IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2714 of 2006 SUSHIL THAKUR s/o late Bajrangi Thakur, resident of village- Ramchandrapur, P.O.- Satjori, P.S. Gauradih, District- Bhagalpur. …. Petitioner Versus 1. T.M.BHAGALPUR UNIVERSITY , Bhagalpur through its Registrar. 2. The Vice Chancellor, T.M. Bhagalpur University, Bhagalpur. 3. The Registrar, T.M. Bhagalpur University, Bhagalpur. 4. The Finance Officer,, T.M. Bhagalpur University, Bhagalpur. 5. The Principal,, S.M. College,Bhagalpur. 6. The State of Bihar through the Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Old Secretariat, Patna. 7. The Commissioner-cum-Secretary, Department of Higher Education, Government of Bihar, Patna. 8. The Director, Department of Higher Education, Government of Bihar, New Secretariat, Patna. .… Respondents. ----------- For the Petitioner : Mr. Purushottam Kumar Jha For respondent nos. 1 to 5 : Mr. Swaraj Kumar Ghosh, Sr.Adv. Mr. Anil Singh . For respondent nos. 6 to 8 : Mr. Sanjay Kumar, G.A.no.5. 7 6.4.2011 The petitioner was working as a Night Guard in a University Hostel under Tilka Manjhi Bhagalpur University. In 1976, the Bihar State Universities Act came into being and thereafter as per staffing pattern by Annexure 2, the University notified, inter alia, that for University Hostels there were 134 posts of 4th Grade Employees. The said report states that they were sanctioned prior to the enforcement of the said Act. The petitioner was already working as a Night Guard there, which is not in dispute. After January, 2001, petitioner’s salary was suddenly stopped though undisputedly he continued to work. 2 This brought the petitioner to this Court along with others in CWJC No. 7802 of 2002. It appears that the State and the University raised a controversy stating that the post of Night Guard and Ward Servant in the hostels of the University were not sanctioned. The matter was adjourned several times. Ultimately, University took a stand, that in May, 2002 and June, 2002, they had sought sanction of the said post as per staffing pattern (these communications are Annexures 8 and 9 to the supplementary affidavit of the petitioner). The matter was adjourned in those writ proceedings and ultimately in response to the said letters of the University, by letter dated 31.1.2003 (Annexure 3), the State Government sanctioned of creation of only 43 posts in this regard. As noted above, the University had been maintaining that as per staffing pattern there were 134 such posts sanctioned. Upon this, the writ petition , as field on behalf of the petitioner being CWJC No. 7802/2002 was disposed of by this Court on 7.2.2003 wherein this Court noted various contentions and this Court held that it would not sit in appeal over the decision of the State Government in sanctioning only 43 posts as against recommendation of much larger by the University. However, noticing that the petitioner and their like were working there from before and there would be more than 43 staff, controversy would arise this Court then directed that the University should fix equitable criteria for absorption of 43 persons and pay them salary in accordance with law, which should be done within two months. I may notice that all different 3 petitioners in that group of analogous cases preferred L.P.As. The L.P.A. ,inter alia, preferred by the petitioner was L.P.A. No. 255 of 2003, which was ultimately, as apparent from the order dated 16.7.2010 passed therein, disposed of as infructuous recording the statement of the counsel that there was no further grievance surviving as against the said judgment as passed in CWJC No. 7802 of 2002, disposed of on 7.2.2003. It may also be mentioned that learned counsel for the petitioner in these proceedings states that he has filed an application for recall of the said order, as passed in LPA but no order has yet been passed. Be that as it may, so far as this Court is concerned, this Court has to proceed on basis of the order as passed by learned Single Judge in petitioner’s writ petition as if that has attained finality, which, however, is subject to the application filed before Division Bench by the petitioner. By this writ petition, petitioner challenges the purported consequential order passed by the University, first being dated 20.8.2005 (Aannexure 5) by which petitioner’s services as Ward Servant-cum- Guard has been regularized with effect from 31.1.2003. The consequence of this order is that though they have been regularized with effect from 31.1.2003, as mentioned in the order itself, their payments would only be made with effect from March, 2005 for which there is no explanation. In nut shell , the grievance of the petitioner is that he had been regularly paid upto January, 2001 and now was to be paid from March, 2005 leaving the period in between which 4 he worked as unpaid. His submissions are three folds. Firstly, University and