IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16009 of 2006 SHANTI DEVI, W/O LATE RAMA PRASAD, R/O GOPALGANJ, POST OFFICE GOPALGANJ, DISTRICT GOPALGANJ. ……………………PETITIONER. Versus 1.THE STATE OF BIHAR, THROUGH THE SECRETARY CUM COMMISSIONER, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 2.THE DIRECTOR, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3.THE VICE CHANCELLOR OF JAI PRAKASH UNIVERSITY CHAPRA. 4.THE PRINCIPAL OF GOPALGANJ WOMENS COLLEGE, GOPALGANJ @ MAHENDRA MAHILA COLLEGE, GOPALGANJ. 5.THE REGISTRAR OF JAI PRAKASH UNIVERSITY, CHAPRA. 6.THE TREASURER OF JAI PRAKASH UNIVERSITY, CHAPRA. 7.BYASH MISHRA, S/O NOT KNOWN AS PERON(CLASS-IVTH GRADE)WORKING IN GOPALGANJ WOMENS COLLEGE, GOPALGANJ. 8.USHA SINHA, W/O NOT KNOWN WORKING AS PEON (CLASS IVTH GRADE)IN GOPALGANJ WOMENS COLLEGE, GOPALGANJ 9.BIBHA SINHA, W/O NOT KNOWN WORKING AS PEON (CLASS IVTH GRADE) WORKING IN GOPALGANJ WOMENS COLLEGE, GOPALGANJ. …………………RESPONDENTS. ----------- 07/ 22.07.2011 Heard Mr. Udit Narayan Singh, learned counsel for the petitioner, Mr. Shivendra Kishore, learned counsel for the J. P University and Mr. Ashish Giri, learned counsel for the respondent nos. 7 to 9. The prayer of the petitioner in this writ application reads as follows:- “That this application is being filed to set aside the order dated 27.11.2005 passed by the Vice 2 chancellor of Jai Prakash University in compliance of the order dated 20.9.2005 passed in C.W.J.C NO.11010 of 2001 by Hon’ble Justice Navin Sinha and also for issuance of an appropriate writ, order/orders, direction/ directions to the respondents to regularize the service of petitioner with all financial benefits.” Mr. Singh pressing the writ application for the aforementioned relief would submit that the impugned order passed by the Vice chancellor proceeds on his absolutely erroneous impression, inasmuch as, he has completely mixed up the nature of appointment of class-IV employee in affiliated college with the manner of appointment of class-IV employee in a constituent college. To that extent, he would also highlight the case of the petitioner that she was not appointed by the Principal of the College after the College had become constituent College rather her specific case is that she was appointed as a peon by the decision of the adhoc Committee under private management of affiliated College and only the appointment letter was issued by the Principal of the College. He has further submitted that 3 only after her being appointed vide Annexure-1, 2 and 3 that the College had become a constituent college in the later part of the year 1981. He has also explaned that the plea as specifically raised by the petitioner in her representation that this Court in its earlier order had directed to consider her case was not been even taken note of much less decided by the Vice- chancellor of the University. He has accordingly summed up that when there is also no dispute of the petitioner being appointed against one of the ten available sanctioned posts as per the staffing pattern for class-IV employee in the college her claim for absorption by the University in terms of Section 4(1)(xiv) of the Bihar State University Act should have been made allowed instead of rejecting her case by the impugned order. Mr. Shivendra Kishore learned counsel for the University on the basis of materials on records has aubmitted that true it is that the case of the petitioner will be one of absorption, inasmuch as, she claims to be appointed by the adhoc 4 Committee and/or Principal of the college while it was an affiliated college but then the Vice Chancellor of the University has no power to examine the procedure of appointment even of class-IV employee while the college was affiliated college unit. He would also submit that the petitioner is also not continuing in the College. As with regard to the plea of discrimination, the learned counsel for the petitioner by referring to para no. 14 of the counter affidavit would submit that even respondent no. 7 to 9 have not been absorbed nor they are being paid salary against class-IV posts and as such the petitioner cannot get any benefit by raising plea of discrimination. Mr. Ashish Giri, learned counsel appearing on behalf of respondent no. 7 to 9 having known the aforesaid categorical stand of the University, on account of service of copy of a counter affidavit of the University upon him as with regard to discontinuation of respondent no. 7 to 9 in the College as also their not absorbed and thus denied payment of salary, has however 5 asserted that not only respondent no. 7 to 9 are still working but they are also getting payment of salary after being absorbed in the service of the University. In the considered opinion of this Court, the impugned order is thus fit to be interfered only on the ground that the Vice Chancellor of the University has not been able to appreciate the case of the petitioner in its correct perspective. It is not the case of the petitioner that she was appointed by the Principal after the college had become constituent college so as to make appointment of the petitioner itself void ab initio. The absence of the power of the Principal of the constituent College to make appointment on any class- IV post is a well accepted position in law, inasmuch as, under Section 10(7) of the Bihar State University Act, it is the Vice chancellor alone who has the power to make appointment on any class-III or class-IV post either in the University or its constituent Colleges. Here, however, the appointment of the petitioner was made prior to the 6 College becoming a constituent College and