CIVIL WRIT JURISDICTION CASE No.3751 of 1994 In the matter of an application under Articles 226 & 227 of the Constitution of India. 1. RAM SHRESHTHA RAM, son of Ram Swaroop Hazra, resident of village – Bangari, PS Pipra, District East- Champaran 2. Shyamal Kishore Singh, son of Kusheshwar Prasad Singh, resident of Station Road, PS and Town Motihari, District- East Champaran ........ Petitioners Versus 1. BABA SAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, through its Registrar 2. The Vice Chancellor, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur 3. The Pro-Vice-Chancellor, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur 4. The Registrar, Babasaheb Bhimrao Ambedkar Bihar University, Muzaffarpur 5. The Co-ordinator, College Development Council (CCDC) Babasahed Bhimrao Ambedkar Bihar University, Muzaffarpur 6. The Professor-in-Charge, Munshi Singh College, Motihari, PS Motihari, District East Champaran 7. Ram Babu Rai, son of name not known to the petitioners, present working on IVth grade post in Munsi Singh College, Motihari 8. Sri Nandan Singh, son of name not known to the petitioners, presently working on IVth grade post in Munsi Singh College, Motihari 9. Prem Chand Singh, son of name not known to the petitioners, presently working on IVth grade post in Munsi Singh College, Motihari 10. Abdul Mazid, son of name not known to the petitioners, presently working on IVth grade post in Munsi Singh College, Motihari 11. Shamim Khan, son of name not known to the petitioners, presently working on IVth grade post in Munsi Singh College, Motihari ......Respondents with MJC No.1181 of 1993 In the matter of an application under Article 215 of the Constitution of India read with sections 11 and 12 of the Contempt of Court Act 1971. 1. PRAMOD KUMAR, Son of Shri Jagat NarainKumar, resident of Village –Diawarpur, PS Kisaria, Dist. East Champaran 2. Sunil Kumar Singh, Son of Shri Raj Kishore Singh, resident of Village and PS Soha, DistrictSaharsa, at present resident of Station Road, PS Motihari, Town, Distt. East Champaran 3. Sahyed Sajjad Haider, Son of Late Sayed Naseem Haider, Housing Colony, Ranchi at present Mohalla Agrwa, PS Motihari Town, Distt.East Champaran 2 4. Dilip Kumar Singh, son of Shri Kumar Lakshmeshwar Singh, Mohalla Chandmari, PS Motihari Town, District East Champaran 5. Sudhir Kumar Rao, son of Shri Satya Narain Rao, resident of Village Dadha, PS Joggapatti, District West Champaran 6. Ajay Kumar, son of Krishna Kant Kumar, resident of village Sikarpur, PS Sikaria, Dist. West Champaran 7. Sashi Ranjan Prasad Singh, son of Shri Krishna Prasad Singh, resident of village Gohuni, PS Bachwara, District Begusarai, at present resident of Station Road, PS Motihari Town, District East Champaran 8. Harendra Singh, son of late Raghubir Singh, resident of village Jamala, PS Chhatauni, District East Champaran 9. Mohammad Ekram Khan, son of late Aziz Khan, resident of Pathan Toli, PS Motihari Town, Distt. East Champaran 10. Shyamji Pandey, son of Shri Shivaji Pandey, resident of Mohalla Chandmari, PS Motihari Town, District East Champran 11. Prahalad Swain, son of shri Sridhan Swain, at present resident of Station Road, PS Motihari town, District East Champran 12. Manjoor Alam, son of Shri Mohammad Sahid Mian, resident of Village Suryapur, PS Pipra Kothi, District East Champran 13. Ram Sresth Ram, son of Shri Ram Swarup Hazara, resident of village Engari, PS Pipra, District East Champran 14. Sudama Sahni, son of Saryug Sahni, resident of village Akhuna, PS Chiraiya, District East Champran 15. Chandrika Singh, son of Shri Rambriksha Singh, resident of village Loksa, PS Chatauri, District East Champran 16. Atahar Ali, son of Shri Kasi Zami Hasan, resident of Station Road, PS Motihari town, District East Champran 17. Shyamal Kishore Singh, son of Kusheshwar Prasad Singh, resident of Station Road, PS Motihari Town, District East Champran 18. Saroj Kumar Pathak, son of late Ramakant Pathakm resident of village Bathana, PS Goraul, Dist. Vaishali 19. Umesh Singh, son of Shri Ram Lakshman Singh, resident of Harihar, PS Chiraiya, District East Champran ..... ...... Petitioners Versus 1. STATE OF BIHAR 2. Professor (Dr.) B R Singh, Vice Chancellor of Bihar