the State cannot exploit the situation and refuse to pay for the work done where admittedly and undisputedly there was no irregularity or illegality in petitioner’s appointment and secondly he submits that the university’s own stand had been and that was the import of the Full Bench decision of this Court in the case of Braj Kishore Singh & ors-v- The State of Bihar & ors. Since reported in 1997(1)PLJR 509 that even prior 1976 post was sanctioned though the government had reduced the sanctioned post to 43, those persons who came within the ambit of this 43 and have been working from before would be entitled to payment from before i.e. for the period missed out between 2001-2005 and lastly it is submitted that there is no reason and rational for making payment only from March, 2005 when the posts were available for sanction from the very inception of the University and deemed sanctioned in view of the Full Bench judgment (supra)and the people were working on those posts. Mr. Swaraj Kumar Ghosh, learned Senior Counsel for the University submits that it is not open to the petitioner to re- agitate the questions, which were before this court in the earlier writ petition and concluded by withdrawal of L.P.A. In my view he is correct. But the challenge of the petitioner is not of that order but an order passed two years thereafter. The petitioner’s limited grievance is that the impugned order, as contained in Annexure 5, which was passed on 20.8.2005, is bad in so far as 5 it restricts payment from March, 2005 though regularization of the services from January, 2003 and the University itself has held that they were all working prior to it and it was paying petitioner’s salary regularly upto 2001 there is no reason why a break up has been made when they have been working. In my view, it is open to the petitioner to get an order from this Court on this limited issue in the present proceeding, which was not there before this Court on the earlier occasion. In my view the matter is simple and plain. The petitioner cannot be denied his payment for the period February, 2001 to February, 2005. It is not in dispute and the university does not dispute its stand that even prior to 1976 when the Bihar State Universities Act, 1976 came into being, 134 posts for the University were sanctioned which is clear from Annexure 2.This facts is also clear from the University’s communication to the State Government, as made in the year 2002 itself, which are Annexures 8 and 9 to the writ petition. Thus, so far as University is concerned, it always considers the posts duly sanctioned. In fact, the University was correct in its stand keeping in view the judgment of the Full Bench of this Court in the case of Braj Kishroe Singh (supra) with regards staffing pattern and concept of deemed sanction but a controversy started that there was no written order of the State Government with regard to the number of posts sanctioned and this is how the controversy started with the State Government creating and sanctioning only 43 posts, vide Annexure 3, dated 6 31.1.2003. On the earlier occasion when this petitioner agitated this matter, this Court held that it would not sit as an appellate authority over this issue and refused to decide its validity. It would be wholly in appropriate for this Court to re-consider the matter. However, the fact remains that the petitioner was appointed on a post, which was deemed sanctioned and had been working. He fell within 43 posts as duly sanctioned by the State also and as such it cannot be said that the petitioner was illegally or wrongly appointed or not working on the said post so as to deprive him of his salary. We are in a democratic society governed by rule of law where State instrumentalities are expected to act fairly and in non-arbitrary manner consistent with the principle enshrined under Article 14 of the Constitution. When the State legitimately took work from a person and he demands his payment for the work having been taken, but his payment is denied, that would not be only inequitable but also illegal as well as that would lead to exploitation of a person, which is impermissible for the University. Neitehr the University nor the State has been able to disclose any reason much less valid reason for such deprivation of remuneration for such period. Thus, on the facts, aforesaid, as of now, I direct the State and the University to ensure payment to the petitioner of his due remuneration for the period February, 2001 to February, 2005 and treat that period as regular service for all purposes, may be service or post retiral benefits including pensionary benefits. The said payment must be made within a period of 7 three months from the date of production of a copy of this order before the Registrar of the University. With the aforesaid observations and directions, the writ petition is allowed. Singh ( Navaniti Prasad Singh, J.)