IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.901 of 2008 IN (CIVIL WRIT JURISDICTION CASE 11755/2005) Against the judgement and order dated 3.9.2008 passed by Hon’ble Mr. Justice Shailesh Kumar Sinha in C.W.J.C. No.11755 of 2005. ========================================================== = Nand Lal Mandal, son of late Balgovind Mandal resident of Mohalla-Jawaripur, P.S.-Tilkamanjhi (Kotwali) Town and Distt.-Bhagalpur. …… ……. …… Petitioner-Appellant/s Versus 1. The Tilkamanjhi Bhagalpur University, Bhagalpur through its Registrar 2. The Vice-Chancellor, the Tilkamanjhi Bhagalpur University, Bhagalpur. 3. The Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur 4. The Finance Officer, Tilkamanjhi Bhagalpur University, Bhagalpur. 5. The Principal, S.M. College, Bhagalpur. 6. The State of Bihar, through the Commissioner- cum-Secretary Department of Finance, Govern ment of Bihar, Patna. 7. The Commissioner-cum-Secretary, Depart ment of Higher Education, Government of Bihar, Patna. 8. The Director, Department of Higher Education, Government of Bihar, Patna. .... .... Respondent/s ========================================================== = Appearance : For the Appellant/s : Mr. Purushottam Jha, Advocate For the University : Mr. Ashok Kumar Keshri, Advocate For the State : Nutan Sharma, A.C. to G.A.-5 ========================================================== = Patna High Court LPA No.901 of 2008 dt.25-07-2011 2 CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH) Heard learned counsel for the appellant as well as learned counsel for the respondent Tilkamanjhi University, Bhagalpur. The present Letters Patent Appeal has been filed against the order dated 3.9.2008 passed by the learned single Judge in C.W.J.C. No.11755 of 2005 ( Nand Lal Mandal Vs. Tilkamanjhi University & ors.). The writ petition has been filed in the year 2005 for a direction to the Respondent University to make payment to the petitioner of his entire retiral benefits and other admissible dues. There was a further claim for payment of interest on the same. During the pendency of the writ petition the Court had directed the Respondent University to dispose off the pending representation which has been filed on behalf of the writ petitioner and others. It appears that by order dated 29.6.2008 the said representation stood disposed off by them and the petitioner’s earlier promotion given in the year 1981 was held to be unsustainable and in that view of the matter, the salary etc. payable to the petitioner was found to be payable only for the post of Class-IV and not for the promotional Class-III post. Finally, the writ petition came to be disposed off Patna High Court LPA No.901 of 2008 dt.25-07-2011 3 by the order under appeal on 3.9.2008 by which the learned single Judge has given liberty to the petitioner to challenge the order dated 29.6.2008 in an appropriate proceeding. With regard to his claim of retiral benefits having been paid after more than two years, 10% interest has been allowed on the same. Learned counsel for the appellant points out that there are several infirmities in the order dated 29.6.2008 both on facts as well as in law by which his claim for Class-III post has been negated. He submits that the order is also self contradictory in as much as on the one hand it is stated that the University was neither empowered to appoint nor create a post prior to the approval by the State, whereas on the other hand, the contention was that the petitioner was promoted to the post of Class-III under staffing pattern which was not a sanctioned one by the Principal of the college who was not the competent authority for the said purpose. He points out that other persons similarly situated, who were junior to him, have been granted such approval of promotion which was regularised by the University. According to him, in the case of the petitioner and two other persons the same has been denied only on the ground that their promotion could not be regularised as they did not prefer to follow the procedure as adopted by the University for the purpose. He submits that the post to which the appellant was promoted comes under the staffing pattern and , as such, the bogey of there being no sanctioned post is not sustainable. Patna High Court LPA No.901 of 2008 dt.25-07-2011 4 He also submits that the other three persons whose promotions were regularised were juniors to the appellant. With regard to his promotion being made by the Principal, he submits that during the period when he was so promoted the Vice Chancellor had delegated such power to the Principal of the college concerned, though it was subject to approval by the Vice Chancellor. Learned counsel appearing on behalf of the Respondent University on the other hand while opposing the contention advanced on behalf of the appellant submitted that the appointment being against the provision of section 10(6) of the Bihar State Universities Act, 1976 is not sustainable since it is only the Vice Chancellor who has the authority to make such appointment and in the present case since admittedly it was the Principal of the college, such promotion cannot be sustained in the eye of law. He further submits that such promotion, which was granted in connivance with the persons who were in authority and that if any person has acted contrary to law, the authority or the University cannot be made liable for such illegal act committed by the persons in their individual capacity. For this reason also he states that even the promotion given by the Principal at the relevant time was not totally over board. He lastly draws the Court’s attention to internal page-7 of the order of the learned single Judge and points out to the findings where it is stated that…….“ It is not in dispute that the University did not issue any order approving the promotion Patna High Court LPA No.901 of 2008 dt.25-07-2011 5 granted to the petitioner to class III post, however,.......”