under a decision of the adhoc Committee followed by the specific order of appointment issued by the Principal of the College. Such power of appointment to the Adhoc Committee and/or Principal of the affiliated College cannot be doubted, inasmuch as, the statutes regarding the governing body framed by the Chancellor itself give power to the Principal to make appointment on an inferior post. If the appointment of the petitioner was made by the Principal of the College and she had continued in service till the date of the College becoming a constituent College, her case had to be considered for absorption in terms of Section 4(1)(xiv) of the Bihar State University Act, which gives power to the University to the fate and future of continuance and payment of salary of such employees of the Colleges which become constituent Unit of the University. Obviously, the aforesaid exercise was never undertaken in the case of the petitioner though she claims by strength 7 of various documents that her name was included in the list submitted by the authorities of the College as a working class-IV employee. To that extent the petitioner has also annexed Annexure-7, the letter of the Proctor cum Convenor of the Syndicate, letter no. 501 dated 21.05.1999 showing the petitioner to be working as a Peon in common room of the College since 26.02.1981. If this part of the fact that the petitioner had continued in the College even as per the University documents it would be difficult for this Court to rely on the averments made in the counter affidavit which also does not specifically controvert the statement made in the different paragraphs of the writ application nor has disputed the correctness of the enclosures. In that view of the matter, this Court for the time being would proceed on an assumption that the petitioner was appointed on 26.02.1981 on a class-IV post by the Principal, who had the power to make appointment in the affiliated College and if therefore, such College became a 8 constituent unit of Bhim Rao Ambedkar Bihar University and later on fell in the share of J. P University, the University and the Vice-chancellor of the J.P University will now have to discharge onerous duty of deciding the future of the petitioner as also all other class-III and class-IV employees working against the sanctioned post shown to be in service of the College on the date on which the College was made a constituent unit of the University. The Vice-chancellor of the J.P. University in the impugned order has himself held existence of six class-III sanctioned posts including one of the Head Clerk, one of Routine Clerk, one of Lower Division Clerk, one of typist and one P.T.I as also ten class-IV post for Office and common room of the college, therefore a final decision as with regard to the absorption of the working class-III and class-IV employees shown in the aforesaid letter of the Proctor cum Convenor of the Syndicate dated 21.05.1999 as contained in Annexure-7 and 7/1 to this writ application has to be taken for 9 completing the exercise in terms of Section 4(1) (xiv) of the Bihar State University Act. In making such exercise the Vice- chancellor of course will be at liberty to apply the settled principles of absorption followed in the cases of other class-III and class-IV employees of similarly situated affiliated Colleges of the University and would also give due weightage to the prescribed norms existing for the appointment on class-III and class-IV post in such affiliated colleges. Such exercise as with regard to absorption of the service of the petitioner and all others shown to be working on the date of the College becoming constituent therefore, must be made in a fair and objective manner before the University chooses to fill up those vacant class-IV posts, seven of them which have been shown to be still vacant in the impugned order passed by the Vice-chancellor. This Court for the time being is infact not required to make any adjudication as with regard to the plea of 10 discrimination of the petitioner inasmuch as, the respondent no. 7 to 9 have insisted that their services have already been absorbed and they have been also paid salary by the University whereas the stand of the University in the counter affidavit is that they had never been absorbed nor have been paid their salary but then nothing said in this order would prejudice the right of respondent nos. 7 to 9 and if the vice chancellor would find that the service of respondent nos. 7 to 9 have also not been absorbed till date he will consider their cases as well on the same parameters as that of the writ petitioner. If however the Vice Chancellor of J.P. University would find that the services of Respondent no. 7 to 9 has already been absorbed in the University service he will not deny the same benefit to the pttitione if she is found to be senior and/or similarly situated person alike Respondent no. 7 to 9. Let such an exercise be completed by the Vice chancellor the university after affording opportunity of hearing to 11 the petitioner as also respondent no. 7 to 9 and other similarly situated persons within a period of six months from the date of receipt/production of a copy of this order. It also goes without saying that if the Vice chancellor would reject the case of absorption of the petitioner or any other person he shall give reasons in support of his such decision. That being so, the impugned order contained in Annexure 9 is hereby quashed and the matter is remitted back to the Vice chancellor to do the needful in the light of the aforesaid observationand directions. Ranjan (Mihir Kumar Jha, J.)