IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10784 of 2003 =============================================== 1.LALA BINAY KUMAR AMBASTA, S/O LATE DINESHWAR PRASAD, R/O VILLAGE SOHJANA, P.O & P.S JHAJHA, DISTRICT JAMUI. 2.RAGHUNATH JHA,S/O SRI RAJNIKANT JAH, R/O VILLAGE DADPUR, P.O. KESHOPUR, P.S JHAJHA, DISTRICT JAMUI. 3.SITARAM YADAV, S/O LATE HUSO YADAV, R/O VILLAGE SOHJANA, P.O & P.S JHAJHA, DISTRICT JAMUI. 4.NARAYN PRASAD SINGH, S/O LATE UCHIT SINGH, R/O VILLAGE LAKROHA, P.O DUMORI, P.S SONO, DISTRICT JAMUI. 5.AMARNATH MANDAL, S/O LATE SAHDEO RAUT, R/O VILLAGE PRPRADIH, P.O & P.S JHAJHA, DISTRICT JAMUI.(SINCE DECEASED AND SUBSTITUTED BY HIS LEGAL HEIRS). 5(A)KUMARI KANCHAN MALA, W/O LATE AMARNATH MANDAL. 5(B)RAHUL KUMAR ANAND, S/O LATE AMARNATH MANDAL. 5(C)MANNU KUMARI, D/O LATE AMARNATH MANDAL. 5(D)PRASHANT KUMAAR ANAND, S/O LATE AMARNATH MANDAL. ALL RESIDENT OF VILLAGE PRPRADIH, P.O. & P.S JHAJHA, DISTRICT JAMUI. 5(E)SAVITA KUMARI, D/O LATE AMARNATH MANDAL, W/O AMIT KUMAR, R/O 154, SHARDA APPARTMENT, DHALBHUM ROAD, FALT NO.-2/4, AAM BAGAN, SAKCHI, JAMSHEDPUR. 6.NAKUL PRASAD SINGH, S/O SRI RAM CHARITRA SINGH, R/O VILLAGE NUMAR, P.O. NUMAR, P.S MALEPUR, DISTRICT JAMUI. 7.LAXMI DEVI, W/O SRI BAHADUR SINGH, R/O VILLAGE SOHJANA, P.O & P.S JHAJHA, DISTRICT JAMUI.SINCE DECEASED AND SUBSTITUTED BY HER LEGAL HEIRS. 7(A)BAHADUR SINGH, S/O LATE SIPAL SINGH, R/O VILLAGE SOHJANA, P.O & P.S JHAJHA, DISTRICT JAMUI. 7(B)ABHISHEK KUMAR, S/O BAHADUR SINGH, R/O VILLAGE SOHJANA, P.O & P.S JHAJHA, DISTRICT JAMUI. 7(C)JHALKI DEVI, W/O PURAN BAHADURM, R/O PURANI BAZAR(IN FRONT OF MAHILA COLLEGE, JHAJHA), P.O & P.S JHAJHA, DISTRICT JAMUI. 7(D)NEELAM DEVI, W/O KALU RAM, R/O MEHARCHAND MARKET, LODHI ROAD, NEW DELHI. 7(E)NEELU DEVI, W/O ROHIT KUMAR, R/O GALI NO. 6, SANGAM VIHAR, NEW DELHI. Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 2 8.NAVIN KUMAR SINGH, S/O LATE BARHAN PRASAD SINGH, R/O VILLAGE & P.O. MALAIPUR, P.S MALAIPUR, DISTRICT JAMUI. …………………PETITIONERS. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT PATNA. 3.THE DIRECTOR, HIGHER EDUCATION, GOVT. OF BIHAR, NEW SECRETARIAT PATNA. 4.TILKA MANJHI BHAGALPUR UNIVERSITY, BHAGALPUR THROUGH ITS REGISTRAR. 5.THE VICE CHANCELLOR, TILKA MANJHI BHAGALPUR UNIVERSITY, DISTRICT BHAGALPUR 6.THE PRINCIPAL, DEV SUNDARI MEMORIAL COLLEGE, JHAJHA, DISTRICT JAMUI. ………………………RESPONDENTS. =============================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 04/ 03.04.2013 Heard counsel for the parties. 2. I.A No. 1932 of 2012 and I.A No. 933 of 2013 have been filed for substituting the legal heirs of respondent nos. 5 and 7. 3. For the reasons mentioned in both applications the prayer made therein is allowed. 4. As this Court has allowed the restoration application being M.J.C No. 4050 of 2010 today by a separate order, it has also heard the parties on the merits of the case. C.W.J.C No. 10784 of 2003 5. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the petitioner has submitted that during the pendency of this writ Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 3 application petitioner no. 5 (Amarnath Mandal) and petitioner no. 7 (Laxmi Devi) had died. Their writ application so far it relates to prayer of regularization in service has become infructuous and is, accordingly, dismissed. If any amount for the work done by them is still unpaid the respondent Tilka Manjhi Bhagalpur University will make verification and would make payment of arrears of their salary on the same basis on daily wages which it was being paid to them prior to stoppage of payment of their salary. In other words the relief for payment of salary to the legal heirs of petitioners nos. 5 and 7 would squarely depend on the satisfaction of the authorities of the University of the concerned College and it is made clear that they will not be entitled to claim regular pay scale since their services were not regularized. 6. As with regard to the rest of the petitioner nos. 1, 2, 3, 4, 6 and 8, this Court would find that they actually come to be appointed while the college was an affiliated unit of Tilka Manjhi Bhagalpur University. From the documents on record including their appointment letter, it would be clear that their Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 4 appointment was made by the governing body of the College and therefore there would be no question of either following the rules of reservation or their appointment having been not made by the Vice-chancellor of the University. The power under Section-10(6) of the Bihar State University Act in the Vice-Chancellor as with regard to making appointment of non-teaching employees in the University or its constituent Colleges does not extend to also making appointment in affiliated colleges. 