IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15230 of 2009 ====================================================== 1. Neena Verma W/O Sri Akhileshwar Kumar R/O Mohalla- Old L.I.C. Colony, Sheopuri, P.S.- Shastrinagar, Distt.- Patna At Present Working As Demonstrator, Department Of Psychology, Patna Women'S College, Under Patna University, Patna .... .... Petitioner/s Versus 1. Patna University, Patna Thorough The Registrar 2. The Vice Chancellor Patna University, Patna 3. The Registrar Patna University, Patna .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.17978 of 2009 ====================================================== 1. Dr. Binay Kumar Singh S/O Sri Bhuneshwar Pd. Singh Flat No.-106, Gyan Apartment, P.S.- Kankarbagh, Patna .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Chancellor Raj Bhawan, Patna 3. The Principal Secretary Deptt. Of Human Resource And Development (Higher Education), Govt. Of Bihar, Patna 4. The Vice Chancellor Patna University, Patna 5. The Registrar Patna University, Patna 6. The Principal, B.N. College Patna .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.18214 of 2009 ====================================================== 1. Dr.Akhauri Radha Krishna Sinha S/O Late U.K.S.Akhauri R/O Moh Jay Mahabir Colony, Sanadalpur, P.S.Bahadurpur, Distt-Patna At Present Demonstrator, Department Of Geography, B.N. College, Patna University , Patna 2. Suprabhat Chakrabory S/O Late Awanidhar Chakorbarty R/O Moh Nala Road, Langartoli Gali, P.S. Kadamkuan, Distt-Patna At Present Demonstrator , Department Of Statistics, B.N. College, Patna University , Patna 3. Amesh Nandan Prasad S/O Late Devki Nandan Mahto R/O Vill +P.S.Daniawan , Distt-Patna At Present Demonstrator Post Graduate Department Of Geology , Patna University , Patna 4. Someshwar Singh S/O Sri Anirudh Singh R/O Moh New Bahadurpur , Raj Mahal Apartment , Flat No. 205, P.S. Bahadurpur, District Patna At Present Working As Lab- Incharge, P.G. Department , Geology, Patna University , Patna Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P2 o/15/15 2 5. Ashok Kumar Yadav S/O Sri Tarni Yadav R/O Vill Saidpur Teachers Quarter, Rajendra Nagar, P.S.Kadamkuna , Distt- Patna At Present Demonstrator , Department Of Physics Science College , Patna University , Patna 6. Diwakar Narayan Prasad S/O Late Jagdish Narayan Prasad R/O Moh Mithapur, P.S.Jakkanpur, District Patna At Present Demonstrator , Department Of Geology , Science College , Patna University, Patna 7. Smt. Veena Hansdah W/O Late Earnest Murmur R/O Flat No.102,Defence Colony, Kankarbagh Colony, Ps.Kankarbagh, Distt-Patna At Present Lab Incharge , Department Of Geography Patna Women College , Patna University, Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Human Resources Department New Secetariat, Patna 2. The Chancllor , Universities Of Bihar Raj Bhawan, Patna 3. Patna University, Patna, Through Its Registrar 4. The Vice - Chancellor , Patna University Patna 5. The Registrar, Patna University Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No.15230 of 2009) Mr. Rajendra Pd. Singh For the Petitioner/s : Mr. Shanti Pratap Mr. Akhileshwar Kumar For the Respondent/s : Mr. Ajay Kumar Sinha (In CWJC No.17978 of 2009) For the Petitioner/s : Mr. Rajeev Kumar Singh Mr. Arvnid Kumar Singh Mr. Onkar Kumar Mr. Navjot Yeshu For the Respondent/s : Mr. (Sc2) Mr. Shivendra Kishore Mr. Ajay Kumar Sinha (In CWJC No.18214 of 2009) For the Petitioner/s : Mr. Gajendra Kr.Jha Mr. Shanti Pratap Mr. Akhileshwar Kumar Mr. Ajit Ranjan Kumar For the Respondent/s : Mr. (Sc22) Mr. Shivendra Kishore Mr. Ajay Kumar Sinha ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P3 o/15/15 3 ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 7 25-10-2011 Petitioners in these three writ applications are working on the post of Laboratory In-charge in different Colleges of Patna University, in different departments. Prayer of the petitioners in all these three writ applications is for quashing of order dated 12.12.2008 issued from the Office of Vice- Chancellor, Patna University, Bihar Patna contained in Memo No. 5291 and the consequential show cause notice issued by the Registrar, Patna University contained in Memo Nos. 1530, 1531,1532, 1533, 1535, 1538,1540, 1542 and 1543 dated 27.10.2009 issued under the signature of the Registrar, Patna University, whereby the petitioners had been asked to show cause as to why their services be not terminated as they had been appointed on unsanctioned post. Further prayer of the petitioners is to re-designate them as Demonstrator with effect from their date of appointment and make payment of the difference of arrears of salary of Demonstrators pay scale at the relevant time. Petitioners have also prayed to grant the pay scale of Rs. 8000/- - 13000/- with effect from 1.1.1996 with all consequential benefits including promotion to the post of Lecturer and benefits attached to such Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P4 o/15/15 4 promotional post as