University (since renamed as Baba Saheb Bhim Ram Ambedkar Bihar University), Muzaffarpur (hereinafter referred to as the University) up to 25.6.1993 3. Sri A K Vishwash, IAS, Commissioner Tirhut Division –cum- Vice Chancellor of the Bihar University, Muzaffarpur 3 4. Sri Munindra Jha, Registrar of the Bihar University, Muzaffarpur 5. Sri S B Singh, Deputy Registrar of the Bihar University, Muzaffarpur 6. Sri K P Sinha, Co-ordinator College Development Council (CCDC), Bihar University, Muzaffarpur ....... Opposite Parties ************** In CWJC No.3751 of 1994 For the Petitioners :Dr. Anil Kumar Upadhyay For the University :Mr. Rajendra Kumar Giri For Respondent no.7 :Mr. Vinod Kumar Singh For the Respondent nos. 8 to 11 :Mr. Ashok Jang Bahadur In MJC No.1181 of 1993 For the Petitioners :Mr. Anil Kumar Upadhyay For the State :Ms.Juhi Kumari, AC to AAG 13 For the University :Mr. Harendra Kumar Tiwari P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE AKHILESH CHANDRA S K Katriar, J. Both the proceedings before us arise out of a common judgment dated 28.4.93, passed by a Division Bench of this Court in CWJC No.6105 of 1992 and CWJC No.4649 of 1991. Two of the 19 petitioners of CWJC No.6105 of 1992, are the petitioners in the present CWJC No.3751 of 1994, and all the 19 petitioners of the same writ petition have joined the present MJC No.1181 of 1993. The writ petition is with respect to appointment of class IV employees, and the contempt application is with respect to the alleged non-implementation of the order regarding class III as well as class IV employees of the B R A Bihar University. 2. We shall first deal with CWJC No. 3751 of 1994. A brief statement of facts essential for the disposal of the writ petition may be indicated. The respondent University had issued advertisement dt. 18.4.90, inviting applications for substantive appointment to various posts of class III and class IV. After completion of the selection process, the said 19 persons were appointed on different posts of class III and class IV, by office order dated 18.4.90 4 (Annexure 1). This was followed by office order dated 27.6.92 (Annexure 2), whereby appointments of the 19 persons (the petitioners in the analogous MJC No.1181 of 1993), were cancelled. It further stated that steps be taken for regularization of services of the persons who were working in the respondent college on daily wages against unsanctioned posts. The said 19 persons challenged the same by preferring the aforesaid CWJC No.6105 of 1992. Respondent no.7 herein, and other similarly circumstanced daily- wage employees, preferred the aforesaid CWJC No.4649 of 1991, for direction to the respondent authorities for regularization of their services. By a common judgment of a Division Bench of this Court of 28.4.93, CWJC No. 6105 of 1992 was allowed, the order dated 27.6.92 (Annexure 2) was set aside, and the analogous CWJC No.4649 of 1991 was dismissed. Some of the petitioners of CWJC No.4649 of 1991, challenged the judgment of the Division Bench by preferring SLA (Civil) no.3601 of 1994 (Prem Chand Singh & Others), before the Supreme Court which was dismissed In Limine by order dated 9.3.94 (Annexure 7). The judgment of the Division Bench attained finality. 3. The petitioners of CWJC No.6105 of 1992 filed an application before the respondent authorities for their reinstatement in service. For reasons not clear to us from the materials on record, only 13 persons were reinstated in service with arrears of salary from the date they were allowed to resume their duties. The remaining 6 persons were not reinstated leading to the present CWJC No.3751 of 1994 at the instance of the two of the petitioners of CWJC No.6105 of 1992. As stated hereinabove, all the 19 petitioners of CWJC No.6105 of 1992 have preferred the analogous contempt application bearing MJC No.1181 of 1993, including the four persons who have not been reinstated, and have not joined the present writ petition, 5 raising various grievances. We shall deal with the same when we will deal with the contempt application. 