IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7650 of 2004 YOGENDRA MAHTO, SON OF BHOLA MAHTO, RESIDENT OF VILLAGE- KHADIYALAI, P.S. BIVUTIPUR, DISTRICT- SMASTIPUR. …………PETITIONER. Versus 1.L.N.MITHILA UNIVERSITY, KAMESHWARNAGAR, DARBHANGA THROUGH ITS REGISTRAR. 2. THE VICE-CHANCELLOR, LALIT NARAYAN MITHILA UNIVERSITY, KAMESHWARNAGAR, DARBHANGA. 3. REGISTRAR, LALIT NARAYAN MITHILA UNIVERSITY, KAMESHWARNAGAR, DARBHANGA. ………RESPONDENTS. ----------- 3/ 26.11.2010 Having heard counsel for the petitioner and counsel for Lalit Narayan Mithila University as also taking into account that whatever has been decided in the impugned order dated 14.05.2004, in fact, stands affirmed by withdrawal of an earlier writ petition filed by the petitioner. In this context, it has to be noted that the petitioners have also approached this Court against the order of Chancellor Dated 08.01.1998, whereby and whereunder, despite continuation of 2 the petitioner on the post of Peon with effect from 10.07.1978, the Chancellor had held him not to be entitled for regularization on the ground that his appointment was made against unsanctioned post. When the said order of Chancellor was challenged before this Court by the petitioner and Ramesh Jha in C.W.J.C No. 3581 of 1999, this Court had held as follows: “The claim of the petitioners is that they should have been straightway absorbed/regularized against the sanctioned posts of Typist and Peon respectively. However, such submission cannot be accepted, their initial appointments having not made against any sanctioned posts. For induction/appointment against sanctioned posts created/sanctioned after the appointment of petitioners, a procedure in terms with 3 Articles 14 and 16 of Constitution of India is required to be followed and for that if the Chancellor has directed to advertise the posts and then to consider the cases of petitioners along with others. I find no illegality in the said order dated 8th January, 1998. However, taking into consideration the fact that the petitioners are working since 1978. I may mention that they will be entitled for weightage/preference over outsiders and relaxation in the matter of age, at the time appointment to be made in terms with Chancellor’s order dated 8th January, 1998. The posts of Typist and Peon is not yet advertised in terms with Chancellor’s order, the University is directed to take steps to fill up those posts and to complete the process of selection by 4 issuance of appropriate order in favour of selected persons within a period of six months from the date of receipt/production of a copy of this order”. Pursuant to the aforementioned direction given by this Court when the University had taken steps for filling up the post of Typist and Peon and issued the advertisement on 22.02.2002, the petitioner noticing that he did not possess the qualification of matriculation as prescribed for the post of peon had moved again to this Court by assailing the terms of the advertisement including the laying down of the qualification of the matriculation therein. Such writ petition, C.W.J.C No. 4555 of 2002 was however, dismissed as withdrawn by order dated 01.05.2002, by seeking liberty that they would approach Vice- 5 Chancellor of the University in the matter of relaxation. In the resultant impugned order dated 19.05.2004, it has been only held that there was no question of grant of relaxation of qualification in the case of the petitioner, inasmuch as, neither the order of this Court nor the statutes prescribing the qualification for the post of peon had contained a provision for relaxation. In the opinion, of this Court the view taken by the Vice-Chancellor in the impugned order is absolutely flawless, inasmuch as, whenever a post is advertised, the qualification has to be prescribed as on the date of issuance of the advertisement. Relaxation only of age was in fact, envisaged in the earlier order of this Court and that was admittedly given. The petitioner in fact, after finding 6 that he was not qualified in terms of the advertisement had filed C.W.J.C No. 4555 of 2002 but he could not satisfy this Court that there was any error in fixation of the qualification. Mere withdrawal of the writ application with a liberty for filing a representation by the petitioner for relaxation of qualification therefore could not be made a fresh cause of action and in fact, the issue stands concluded by the earlier dismissal of the writ application of the petitioner. Even otherwise when this Court has tried to know from the counsel for the petitioner as to whether such change in qualification was made within a period of six months from the date of the order in C.W.J.C. No. 3580 of 1999, he has very fairly submitted that he was not aware with regard to the exact date of change of qualification. In any 7 event, once this Court would find that the terms of advertisement were challenged by the petitioner and the advertisement itself did not contain any clause for grant of relaxation, the petitioner’s grievance for being granted relaxation as with regard to qualification laid down and prescribed by the statutes is wholly misconceived. That being so, this writ application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)