IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4538 of 2006 UPENDRA CHAUDHARY,S/O LATE MAHABIR CHAUDHARY, AT PRESENT WORKING AS CLERK IN LAXMISHWARI PRIYA RAJ LAKSHMI SANSKRIT COLLEGE, SAMAUL, DISTRICT MADHUBANI. ............PETITIONER. Versus 1.THE KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, DARBHANGA THROUGH ITS REGISTRAR, PROF. CHAUTHI SADAI. 2.THE VICE CHANCELLOR, KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, DARBHANGA. 3.THE REGISTRAR, KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, DARBHANGA. 4.THE GOVERNING BODY, LAXMISHWARI PRIYA RAJ LAKSHMI SANSKRIT COLLEGE, SAMAUL, DISTRICT MADHUBANI THROUGH SECRETARY DR. ARUN KUMAR MISHRA, EXAMINATION DEPARTMENT, R.K. COLLEGE, MADHUBANI. 5.THE INCHARGE PRINCIPAL, LALMISHWARI PRIYA RAJ LAKSHMI SANSKRIT COLLEGE, SAMAUL, P.O. BIRSAIR, VIA-PANDAUL, DISTRICT MADHUBANI 6.DR. ARUN KUMAR MISHRA, EXAMINATION DEPARTMENT, R.K. COLLEGE, P.S. AND DISTRICT MADHUBANI. 7.VIJAY KANT THAKUR, S/O SHRI DIGAMBER THAKUR, R/O VILLAGE SAMAUL, P.O. BIRSAIR, VIA. PANDAUL, DISTRICT MADHUBANI. ..........RESPONDENTS. ----------- 03/ 22.06.2011 No one appears for the petitioner. In this writ application which was filed on 05.04.2006 petitioner had prayed for the following relief:- (i) For Issuance of a writ in the nature of certiorari for quashing the Advertisement No. 1-5/6 dated 31.12.2005 published in Patna Edition of daily News Paper Aaj on 2.1.2006 under the signature of the Secretary, Shri 2 Lakshmishwari Priya Rajlakshmi Sanskrit College, Samaul where under the application has been invited from geneeral people for the appointment on the post of clerkin the College in question instead adjusting/regularising the services of petitioner who is continuously working as Provisional Clerk since 1977 and his service is required to be regularized. (ii) For issuance of a further writ in the nature of certiorari for quashiong the letter dated 8.2.2006 sent by the Secretary of the governing body to the Incharge Principal of the College namely Shri Lakshmishwari Priya Rajlakshmi Sanskrit College, Samaul, District-Madhubani (here-in-after to be referred to College) where by one Vijay Kant Thakur, Respondent no. 7 has been appointed against the post of Clerk in the College in question instead of regularising/adjusting the services of petitioner. (iii) For issuance of a further writ in the nature of certiorari for quashing the joining report of Respondent no. 7 submitted before the Incharge Principal of the College on 12.2.2006 and restrain the College Administration including Incharge principal not to accept the said joining. (iv) For issuance of a consequential writ in the nature of mandamus directing and commanding the respondents to regularize/adjust the services of petitioner against the sanctioned post of Clerk in the college by taking into consideration that the petitioner has been continuously working as clerk since 1977 duly approved by the Respondent University and thereby to pay him his entire back wages with interest @ 18 % along with suitable amount of compensation. During the pendency of this writ application, the petitioner has filed I.A No. 3 46 of 2009, wherein the following additional relief were prayed by him;- “(i) That in addition to the prayers made in paragraph 1 of the present writ application the petitioner may be allowed to pray for issuance of a further writ in the nature of certiorari for quashing the decision of programme no. 11 of the proceeding of approval, seniority and pay fixation committee of the respondent university drawn on 29.09.2008 whereby and where under the services of respondent no. 7 has been approved in prescribed pay scale of clerk w.e.f. 12.02.2006 in lieu of regularisation of the services of petitioner. (ii) That the petitioner may be allowed to pray for issuance of an appropriate direction to respondents 1 to 5 commanding them not to pay salary etc. to respondent no. 7 in pursuant to decision of the University dated 25.09.2008 till the disposal of present writ application and not to take any work of clerk from respondent no. 7 till the present case is decided because the work of clerk is being performed by this petitioner in the College. (iii) That the petitioner may be allowed to pray for issuance of an appropriate writ, order or direction commanding the respondents 1 to 3 to allow the benefit of payment of salary to petitioner in compliance of programme no. 3, decision no. 18 of Syndicate dated 08.02.1985 and decision of Senate taken in 2nd session on 28.06.1985 as petitioner has been working in the said capacity. (iv) Issuance of a writ in the nature of mandamus commanding the respondents 1 to 3 to take final decision on the point of absorption of petitioner even on staffing pattern from the date of his initial appointment in view of University letter no. RRO-42/98 dated 02.12.1998, decision of Full Bench of this Hon'ble Court in the case of 4 Braj Kishore Singh as reported in 1997(1)P.L.J.R.509, Decision of Division Bench of this Hon'ble Court in the case of Bihar Sanskrit Mahavidyalaya Pradhyapak Karmachari Mahasangh and Others (C.W.J.C No. 9222 of 1991 and analogous cases)by judgment dated 25th June 2003, resolution of Government contained in Memo No. 989 dated 10.05.1991 and in view of Government decision contained in Memo No. 1074 dated 05.06.2006. Since the Judgment dated 25.06.2003 is reported in 2003(3) P.L.J.R 549, it is not being annexed. However, the petitioner craves leave to produce a copy of Govt. decision contained in Memo No. 1074 dated 05.06.2006 as and when it is so required by this Hon'ble Court. (v) For issuance of an appropriate declaration and holding that the petitioner is fully entitled to his salary in regular Pay Scale from the date of his initial appointment in view of Judgment of this Hon'ble dated 17th October, 1995 passed in C.W.J.C NO.3085 of 1994, Full Bench decision of this Hon'ble Court passed in case of Braj Kishore Singh Versus State of Bihar as reported in 1997(1) PLJR 509, Division