IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2773 of 2003 RAM PUNIT RAI, son of Shri Sonelal Rai, Resident of village Mahmmadpur, Police Station Tajpur, district Samastipur. Versus 1.THE VICE CHANCELLOR, L.N.M. University, Kameshwar Nagar, Darbhanga. 2.The Registrar, L.N.M. Univesity, Kameshwar Nagar, Darbhanga. 3.The Principal, Uma Pandey College, Pusa, Samastipur. ----------- 3 9.8.2010 Heard counsel for the petitioner and counsel for the L.N.Mithila University. Prayer of the petitioner in this writ application reads as follows:- “That this is an application on behalf of the petitioner for issuance of a writ order or direction including a writ in the nature of Mandamus commanding the Respondents to regularize the service of the petitioner in the Uma Pandey College, Pusa, Samastipur and also for direction to the Respondents to forthwith pay the salary to the petitioner since 30.3.1983 and also for issuance of any other writ, order or directions as your Lordships may deem fit and proper.” As with regard to the aforementioned prayer Mr. Ripu Daman Prasad Singh, learned counsel for the petitioner would submit that when the petitioner was appointed by the Principal of the College against the post of Lab. Boy, the University cannot refuse to make payment of salary and in fact also regularization of services of the petitioner on the post of Lab. Boy in the College. Counsel for the University, however, is not in a position to say anything because he has not filed any counter affidavit, but then he would try to explain the whole situation by stating that the appointment letter of the petitioner as contained in 2 Annexure-1 dated 30.3.1983 will itself go to show that not only the same was made by the authority having no jurisdiction to make appointment on Class-III or Class-IV posts in a Constituent College, but also that no procedure for appointment was followed and in fact there was no available sanctioned posts for such appointment of the petitioner. In the opinion of this Court, a writ of mandamus can only be issued if the petitioner establishes his legal right. From the appointment letter of the petitioner it becomes clear that he was appointed by the Principal not only against a post included in the Staffing pattern which cannot be said a sanctioned post, but also without following the mandate of Articles 14 and 16 of the Constitution. Apparently, such appointment of the petitioner could not have conferred any right especially when the same has not been made after approval of the University. The benefit of payment of salary can be made to a non-teaching employee of the College only when there is approval of his service by the University. There is also a lot of misgiving with regard to the posts prescribed in the staffing pattern becoming admissible only after the year 1981. The Staffing pattern of 1981 came into existence as a model of availability of posts in the College, but then section 35 of the Bihar State University Act was still there and therefore on the pattern of post made available/ admissible in the Staffing pattern, a proposal for creation as also sanction of 3 such posts had to be submitted by the College to the University and by the University to the State Government. Only such posts which were thereafter sanctioned by specific order of the State Government can be said to be post sanctioned as per staffing pattern. Apparently, that was never done in the case of the petitioner and there is nothing to show that the services of the petitioner was approved by the University and therefore it has to be held that appointment of the petitioner, by the Principal of the College, having no power to make such appointment had conferred to right on him for also receiving payment of salary from the funds of the State Government. Reliance placed by the petitioner on the communication of the University dated 3.8.1997 would only go to show that some advertisement was published and for that an interview was to be held. There is nothing further on the record to show as to what happened in this interview and whether the petitioner was selected and appointed pursuant the selection process undergone by the University. Counsel for the petitioner, however, would submit that the petitioner had appeared in such interview but if the petitioner had appeared in the interview in the year 1997 and yet was not favoured with any order of appointment, the same would only show that nothing was done with regard to the decision of continuation of the petitioner on the appointment made by the Principal of the College. In such a situation, no writ of mandamus can be issued 4 to the University for either regularization of services of the petitioner or making payment of salary to the petitioner. Since the petitioner claims that he is still working in the College, all that can be done is that the petitioner can be only given liberty to file a representation to the Registrar of the University through the Principal of the College and if it is found that the petitioner has continued to work for all this period, the University would be under obligation to consider the case of the petitioner in the next lot of appointment whenever the posts will be advertised. If the petitioner would file his application in response to such advertisement he would be entitled for age relaxation for competing with others for his regular appointment on any sanctioned Class-IV post including that of Lab Boy. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)