IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8240 of 2007 SHYAM BIHARI PRASAD SINGH, SON OF RAJENDRA SINGH, RESIDENT OF VILLAGE CHAPRA, P.O. CHAPRA, P.S. KANTI, DISTRICT- MUZAFFARPUR, AT PRESENT WORKING AS A LAB INCHARGE DEPARTMENT OF PHYSICS, R.D. COLLEGE- MUZAFFARPUR. …………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE VICE CHANCELLOR, B.R. AMBEDKAR, BIHAR UNIVERSITY, MUZAFFARPUR. 3. THE SECRETARY, HIGHER EDUCATION, GOVT. OF BIHAR NEW SECRETARIAT, PATNA. 4. THE REGISTRAR, B.R. AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 5. THE PRINCIPAL, R.D.S. COLLEGE, MUZAFFARPUR. ----------- For the petitioner: Mr. Awadh Kr Singh, Advocate. For B.R.A Bihar University: Mr. Ajay Behari Sinha, Advocate. For the State: Mr. Shailendra Kr Jha, A.C to S.C-9. 03/ 16.11.2010 Having heard counsel for the Petitioner and counsel for B.R Ambedkar, Bihar University as well as counsel for the State of Bihar in respect of following relief: “That this is a writ application for issuance of writ in the nature of writ of mandamus commanding the Respondents to regularize the services of the petitioner in terms of agreement held between B.R.A, Bihar University and University employees Union on 3rd of March 2006(Annexure-24) and also in light of full bench decision (B.K Singh & 2 Ors—Vrs.- The State of Bihar & Ors) by this Hon’ble Court to regularize the services of the persons under staffing pattern who were working since prior to 10/5/86 and further for issuance of a writ in the same nature for direction to the State Government to sanction the post which was held by the petitioner since 1982”. this court is of the considered opinion that grant of such relief will be in teeth of inter party judgment between the petitioner and the University in C.W.J.C No. 1099 of 1987 disposed off on 03.01.1991 and its affirmance in L.P.A No. 2 of 1992 leading to further dismissal of his next writ petition no. 9063 of 1991. Let it be noted that the petitioner had filed earlier a writ application being C.W.J.C No. 1099 of 1987, wherein, the learned Single Judge in his order dated 03.01.1991, while disposing off the same had held as follows: “ Besides asking for the relief regarding his remuneration the petitioner has also made a further prayer that a direction may be issued to the State Government to sanction one post of Lab-in-charge in the Department of Physics in R.D.S College so that the petitioner may be absorbed in that post. It 3 has already been indicated above that the so-called appointment of the petitioner was in clear contravention of Section 35 of the Act and therefore totally illegal and invalid and non-est in the eye of law. It is not disputed that the Principal had not put up any notice or advertisement for general information for appointment on the post on which the petitioner was given the appointment as lab-in- charge and the Principal ignoring all norms of propriety and by sidetracking the settled procedure that any appointment has to be made after putting notice for general information, recommended the petitioner’s name for appointment to the University which ultimately resulted in issuing of the office order annexure-2. Thus the first illegality committed by the Principal of the R.D.S. College was in making re-commendation for appointment to an unsanctioned post and the second and graver illegality was to make the re-commendation in complete violation of Article 16 of the Constitution. In this regard, the conduct of the Principal must be regarded as highly improper and he appears to have acted illegally in collusion with the petitioner in making recommendation for his appointment on the unsanctioned post of lab-in-charge in his college. The petitioner, therefore, has no claim whatsoever to the post of Lab-in- charge in the R.D.S. College and hence he has no locus standi to ask for a direction to the State Govt. for sanctioning the Post of Lab-in- charge in the Department of Physics in the R.D.S. College, Muzaffarpur. His prayer in this regard is therefore misconceived and untenable. Whenever the post is sanctioned, it will have to be filled up after following the due procedure namely after general 4 notice and then adopting the prescribed selection procedure for the same. The fact that the petitioner had worked on the unsanctioned post for sometime will not entitle him to any claim or right for the post in question. Keeping in view the principle contained in Section-70 of the Indian Contract Act it has been ordered above that the petitioner should be reimbursed for the period he worked in the capacity of lab-in- charge on the unsanctioned post in the R.D.S. College. However, it is made clear that the fact that the petitioner is being allowed to be reimbursed for the services he has rendered while working in the capacity of lab-in-charge in R.D.S. College, does not give him any claim or right to continue to work in that