Bench Judgment dated 25th June 2003as reported in 2003(3) PLJR 749 as also in view of Government decision contained in Memo NO. 1074 dated 05.06.2006.” In this case a counter affidavit has been filed both on behalf of University and respondent no. 7. In the light of the pleadings on record the first and foremost issue would be as with regard to the maintainability of the writ application, inasmuch as, the College in 5 question namely Shri Lakshmishwari Priya Rajlakshmi Sanskrit College, Samaul is admittedly the affiliated College of Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as the University) in which the governing body alone has power to make appointment on its teaching and non- teaching post. True it is that this affiliated College alike many other affiliated Colleges of the University is receiving grant in aid from the State Government through the University for making payment of salary and emoluments to teaching and non-teaching staffs working within the prescribed strength of teachers laid down in the statutes but then this also is a fact that the power of appointment in such affiliated Colleges is exclusively vested in a governing body which is not a State within the meaning of Article- 12 of the constitution of India. This Court, therefore, cannot go into the question of appointment/termination of service of the petitioner vis a vis respondent no. 7, inasmuch as, the College in question is a 6 private College and is fully affiliated to the Kameshwar Singh Darbhanga Sanskrit University. This aspect of the matter has been settled by a Division Bench judgment in the case of Chandra Nath Thakur vs Bihar Sanskrit Shiksha Board and Ors, reported in 1999(1) PLJR 529. The challenge of the petitioner to the order of approval of the service of respondent no. 7 however can definitely be gone into by this Court, inasmuch as, this action has been taken by the University whose orders/action are amenable under the writ jurisdiction. This Court would however found no flaw in such approval accorded to the services of the respondent no. 7, inasmuch as, the governing body of the College had advertised those posts in newspaper which was in fact also assailed by the petitioner but without any success. Thus if the mandate of Article-14 was followed by the governing body of the College by advertising the post in newspaper followed by selection on the basis of written test and interview as asserted in the counter affidavit and not been controverted by the 7 petitioner till date nothing much can emerge, even when this Court would go into the question of appointment of respondent no. 7 and its approval by the University. The plea that the petitioner was working in the College against unsanctioned post from 1977 and he ought to have been preferred by way of regularization of his service on account of the vacancy of the post of clerk, taking place due to retirement of the earlier incumbent Digamber Thakur on 30.06.2005 has to be only noted for its being rejected. The governing body of the College being aware of the fact that its teaching and non teaching employees were to be paid salary from the funds made available by the State Government was fully justified in advertising the post and following the mandate of Article-14 of the constitution of India. The petitioner does not claim to have been appointed in the College either on a sanctioned post or after following mandate of Article-14 of the constitution of India. Regularization of such persons even in the Government service is impermissible as was 8 laid down by the Apex Court in the constitution Bench Judgment in the case of The Secretary, State of Karnataka vs Uma Devi 2006(4) SCC 1. The role of the University in according the approval of such service is very much limited, inasmuch as, it cannot question the selection but only see as to whether there is a vacancy on the sanctioned post and the requisite procedure of advertisement and selection were gone into. Thus this Court would also not find any flaw in the order according approval of service of respondent no. 7 by the University. The over emphasized aspect in the interlocutory application as with regard to reliance on the Full Bench Judgment in the case of Braj Kishore singh and others vs The State of Bihar and Ors reported in 1997(1) PLJR 509 also seems to be wholly misconceived. In Sanskrit College the staffing pattern having been laid down, the petitioner cannot complain of his being not absorbed if he was at no point of time covered by the staffing pattern and the 9 sanctioned post. For such affiliated colleges the Government has prescribed 10 teaching post and 4 non teaching post and therefore, if the petitioner was never appointed against any of the four sanctioned post of non teaching employees in the College, he cannot claim regularization of his service in preference to the appointment of respondent no. 7. This Court in fact would also find from the specific averment made by respondent no. 7 in his counter affidavit that though the petitioner came in service of the College in the year 1977 against unsanctioned post but when he was not receiving payment of salary, he had voluntarily left the service of the College and never returned back to the College. This specific averment made in the counter affidavit despite service of copy upon the counsel for the petitioner on 03.01.2011 has not been controverted as yet and this Court therefore will have to proceed that the petitioner is a busy body, who had no concern with the appointment of respondent no. 7. In any event the petitioner had opportunity to get himself selected and 10 appointed when the post in question was advertised by the impugned advertisement questioned in this writ application but he did not do so. In such circumstances, this Court will have no other option but to hold that this writ application is wholly frivolous and needs to be rejected at the very threshold. That being so, this application is accordingly dismissed. Ranjan (Mihir Kumar Jha, J.)