IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4360 of 2007 1. Md.Rafi Ahmad, Son of Late Md. Alim, presently working as Assistant Librarian, T.P. Verma College, Narkatiyaganj, Dist-West Chamapran. 2. Anand Verma, Son of Birendra Kumar Verma, presently working as Laboratory Technician, Department of Zoology, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 3. Arya Kumar, Son of Sukhdeo Prasad, presently working as Accountant, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 4. Rajiv Ranjan, Son of Savalia Bihari Sharan, presently working on the post of Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 5. Rajeshwar Pathak, Son of Ram Harsh Pathak, presently working as Library Sorter, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 6. Radha Krishna Tiwary, Son of Adhya Shankar Tiwary, presently working as Routine Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 7. Ajay Kumar Singh, Son of Abhay Nandan Lal Sinha, presently working as Counter Cashier, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 8. Moinul Haque, Son of Ainul Haque, presently working as Lab. Technician, Department of Physics, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 9. Sudhir Kumar Verma, Son of Late Heera Prasad Verma, presently working as Physical Training Instructor, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 10. Birendra Kumar MIshra, Son of Roopath Mishra, presently working as Lab Incharge, Dept. of Psychology, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 11. Mohan Prasad, Son of Girija Nandan Prasad, presently working as Lab. Technician, Dept. of Botany, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 12. Hari Shankar Tiwary, Son of Baldeo Tiwary, presently working as Lab Technician, Dept. of Chemistry, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 13. Keshav Kishore Pandey, S/o Late Phulena Pandey, presently working as Correspondence Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 14. Ashraf Ali Khan, S/o Late Attar Hussain Khan, presently working as Routine Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 15. Bhushan Tiwary, S/o Bishwanath Tiwary, presently working as Lab. Incharge, Dept. of Geography, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 16. Sunil Kumar Verma, S/o Jamuna Prasad, presently working as Physical Training Instructor, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 17. Shankar Raut, S/o Late Jhakar Raut, presently working as Routine Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 18. Nisar Ahmad, S/o Late Sheikh Ali Hassan, presently working as Routine Clerk, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 19. Hardwar Thakur, S/o Kari Thakur, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 20. Muni Lal Prasad, S/o Ashrafi Raut, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 21. Bacha Mishra, S/o Late Kapil Mishra, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 22. Shatrughan Dubey, S/o Ghanghi Dubey, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 23. Manager Singh, S/o Jagat Narain Singh, presently working as Night Guard, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 24. Bishwanath Prasad, S/o Indrasan Prasad, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 2 25. Hari Prasad, S/o Naresh Prasad, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 26. Sheo Sharan Hazra, S/o Shri Sugan Hazra, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 27. Banarsi Mahto, S/o Late Donda Mahto, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 28. Braj Kishore Yadav, S/o Ganga Prasad Yadav, presently working as Lab-boy, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 29. Dina Nath Tripathi, S/o Shri Janaki Sharan Tripathi, presently working as Lab- boy, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 30. Dinesh Prasad, S/o Mahesh Raut, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 31. Khedan Raut, S/o Late Jagannath Raut, presently working as Lab-boy, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 32. Lal Chatri Mahto, S/o Late Kishan Mahto, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 33. Kanchan Hazra, S/o Bircha Hazra, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 34. Kedar Hazra, S/o Ribhal Hazra, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 35. Pramod Pandey, S/o Sukhdeo Pandey, presently working as Lab-boy, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 36. Lalan Chaudhary, S/o Bijali Chaudhary, presently working as Specimen Collector, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 37. Sitaram Patel, S/o Bhauli Raut, presently working as Gardner, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 38. Anil Kumar Verma, S/o Late Lalan Prasad Verma, presently working as Lab-boy, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 39. Arjun Mishra, S/o Shri Laxmikant Mishra, presently working as Clerk (Grade-III), T.P. Verma College, Narkatiyaganj, Dist- West Champaran. 