per notification of the University contained in letter No. 1530 dated 14.6.2006. Petitioners were initially appointed as Lab In- charge/Junior Lab Technician in the pay scale of Rs. 340- 490/- against the staffing pattern framed by the Government in different Colleges of the University. Petitioners were appointed in order to maintain the Laboratory in different departments in different Colleges after the abolition of the post of Demonstrators. They were appointed on the basis of the Government instructions/guidelines contained in letter no. 9670 dated 16.8.1979, whereby necessary guidelines had been issued for the purposes of creation of posts and appointment of Lab In- charges. The guidelines, enumerates, the creation of posts in ratio of the Lab-In-charge and student’s ratio. The Government guideline was circulated by the University vide Memo no. 17315-32 dated 17/19th September, 1979 to Principals of all the Colleges. The University in response to this guideline, vide its letter dated 5.7.1980 communicated the pleasure of the Vice Chancellor to permit the Principal of the College to appoint Lab In-charge in the department for a period not exceeding six months, subject to creation of the post by the University and approval of the State Government. In pursuance of the Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P5 o/15/15 5 University letter dated 5.7.1980, Principals of different colleges took steps for filling the post of Lab Incharge and the temporary appointment of the petitioners was approved by the Vice- Chancellor. Petitioners had been initially appointed only for six months period but they continued on the post. They were also allowed regular pay scale, increments etc, and the University has been sending its annual budget against the concerned expenditure to the Government. So much so, some of the petitioners were also granted time bound promotion. Neena Verma ( CWJC No. 15230 of 2009) was appointed on the post of Lab- In-charge, in Psychology Department of Patna Women’s College, vide letter No. 150/1980 dated 22.8.1980 issued by Principal, Patna Women’s’ College, as per Government direction for creation of the post and appointment of Lab In-charge, as teaching of Psychology at graduation level had started in the College in the year 1976. Initially, she was appointed in the pay scale of Rs. 340-490 for a period of six months, subject to creation of the post by the University and their formal sanction by the Government. The Principal of the College, after appointing the petitioner made recommended for approval of Vice-Chancellor. Petitioner has been granted time bound promotion with effect from 1.8.1990 Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P6 o/15/15 6 and order of confirmation has also been issued vide Memo no. 1623 dated 23/25th March, 1998. Petitioner Nos. 1 and 2 Dr. Akhauri Radha Krishna Sinha and Suprabhat Chakraborty were appointed as Lab In- charge, against the post sanctioned by the University Grant Commission, in the department of Geography and Statistics in B.N.College, Patna, on 2.6.1980 and 17.11.1980 respectively. Petitioner Nos. 3 and 4 were appointed as Lab In-charge in Post Graduate Department of Geology, Patna University, Patna under major Research Project of U.G.C. Subsequently they were adjusted against two posts of Lab In-charge created by the Vice-Chancellor of the University. Petitioner No.5 was appointed as Lab In-charge in the department of Physics, Patna Science College. Petitioner No. 6 was appointed initially on daily wages but with effect from 1.8.1984 was appointed as Lab In-charge in the pay scale of Rs. 340-490, revised scale Rs.680- 965. Petitioner No.7 joined on the post of Lab In-charge on 1.8.1980, in the Department of Geography, Patna Women’s College. Petitioners have been confirmed on their posts. Dr. Binay Kumar Singh ( CWJC No. 17978 of 2009) was appointed as Lab In-charge and joined in the Department of Physics, B.N.College, Patna, i.e. from one sanctioned post to Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P7 o/15/15 7 another sanctioned, vacant post. Finally he has been transferred, in the same capacity of Lab In-charge, against the sanctioned vacant post of Computer Assistant at the Post Graduate Department of Statistics, Patna University. Petitioner joined there on 11.5.1992 and is continuing there. Since the petitioners had been appointed temporarily, as such in order to remove this technicality, the University constituted a committee under the Chairmanship of the Vice- Chancellor to identify posts and to get them sanctioned by the Government. The Committee, identified and recommended 17 posts of Lab In-charge, which also included posts held by the petitioners. The Committee recommended for completing the formalities. However, Petitioners, continued to discharge the duties on the post in the regular pay scale without any break since last three decades. For the first time, question has been raised regarding petitioners’ continuation against