3.1) Before we proceed further, we would like to clarify that respondent no.7 was appointed on compassionate ground, was a petitioner in the said CWJC No.4649 of 1991, which was dismissed by the Division Bench notwithstanding which he has continued in service till date. 3.2) Respondent nos. 7 to 11 were daily wage employees who were regularized in pursuance of Annexure-2, but have continued till date inspite of the judgment of the Division Bench of 28.4.1993. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Dr. Anil Kumar Upadhyay for the petitioners, Mr. Rajendra Kumar Giri for respondent nos. 1 to 6, Mr. Vinod Kumar Singh for respondent no.7, and Mr. Ashok Jung Bahadur for respondent nos. 8 to 11, have advanced submissions in support of their respective stand. It is evident on a perusal of the office order dated 18.4.90, appointing the 19 persons, that they were so appointed after issuance of advertisement and after completing the due selection process. It is further evident that they were appointed against sanctioned posts in M S College, Motihari. This position is duly acknowledged by learned counsel for respondent no.6. It is further relevant to state that respondent nos. 7 to 11 were working on daily wages and, in an effort to regularize their services along with similarly circumstanced persons, the University had formulated a scheme for their regularization leading to the aforesaid order dated 27.6.92 (Annexure -2) which has been set aside by the judgment dated 28.4.93, passed by the Division Bench. The case for regularization canvassed in the analogous CWJC No.4649 of 1991, was also rejected. In such a situation, it immediately follows that the respondent authorities were duty-bound to reinstate the 19 persons, and discontinue the daily 6 wagers, both forthwith and simultaneously. The respondent authorities reinstated 13 of them, disobeyed the order of this court in so far as the remaining 6 persons are concerned, and equally contumaciously disobeyed the order with respect to the daily-wage employees with respect to respondent nos. 7 to 11 herein. In such a situation, we are left with the only option to reinstate the services of the two petitioners along with the other four persons who are petitioners in the analogous contempt application. We are mindful of the position that those of the four persons, namely, Sahyed Sajjad Haider, Atahar Ali, Saroj Kumar Pathak, and Umesh Singh, are not parties to the present writ petition. However, this will not come in the way of implementation of the judgment in so far as the remaining four persons are concerned, particularly in a situation where they are parties to the analogous contempt application for implementation of the terms of the same judgment. We, therefore, conclude that the two persons along with the said four persons shall be reinstated in service forthwith with effect from 18.4.90, will all consequential benefits including arrears of salary, due seniority as per the merit list, etc., from the date of their initial joining. 5. We must consider the tenor of the order dated 27.6.92 (Annexure 2), for the purpose of disposal of the present matter, which has been set aside by the Division Bench. The same is reproduced hereinbelow:- “ The Vice-Chancellor, in consideration of the report submitted by the enquiry committee constituted vide Memo No.158/DRI dated 14.4.1992 to enquiry into the allegations of irregularities in the appointment of non-teaching staff made at M.S.College, Motihari vide office order No.B/7307 dated 18.4.1990, has been pleased to order that all appointments made by the University vide Memo No.B/7303 dated 18.4.1990 are not valid and, as such, are cancelled. “ The Vice-Chancellor has further been pleased to direct the Principal, M.S.College, Motihari to relieve all the persons, appointed vide Memo No.B/7303 dated 18.4.1990, of their duties with immediate effect. “ The Vice-Chancellor has also been pleased to direct the Principal, M.S.College, Motihari to invite 7 claims for regularization of service from all such persons who are working in the college against unsanctioned posts of non-teaching staff from dates on or before 10.5.1986 on the basis of appointment made by the Principals from time to time and send the claim statement alongwith all relevant documents as well as his comment regarding their continuous and satisfactory service in the college for consideration of the University.” The appointment of 19 persons was set aside by the authorities on the ground “........ to enquire into the allegations of irregularities in the appointment...”. No ground at all has been put forth before us to point out the alleged irregularities which, in any case, were not enquired into, and their appointments done in a regular manner were set aside. Secondly, it is obvious that the reason for termination of their services is manifest from the third paragraph of the order which states that steps for regularization of the services of daily- wagers were being taken. It is evident that such a scheme to regularize the services of daily-wagers including respondent nos. 7 to 11 herein cannot be at the cost of the regularly recruited employees. Furthermore, the attempt to regularize their services was repelled by the Division Bench by the judgment dated 28.4.93. In such a situation, the office order dated 27.6.92, though already adjudicated by the Division Bench, was a draconian exercise of executive powers. We record our strong sense of displeasure for such an approach. 6. We now come to the case of respondent nos. 7 to 11. We are mindful of the position that in substance their case for regularization were rejected with the dismissal of CWJC No.4649 of 1991, notwithstanding which they have been allowed to continue till date. They have continued for all these years, ranging between 25 to 30 years. The issue is not free from difficulties. However, in view of the position that they have worked for so many years and are approaching the stage of superannuation from service, we do not wish to dispense with their services. As a matter of extra-ordinary indulgence and compassion, we do not interfere with their 8 continuance which can, however, never be at the cost of the regularly appointed persons including the aforesaid six persons. 7. We now take up the analogous MJC No.1181 of 1993. We have heard Dr. A K Upadhyay for the petitioners, Mr. Hari Shankar Rai, learned Assistant Counsel to AAG IX, and Mr. Harendra Kumar Tiwary for opposite party nos. 2 to 6. This contempt application, as stated hereinabove, is at the instance of the 19 petitioners of CWJC No.6105 of 1992. Those of the 13 persons who have been reinstated raise a grievance that their services have not been reinstated with effect from 18.4.90, and have been deprived of the consequential benefits like arrears of salary, seniority etc. The remaining persons, two of whom are the petitioners in the aforesaid CWJC No.3751 of 1994, raise a grievance with respect to non- reinstatement in service with consequential benefits. In view of the position that the remaining six persons are petitioners in this contempt application, and in a position when the authorities have acted in contumacious disregard of the judgment of this Court, we hold that the four persons (who are not parties to the writ petition before us, but are parties to the contempt application), are entitled to reinstatement with effect from 18.4.90, with all consequential benefits including arrears of salary, seniority etc. We do not wish to pursue the contempt application any further. 8. In the result, both CWJC No.3751 of 1994, and MJC No.1181 of 1993, succeed. The respondent authorities are directed to reinstate the two petitioners of the writ petition herein, along with the four petitioners of the contempt application, namely, Sahyed Sajjad Haider, Atahar Ali, Saroj Kumar Pathak, and Umesh Singh, with effect from 18.4.90, with all consequential benefits including arrears of salary and due seniority. Respondent nos. 7 to 11 of the writ petition may be allowed to continue, but under no circumstance at the cost and to the detriment of the regularly appointed persons 9 including the six persons. In the peculiar facts and circumstances of the case, we do not pass any order as to payment of interest. However, if the judgment is not implemented within a period of four months from today, then the six persons would be entitled to interest @ 11% from the date the amounts became due till the date of payment. ( S K Katriar, J.) Akhilesh Chandra, J. I agree. ( Akhilesh Chandra, J.) Patna High Court, Patna The 10th of May 2011 AFR/ mrl