40. Danesh Raut, S/o Late Ramjivan Raut, presently working as Peon, T.P. Verma College, Narkatiyaganj, Dist- West Champaran. … Petitioners Versus 1. The State Of Bihar through the Commissioner-cum-Secretary, Department of Human Resources Development, Govt. of Bihar, Patna. 2. Chancellor, Universities of Bihar, Raj Bhawan, Patna 3. BRA Bihar University, Muzaffarpur through its Registrar. 4. Vice Chancellor, BRA Bihar University, Muzaffarpur 5. Registrar, BRA Bihar University, Muzaffarpur. … Respondents For the Petitioners: M/s. Purushottam Kumar Jha, Asim Jha, and Abhinav Srivastava, Advocates. For the State: Mr. Sanjeev Kumar, G.P.-6. For the University: Mr. Harendra Kumar Tiwary, Advocate. ----------- 4 20.10.2011 Heard learned counsel for the petitioners, State and BRA Bihar University, Muzaffarpur. Petitioners in this application are non-teaching employees of T.P. Verma College, Narkatiyaganj, West 3 Champaran, which is a constituent unit of BRA Bihar University, Muzaffarpur. The college in question was established in the year 1971 and got affiliated to B.R.A. Bihar University. The State Government, subsequently vide notification dated 24.01.1981 decided to convert 30 more colleges into constituent unit of any University, in addition to 108 colleges already made constituent colleges. The T.P. Verma College, Narkatiyaganj was also included in the list of 30 colleges and it became a constituent unit of B.R.A Bihar University, Muzaffarpur. Petitioners’ case is that after establishment of the college, an ad hoc committee of the college was also constituted on 04.06.1971. The ad hoc committee took steps for appointment on teaching and non-teaching posts in the college to ensure smooth functioning of the college. The college in question, with the passage of time, became one of the most important and leading educational institutions of the locality, with a large number of students. It got affiliation from the then Bihar University (now B.R.A. Bihar University), Muzaffarpur, and vide notification dated 24.01.1981 it became constituent unit of B.R.A. Bihar University, Muzaffarpur. So far as petitioners are concerned, they were appointed on the sanctioned posts by the competent authority, subject to the terms of conditions of service as applicable in the case of other existing constituent colleges of the University. Petitioners, who were working in the college prior to its being a constituent unit of the University, 4 after its being taken over by the University, all teaching and non- teaching staff of the college became entitled for all such benefits, for which employees of a constituent unit of the University are entitled. Petitioners, became entitled for their salary, but it was not being paid to them. They represented before the Vice Chancellor and Registrar of the University and then representation was considered. Since petitioners had been appointed giving full adherence to staffing pattern. The matter of regularization of their services and payment of salary was considered by the State Government. The State Government vide a resolution dated 04.06.1987 constituted a Screening Committee to screen, verify, and submit report regarding the appointment made in consonance with the staffing pattern, the committee submitted report to the State Government on 26.04.1989 and an agreement was entered into, in between the State Government and the Bihar State Universities and College Employees’ Association, wherein it was stipulated that the employees of the Universities and the Colleges will be given same benefits as was given to the employees of the State Government. Another demand raised by the Employees’ Association was that appointments made on different posts after 15.08.1976, on the basis of staffing pattern will be approved with retrospective effect, payment of salary will be made to persons appointed on such posts. No fresh appointments will be made, until services of persons appointed on staffing pattern are cent percent regularized. Persons’ appointment on staffing 5 pattern, will be adjusted on their respective posts. Petitioners’ case is that despite this agreement nothing was done. Finally a resolution dated 10.05.1991 was issued by the Human Resources Development Department of the State Government for creating posts on staffing pattern, in the University and College. This was also decided that only those persons who have been appointed up to 10.05.1986, shall be adjusted on such posts. Petitioners had been appointed, according to staffing pattern, prior to 10.05.1986 and they were not being regularized in terms of the resolution dated 10.05.1991, as such they filed C.W.J.C. No. 5820 of 1992 seeking relief to regularize their services and make payment of their arrears as well current salary in their prescribed pay scale. The writ application was heard and disposed of with a direction that the Government in the Higher Education Department will make its own scrutiny and take