unsanctioned post and a threat of termination has been enhanced against the petitioners, on the ground that they were appointed against unsanctioned post of Lab In-charge. Counsel for the petitioners submits that the Registrar of the Patna University could not have termed the appointment of petitioner as an appointed on unsanctioned post as their Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P8 o/15/15 8 appointments have been made strictly in accordance with the Government guideline dated 16.8.1979. These posts are in existence for last three decades. Petitioners were appointed against the posts which were created, after it fell vacant due to abolition of the post of Demonstrator. Petitioners had been appointed as there was exigency for maintaining Laboratory and practical classes of the students, as such it comes within the staffing pattern. In the circumstance, it cannot be termed as unsanctioned post, specially, when the appointees continued to receive regular pay scale, were granted increments, and time to time their salary were also revised. Counsel for the petitioners submits, that the impugned notice issued by the respondent Registrar falls within the teeth of the resolution of the duly constituted Committee, which approved sanctioning of the post vide resolution dated 22.11.1999. The appointment of the petitioners had been approved by the Vice-chancellor. Their appointments had also been made in consonance with the decision of the Government. These are the reasons that the appointment of the petitioners cannot be held against unsanctioned posts, rather they are working against sanctioned posts. Counsel for the petitioners have also submitted that Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P9 o/15/15 9 petitioners are entitled for being re-designated as Demonstrator in the light of the resolution of the Syndicate dated 7.4.2007. The Respondent Registrar has issued impugned notice on a wrong and erroneous assumption of facts solely, with an intention to debar the petitioners, from the benefit of revised pay scale of re-designated post of demonstrator. Counsel appearing for the petitioners has also submitted that the issue involved in the present writ application has already been settled by the Hon’ble Court in CWJC No. 7914 of 2005 ( Shyamawati Karn Vs. Vice Chancellor, Patna University and other). In this circumstance the issue relating to sanctioning of the post cannot be reopened. On consideration of submissions made by the petitioners’ counsel, I find that the Vice Chancellor had constituted 8 Men Sub-Committee for creation of posts of which he himself was a Chairman. The post creation Committee vide its meeting dated 22.11.1989 had recommended for creation of post of Lab In-charge of different Colleges. The Committee recommended 17 posts of Lab In- charge, which also included posts held by these petitioners, who were discharging their duties since 1980 onwards. The University sent the details of the recommendation of posts to the Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P10 o/15/15 10 Government vide its letter no. 2617 dated 31.1.2000, whereupon the Government vide its letter no. 1110 dated 10.7.2000 had been pleased to ask the Registrar to furnish certain information in respect of the post. The Registrar of the University vide letter no. 518 dated 15.9.2000 supplied the required information, asked by the Government letter dated 10.7.2000 and also reiterated about the recommendation made by the post Creation Committee, and list of Lab In-charges working in different Colleges, posted in different departments. The requirement for the number of posts as per the guideline of the Government dated 16.8.1979 to the University was also transmitted to the Government. It was for the Government to finally sanction the post, but instead of sanctioning the post, and giving approval to the recommendation, a show cause notice was issued to the petitioners as to why their services be not terminated. The impugned order is an arbitrary exercise of power by the University as well as by the Government. Counsel for the petitioners has also contended that dispute with regard to re-designation of the post of Lab In- charge as Demonstrator, appointed subsequent to abolition of the post of Demonstrator, was raised and contested upto the Apex Court. The judgment of the single Bench of the Patna Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P11 o/15/15 11 High Court to treat the Lab In-charge/Lab Assistant as teaching staff was upheld by the Apex Court. In view of the judicial pronouncement, the Government of Bihar vide its letter no. 1115 dated 14.6.2006 had communicated to all Universities that those Graduate Lab In-charge, who have requisite qualification, shall be re-designated as Demonstrator, with this condition that no further appointment of Demonstrator shall be made in future. The Government also directed to extend all consequential benefits to such Demonstrators and pursuant to the Government