Sunil Kumar Singh vs The State Of Bihar & Ors on 13 May, 2010

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Patna High Court - Orders

Sunil Kumar Singh vs The State Of Bihar & Ors on 13 May, 2010

In this intra-court appeal, the appellant-writ petitioner has assailed the order dated 11.11.2009 passed by the learned Single Judge in CWJC No. 9379 of 2000 rejecting his prayer for regularization/absorption of his service in BRA Bihar University (hereinafter referred to as 'the University').

Mr. Naresh Chandra Verma, learned counsel for 2 the appellant-writ petitioner submits that the appellant-writ petitioner was appointed by Principal of R. N. College, Hajipur, a constituent unit of the University since 1976 and as such the impugned order refusing regularization/absorption of the appellant-writ petitioner in the year 1999 is not only arbitrary but in the teeth of the Full Bench Judgment of this Court in the case of Braj Kishore Singh & Ors vs. State of Bihar & Ors., reported in 1997(1) BLJ, 686.

In our considered opinion, the plea of regularization of the service of the appellant- writ petitioner has been rightly rejected inasmuch as the Principal of a Constituent College had no power to make the appointment on Class III/ Class IV posts inasmuch as under Section 10 of Bihar Universities Act, 1976 (hereinafter referred to as 'the Act') such power has been vested only in the Vice-Chancellor.

Thus, the appointment of the appellant-writ petitioner having been made by an authority who had no power to make such appointment would confer no right on him for being regularized in service of the University.

That apart, there is a clear finding arrived on the 3 basis of the materials on record that such appointment of the appellant-writ petitioner was made against an unsanctioned posts inasmuch as the claim of the appellant-

writ petitioner to have been appointed on a post of Sorter in the library of the College has been found to be against fourth unsanctioned posts. On the basis of such appointment against unsanctioned posts, the appellant-writ petitioner cannot claim any benefit of regularization in terms of Section 35 of the Act, which reads as follows:-

"35. No post for appointment shall be created without the prior sanction of the State Government.-

Notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such College-

(a) as is established, maintained or governed by the State Government; or

(b) as is established by a religious or linguistic minority;

[(i) After the commencement of this Act no teaching or non-teaching post involving financial liabilities shall be created without the prior approval of the State Government.]

(ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance;

Provided that the State Government may, by an order, revise the pay scale attached to such post or sanction any new allowance.

(iii) shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment or any 4 other benefit having financial implication to any person holding a teaching or non-teaching post;

(iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government. (2) Notwithstanding anything contained in this Act, no College other than one mentioned in clauses (a) and (b) of Sub-

Section (1), shall, after the commencement of the Act, appoint any person on any post without the prior approval of the State Government. Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification.

[(3) Any appointment or promotion made contrary to the provisions of this Act, or Statues, Rules or Regulations made thereunder or made in irregular or unauthorized manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realized from the officers making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.]"

Finally, the reliance placed by the appellant-writ petitioner on the judgment of Full Bench in the case of Braj Kishore Singh (supra) also seems to be wholly misplaced inasmuch as first of all in paragraph 34 of the said judgment it was clarified that even if the appointment 5 was not made by the Vice-Chancellor of the University, at least there was approval of such appointment of the petitioners in the case of Braj Kishore (supra). Here there is no such approval.

Again from reading of paragraph no. 32 of the Full Bench Judgment, it would be clear that absorption/regularization of any service of the university is permissible only if a person was appointed against a sanctioned post or a post covered by the staffing pattern. In this context, the finding recorded by the learned single Judge is unexceptional that the appellant-writ petitioner was not appointed on the sanctioned post or on the post under staffing pattern inasmuch as there were only three posts of sorters even in the staffing pattern whereas the appellant-writ petitioner was fourth Sorter appointed by the Principal of the College.

Thus, we find ourselves in complete agreement with the view recorded by the learned single Judge and the order passed by the State Government refusing absorption/regularization of such an illegal appointment of the appellant-writ petitioner has rightly not been interfered with in the impugned order passed by the learned Single 6 Judge.

We accordingly while concurring with the findings and conclusion recorded by the learned Single Judge, find no merit in this appeal and the same is accordingly dismissed. There would be, however, no order as to costs.

(Dipak Misra, CJ.) (Mihir Kumar Jha, J.) kanchan

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Patna High Court - Orders