final decision within four months. The State has given liberty to verify the records of the College and University for taking final decision in the matter of regularization. On the basis of the records, since, the Government did not take any action to implement the direction, MJC No. 346 of 2004 was filed by the writ petitioners. During the pendency of contempt petition the State Government decided to regularize the services of 41 persons, which also included present petitioners. Supplementary show cause was filed in contempt application informing the Court that direction has been completed. Only grievance of the petitioners is that their services 6 have been regularized with effect from the date of issuance of the notification, but it should have been with effect from the date of their appointment. Since they have continuously discharged their duties, after being appointed in terms of the staffing pattern, their services also should have been regularized w.e.f. the date of appointment, as it has been done in case of non- teaching employees of other colleges, have been paid their arrears of salary with effect from the date of their appointment, i.e. the period prior to regularization. Learned counsel for the petitioners has placed several other judgments of this Court and the Apex Court in order to show that Clause-VIII of impugned notification dated 17.06.2005 issued by Human Resources Development Department, Higher Education is not in consonance with paragraph 12 of the Division Bench judgment passed in LPA No. 1457 of 2001 ( Braj Kishore Singh & others Vrs. The State of Bihar and others), duly affirmed by the Apex Court. In Clause-VIII of impugned notification, petitioners’ services have been regularized with effect from the date of the creation of the post and regularization as well as issuance of the date of notification. Counsel for the petitioners submits that it should have been either with effect from the date of their appointment or w.e.f. the date the college became constituent unit of the University. The submissions has been made by the petitioners in the light of paragraph-12 of judgment in Braj Kishore Singh’s case which is as follows: 7 “Admitted fact is that the appellants were appointed in 1979. Their appointments were approved by the University. The only question in controversy was as to whether their appointments was legal or not. The State Government took the stand that as that was beyond the staffing pattern, the appointment was not permissible in law. The Full Bench of this Court as stated above has held that the appellants were appointed against the post as per staffing pattern. However, it was open to the State Government to consider the validity of their appointment for the purpose of granting or refusing to grant post-facto approval in terms of Section 35 of the Act as interpreted by the Full Bench. The Full Bench further observed that it would have sent the mater to the State Government to consider the validity of their appointment but as stated above taking into consideration more than 17 years of their services, ordered for regularization of their services against the post within the staffing pattern as applicable to the college. Though the Full Bench did not pass specific order as to from which date the regularization is to take effect but as it appears from paragraph 32 of the judgement that the Full Bench took note of the judgement of the Apex Court in the case of Direct Recruit Class-II Engineering Officers Association and held that the period prior to regularization shall be counted for 8 the purpose of consequential benefits. It is not in dispute that the judgment passed in Braj Kishore Singh and others Vrs. The State of Bihar has been affirmed by the Hon’ble Supreme Court and any finding recorded in his judgment is the law of the land. The finding recorded in Braj Kishore Singh’s case cannot be changed, altered, modified or re-viewed by any Tribunal, Forum, or even by the High Court. The State Government and the University as such has no other option than to follow the finding recorded in Braj Kishore Singh’s case and to pass specific order in case of the petitioners that they are entitled for their arrears of salary for the period prior to regularization and that period shall also be counted for the purpose of consequential benefits. In the case of the petitioners the University and the State Government has option to select the date of regularization either from the date of petitioners’ appointment or with effect from the date the college became constituent unit of the University. The respondent-University and the State Government are directed to pass necessary orders in this regard, within four weeks from the date of production/communication of this order. Entire arrears of salary to the petitioners for this period shall be paid within further two weeks from the date of passing of the order. Md. Ibrarul (Mridula Mishra, J.)