order, the University vide its’ notification dated 30.6.2007 contained in memo no. 1175-76 has re-designated the eligible Lab- In-charges/Lab Assistants as Demonstrators from the date of their respective appointments. Petitioners’ case is that in view of the judicial pronouncement and the decision taken by the Government, these petitioners are also entitled to be re- designated on the post of Demonstrators from the date of their respective appointment and also for being promoted to the post of Lecturer, with all consequential benefits, as they possess requisite qualification. Counter affidavit has been filed on behalf of the Patna University, admitting the fact regarding appointment of the petitioners and the recommendation made by the University for Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P12 o/15/15 12 sanctioning of the post but has specifically stated that since the State Government had not given its approval to the appointment of Lab In-charge, despite the fact that on several occasions, the University made correspondence to the State Government for approval of their appointment, these Lab In-charge, continued to work against unsanctioned posts. The State Government, in this circumstances, on several occasion, raised objection regarding payment of salary to these Lab In-charge, as they were working on the unsanctioned posts. The Governors’ Secretariat vide Memo No. BSU-35/2008-5281/GS(1) dated 12.12.2008, had constituted a committee to recommend ways, in the matters of persons working against unsanctioned posts. This Committee’s recommendation was that they should be terminated after giving a show cause notice. This report has been sent by the Governors’ Secretariat to the University for implementation vide letter no. 3087 dated 8.6.2009. The Registrar of the University, accordingly issued show cause notice to the petitioners, to show cause, so that further necessary action shall be taken against them in consonance with law. What I find that the petitioners were appointed as per the Government decision and allowed to continue for more than two decades against the posts which were created in accordance Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P13 o/15/15 13 with the guideline of the State Government in its letter No. 9690 dated 17.8.1979. The Lab In-charge’s post was essential in order to maintain the Laboratory in different Department of the University and considering the need the State Government had issued the guideline. In case there would not have been any need, there was no reason to allow the petitioners to continue against those posts for more than 2-3 decades. Petitioners were allowed all benefits attached to an employee working against the sanctioned post. They had been allowed regular pay scale, increments, revision of pay, time bound promotion and confirmation. All these act on the part of the University and the State is sufficient to show that petitioners had never been treated as a temporary Lab In-charge/Lab Assistant, working against unsanctioned posts. The Vice Chancellor of the University in order to remove this technical discrepancy, had constituted a Committee which made recommendation for creation of a number of posts of Lab In-charge/Lab Assistant. This recommendation was communicated to the State Government. In case the State Government was not willing to accept this recommendation, it could have rejected it instantly but that was not done. The State Government, rather made budgetary allocation for making payment to such Lab In-charge/Lab Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P14 o/15/15 14 Assistant, like petitioners. The Government, right from the date of petitioners’ appointment, released fund for making payment to such appointees. After so many years, neither the University nor the State Government can be allowed to revert back and terminate these petitioners on this ground that they continued to work against unsanctioned posts. The respondent-State as well as the University, are under obligation to give approval to the post of Lab In-charge/Lab Assistants against which petitioners’ are working and for which recommendation had been made by 8 Men Committee constituted by the Vice Chancellor of the University, long time back in its meeting dated 22.11.1999 and communicated to the State Government vide letter no. 2617 dated 31.1.2000. Petitioners will be deemed to be working against sanctioned posts; as such they are also entitled to be re- designated as Demonstrators as well as for promotion to the post of Lecturer, if qualified for being promoted to such posts with all consequential benefits. The impugned show cause notices contained in memo nos. 1530, 1531, 1532, 1533, 1535, 1538, 1540, 1542 and 1543 dated 27.10.2009, issued to the petitioners under the signature of the Registrar of the Patna University are quashed. Patna High Court CWJC No.15230 of 2009 (7) dt.25-10-2011 P15 o/15/15 15 All three writ applications are allowed. Arun Kumar/- (Mridula Mishra, J)