. Elaborating on this he submits that once there is a finding that his promotion was never approved by the University, such order of promotion cannot give undue benefit and advantage to the appellant. After hearing the rival contentions of the parties this Court would like to deal with the issues involved one by one. Firstly, the letter of the Principal granting promotion dated 1.5.1981 states that promotion was being given upon the recommendation of the Committee constituted for the purpose under the staffing pattern. The said letter was issued during the period the Principal was delegated the power of appointment of 3rd and 4th grade employees by order of the Vice Chancellor purportedly passed under the powers of the Syndicate. The said notification is numbered as 195/77 dated 14.5.1977. The question whether the appointment was made in the teeth of Section 10(6) of the Bihar State Universities Act, 1976 is not of much relevance in the present case for the reason that the order granting such promotion was subject to approval of the Vice Chancellor and/or the Syndicate but subsequently by order dated 3.12.1983 the Vice Chancellor had approved the pay fixation of the appellant. In that view of the matter, explicitly, by conduct it would be deemed that approval was also given to such promotion since in the absence of such approval the pay fixation could not have been approved. It is relevant to note here that the authorities approving fixation of Patna High Court LPA No.901 of 2008 dt.25-07-2011 6 pay included the one who was competent to make such appointment under Section 10(6) of the Bihar State Universities Act, 1976, being the Vice Chancellor of the University himself. This issue stands settled in favour of the appellant. The other objection raised by the respondent university is that there was no sanctioned post on which the petitioner-appellant was appointed. Thus, even if the said promotion was granted the same could neither have been given effect to nor any benefit given for the said post in view of the fact that no sanctioned post existed. This contention of the learned counsel for the University is fit to be rejected for the reason that the order dated 29.6.2008 of the University itself states that the petitioner was promoted to the post of Class-III under staffing pattern. Once this position is admitted by the University itself, it is not open to the learned counsel for the University to take the plea of non-existence of sanctioned posts, since it is well settled by now that the posts which come under the staffing pattern are deemed to be sanctioned. This view has been taken in a Full Bench decision of this Court in the case of Braj Kishore Singh and others Vrs. The State of Bihar and others reported in 1997(1) PLJR 509. The said judgment has already been affirmed by the Hon’ble Apex Court. It would be relevant to state in this context that in the judgment of the Full Bench of this Court in the case of Braj Kishore Singh (supra) it has been held that once under the staffing pattern the posts have been recommended to the State Patna High Court LPA No.901 of 2008 dt.25-07-2011 7 Government but not yet sanctioned, the same would be deemed to be sanctioned. In the present case in the order dated 29.6.2008 of the University itself it is mentioned that the petitioner was promoted to the post of Class-III under the staffing pattern which goes to show that posts were available under the staffing pattern and thus the judgment under reference will cover this issue in favour of the appellant. In that view of the matter, the appointment/promotion of the appellant to Class-III post cannot be said to be contrary to law or on a non-sanctioned post. The last contention of the learned counsel for the respondent University was that since it has been recorded in the order under appeal that it was not in dispute that the University did not issue any order approving the promotion granted to the petitioner to Class-III post, his case could not be considered as valid promotion to Class-III post. Therefore, this Court may not interfere and grant such relief by upholding such promotion to the appellant. At the cost of repetition, what has been stated earlier, since we have held that subsequent letter of the Vice Chancellor dated 3.12.1983 by which the pay fixation of the appellant was approved by the Vice Chancellor, it has to be held that impliedly the approval for such promotion has also been granted by the Vice Chancellor post facto. In view of the discussion made hereinabove, we hold that the promotion of the petitioner to Class-III post was valid in the eye of law and the same could not have been reviewed Patna High Court LPA No.901 of 2008 dt.25-07-2011 8 after such a long period specially in the absence of any specific order cancelling such promotion. It is also admitted position that prior to such review by the respondent University, absolutely no procedure known in law was followed and no show cause was issued to the appellant. This Court thus holds that the petitioner shall be entitled to all consequential benefits pursuant to his having been promoted in the year 1981 and no recovery is to be made and if done, the same shall also be returned to him. He shall also be given all post retirement benefits treating his promotion valid from the year 1981 itself. It goes without saying that whatever statutory interest is permissible under the law, the same should be given to the appellant. All further consequential benefits should also be given to the appellant as provided under the statute. With the aforementioned directions the order of the learned single Judge is set aside and the Letters Patent Appeal stands allowed. Patna High Court, The 25th July, 2011 Sudip/NAFR ( T. Meena Kumari, J.) ( Ahsanuddin Amanullah, J. )