7. As a matter of fact, the case of the petitioners 1, 2, 3, 4, 6 and 8 will be one under Section-4 (1)(14) of the Bihar State University Act because the college in question namely, Dev Sundari Memorial College, Jhajha in the district of Jamui became a constituent unit subsequently after appointment of petitioners. For such category of persons it is the University which has to decide as to whether there were sanctioned post on which absorption of the working employees of the affiliated college including petitioner 1, 2, 3, 4, 6 and 8 is permissible. From the perusal of the impugned order dated 28.10.2002, this much becomes clear that the case of the petitioners had never been Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 5 considered in the backdrop of Section-4 (1)(14) of the Bihar State University Act. The petitioners have also done no favour to this Court by coining their prayer in this writ application seeking regularization of service. There is no question of regularization of the service of non-teaching employees working in affiliated colleges which has been subsequently made a constituent unit of the University. For them it is the absorption in terms of Section-4 (1)(14) of the Act which would vest them with a right to claim the benefit to become University servant/employee. Either the petitioners in the writ application or the Respondent University in the counter affidavit have not explained in the pleadings as to whether the exercise under Section-4 (1)(14) in respect of the petitioners was ever done. 8. Therefore, it would be necessary for the Vice-chancellor of the Tilka Manjhi Bhagalpur University to examine as to whether the case of the petitioners would qualify for their absorption after their college was made constituent. If he would find that the case of the petitioners was already decided refusing their such absorption he would close the matter Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 6 and intimate the petitioners with earlier decision. If, however, on the other hand the Vice-Chancellor would find that no such final decision as with regard to absorption of the petitioners in terms of Section-4 (1)(14) of the Act has not been taken as yet he would apply himself to the facts of the case and would pass necessary orders after ascertaining the present position of the sanctioned post as also the working strength of the non-teaching employees against such sanctioned posts. In other words the absorption of the petitioners shall be considered in terms of Section-4 (1)(14) of the Bihar State University Act only against the sanctioned posts without disturbing any person who in the meantime has been either absorbed or appointed in the college. 9. It is also made clear that while passing the order, the Vice-chancellor would not be guided by the findings recorded in the earlier order dated 28.10.2002(Annexure-1). 10. In order to expedite the process, this Court would give liberty to the petitioner nos. 1, 2, 3, 4, 6 and 8 to file their separate individual representation for absorption enclosing all the necessary documents which Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 7 according to them needs to be taken into account while passing of the order by the Vice- Chancellor. 11. This court, however, must clarify that the petitioners would be entitled for any consequential benefit from the date of fresh order to be passed by the Vice-Chancellor in terms of Section-4(1)(14) of Bihar State Universities Act, inasmuch as, this writ application had been dismissed on 02.08.2010 and has been ultimately restored today, in view of the two orders passed in M.J.C No. 4050 of 2010 and M.J.C No. 3941 of 2011. In other words even if the claim of absorption of the petitioner nos. 1, 2, 3, 4, 6 and 8 is allowed by the Vice- Chancellor they shall not be entitled for payment of any arrears of their salary and their payment of salary would be made only w.e.f the date the Vice-Chancellor would pass his fresh order directing their absorption in terms of Section-4(1)(14) of the Bihar State University Act. This exercise of considering the case of absorption of the petitioner must be completed within a period of three months from the date of filing of the separate individual representations by petitioner nos. 1, 2, 3, 4, 6 Patna High Court CWJC No.10784 of 2003 (4) dt.03-04-2013 8 and 8 enclosing a copy of this order. 12. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)