capacity on that post. As indicated above, the orders as contained in annexures 2 and 3 on the basis of which he has worked in the capacity of lab-in-charge in that college are totally illegal and incompetent and indeed are in contravention of the statutory provision. As such the University will be at liberty to take such steps and action as may be necessary in this regard. In the result the only relief which can be given to the petitioner is of being re-imbursed as indicated above and nothing more. The application is disposed of accordingly. It appears, thereafter an order was passed on 02.04.1991 by the Registrar of Universities directing Principal of R.D.S College to terminate the services of the petitioner and the petitioner had assailed 5 the said order dated 02.04.1991 in C.W.J.C No. 9063 of 1991. Let it be also noted that as the result of C.W.J.C No. 1099 of 1987 had also not been in favour of the petitioner, he had himself assailed the same in L.P.A No. 1063 of 1991 which was heard along with L.P.A No. 2 of 1992 by a division bench of this Court and both the appeals were disposed of by a common judgment dated 23.03.1994, wherein, the division bench having examined the scope of Section-35 Bihar State Universities Act had held as follows: “It is not in dispute in this case that no post of Laboratory-in-Charge was sanctioned for R.D.S. College, Muzaffarpur. the learned Single Judge, therefore, has rightly observed in paragraph 7 of the judgment that the admitted position is that the appointment of the petitioner on the post of Laboratory-in-charge was in an unsanctioned post. The learned Single Judge has further rightly observed that the provision of Section 35 of 1976 Act is mandatory in nature. In terms of the aforementioned provisions not only the posts are to be sanctioned by the State of Bihar but before filling up the said posts even prior approval of the State Government is necessary. The submission of Mr. Rajendra Prasad Singh to the effect that Section 35 of the said Act ultra vires the Constitution of India, cannot be entertained in this writ application inasmuch as a the State of Bihar has not been 6 impleaded as a party respondent in this writ application. It also does not lie in the mouth of the petitioner now to contend that in the earlier writ application, he had not made any prayer for regularization of his services. The petitioner has not stated that when he filed the earlier writ application, the cause of action was different. Even at that point of time, the petitioner could have and ought to have raised all questions which were available to him. He had chosen not to do so. The writ application of the petitioner is therefore, barred under the principles of constructive res judicata. It is true that the Vice- Chancellor had directed the petitioner to be posted in a sanctioned post at Jamunilal College to work in the physics department of R.D.S. College. Such an order passed by the Vice-Chancellor not only was contrary to and violative of the provisions of Section 35 of the 1976 Act but also violative of statute framed by the University relating to the recruitment of the staff in an affiliated College. If the appointment has been made in complete violation of the provisions of the statute, the same is void ab initio and thus no legal right can be derived on the basis thereof. In this situation, it cannot be said that the respondent University is estopped and precluded from questioning the legality of such order. It is true that equitable consideration may be in favour of the petitioner but in this case relief on the basis of equity cannot be granted in law. Even justice has to be administered in accordance with law. Section 35 of the Bihar State Universities Act reads thus- "NO post for appointment 7 shall be created without the prior sanction of the State Government:- Notwithstanding anything contained in this Act, no University or any college affiliated to such a University or any College affiliated to such a University, except such a University, except such college- (a) as established, maintained or governed by the State Government, or (b) as is established by a religious or linguistic minority; (i) shall, after the commencement of this Act, create any teaching or non- teaching post involving financial liability without the prior approval of the State Govt. (ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance; shall sanction any special pay or allowance or other remuneration of any kind including ex-financial implication to any person holding a teaching or non- teaching posts; (iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government. (2) Notwithstanding anything contained in this Act, no college other than one mentioned in Clauses(a) and (b) of sub-section (1), shall, after the 8 commencement of this Act, appoint any person on any post without the prior approval of the State Government. Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification. So far as the order passed by the Supreme Court is concerned, evidently, therein provision of Section 35 of 1976 Act was not considered. Such order was passed by the supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India which power the High Courts do not have. This Court in a number of decisions categorically held that the appointment made in violation of section 35 of the aforementioned Act is wholly illegal. Reference in this connection may be made to 1984 PLJR, 642, 1985 BBCJ, 438, 1993(2) PLJR 618, 1993(2) BLJR 893 and 1993(2) BLJR 897. Similar view has also been taken by this Court in the decisions reported in 1994(1) PLJR 68, 1994(1) PLJR 366 and 1994(1) PLJR 386. For the reasons aforementioned, we do not find any illegality in the judgment passed by the learned single Judge. In this view of the matter, we are also not inclined to grant any relief to the petitioner." The prayer, thus for regularization of the petitioner in this writ application is clearly barred by the principle of res judicata and constructive res judicata. 9 Additionally, this Court must hold that when the services of the petitioner were already terminated by an order of Registrar dated 02.01.1991, which stood affirmed by the dismissal of C.W.J.C No. 1063 of 1991, if the University or its Registrar or any of the Principal of the College have thereafter allowed the petitioner to continue in service that cannot be a ground for now regularizing the services of the petitioner. This court is also not in a position to accept the submission of learned counsel for the petitioner that in the year 2006 pursuant to some agreement between the Union and the University, if a decision was taken for making payment of adhoc salary that will create a right in the petitioner to also claim regularization of service from the date of his appointment. As noted above, this very issue of payment of salary was specifically rejected by this court in two writ applications of the petitioner and also affirmed by Division Bench in the appeal filed by the petitioner. Moreover, the order contained in Annexure-24 dated 14.04.2006, also was in nature of merely an interim 10 management by way of making payment of ad hoc salary which would not create any right in the petitioner to now claim regularization of his service especially when the division bench in inter party judgment has held the very appointment of the petitioner to be in teeth of Section-35 of the Bihar State Universities Act and the petitioner having no right to continue in service on the basis of such appointment. The remaining submission of learned counsel for the petitioner that, there was an Office Order dated 04.04.1996, which may have the effect of giving fresh appointment to the petitioner after termination of his service on 02.01.1991, has to be also only noted for its being rejected. In this respect, it becomes absolutely necessary to note here that petitioner’s initial appointment was made on 11.02.1982, and that having been found to be illegal and in teeth of Section- 35 of the Bihar State Universities Act was cancelled in view of the judgment of this Court and thereafter when such order of termination was challenged that too was affirmed by dismissing writ application of 11 the petitioner. Thereafter, the petitioner is said to be out of service for more than five and a half years and then comes the order dated 04.07.1996, which for sake of brevity and clarity is quoted herein below: “The Vice-Chancellor, after careful consideration of the case of Shri Shyam Bihari Prasad Singh, Laboratory Incharge in the Department of Physics, R.D.S. College, Muzaffarpur, who was appointed by the University and working since 11.2.1982 against unsanctioned post, has been pleased to order that he may be given equal treatment with other such employees of the college in view of the commitment of the State Government to regularize their services”. It would thus be noted, that the Vice Chancellor noting that the appointment of the petitioner was made against unsanctioned post since, 11.02.1992 and omitting to consider that such appointment has already been cancelled by Registrar of Universities dated 02.01.1991, had merely made a declaration that the petitioner was entitled to be given equal tretatment with other such employees of the College in view of the, commitment of the State Government to regularize their services. In the opinion, of this Court such order dated 04.07.1996, at least did not 12 amount appointment of the petitioner back in service much less annulling or revoking his order of termination dated 03.01.1991. Thus, in view of the fact that the petitioner’s services had already stood terminated way back in 1991, his claim for being regularized in service in this writ application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)