both University and the State Government will be required to act in accordance with the directions given by the Division Bench of this Court in the case of Bihar Sanskrit Mahavidyalaya Pradhyapak Karamchari Mahasangh (supra) and the petitioners will not be discriminated and/or treated differently in the matter of their being brought within the purview of sanctioned post as was done also by the State Government in respect of other non-teaching staff in its order dated 5.6.2006 while complying the order of this Court in the case of Bihar Sanskrit Mahavidyalaya Pradhyapak Karamchari Mahasangh (supra). Before parting with this Court would find it necessary to indicate that this problem of creation of additional post as per staffing pattern is virtually vexing each and every affiliated College of Sanskrit University save and except a few of them whose cases were considered and decided by the State Government in the light of the judgment in the case of Bihar Sanskrit Mahavidyalaya Pradhyapak Karamchari Mahasangh (supra). It is, therefore, high time that the University as one time exercise should direct all such affiliated Colleges to submit its proposal for creation of sanctioned post as per staffing pattern, if need be, so that the State Government ultimately takes its final decision and a finality is arrived at in the matter of availability of sanctioned post in all such affiliated colleges where the State Government has been bearing expenditure for payment of salary of teaching and non-teaching staff. Ad hocism should also be avoided in the matter of financial commitment and grant of fund at least in relation to discharge of liability by the State towards the educational 7 institutions. This Court hopes and believes that the Vice Chancellor of Sanskrit University and the Director, Higher Education would rise to the occasion and would take steps to bring such ad hocism to an end. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 24th November 2011 N.A.F.R./Surendra/