Patna High Court - Orders
Birendra @ Birendar Pd.Kamat vs The Chancellor,Bihar & Ors on 13 September, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC NO.6052 OF 2007
BIRENDRA @ BIRENDAR PD.KAMAT, S/O SRI
SUKHADEO KAMAT, R/O VILLAGE MENHI, P.O.
AMAHI, P.S GHOGHARDIHA, DISTRICT
MADHUBANI.
.....................PETITIONER.
VERSUS
1.THE CHANCELLOR,BIHAR, PATNA.
2.THE VICE CHANCELLOR, L.N. MITHILA
UNIVERSITY, DARBHANGA.
3.THE REGISTRAR, L.N. MITHILA UNIVERSITY,
DARBHANGA.
4.THE DEPUTY REGISTRAR,
5.THE PRINCIPAL, CHANDRA MUKHI BHOLA
COLLEGE, DEORH GHOGHARDIHA, MADHUBANI.
...........................RESPONDENTS.
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03/ 13.09.2011Heard counsel for the parties.
The prayer of the petitioner in this writ application reads as follows:-
"That this is an application on behalf of the petitioner for issuance of an appropriate writ or writ, direction or directions, order or orders, command or commands against the concerned respondents, who have acted illegally, malafidely and arbitrarily in sequence of the petitioner's service has not regularize nor payment has been made up till now while the petitioner is continue serving on his post."
From the aforementioned prayer, it would be clear that the petitioner while continuing in the service of a constituent College of Lalit Narayan Mithila University seeks regularization of his payment of salary.
The first important thing to be 2 noted in this regard is the following statement of the petitioner in Paragraph no. 27 of the writ application which reads as follows:-
"That the petitioner has not come earlier before the Hon'ble High Court save and except C.W.J.C No. 5933 of 1983 for redressal of his grievances and same was permitted to be withdrawn as representation of petitioner was pending before the said University."
It thus becomes clear that the petitioner for the same cause of action had earlier moved before this Court in C.W.J.C NO. 5933 of 1983. Though the petitioner did not enclose the copy of the aforesaid order disposing C.W.J.C No. 5933 of 1983, but learned counsel for the petitioner very fairly while disclosing this aspect during the course of making his submission has produced the copy of the order of this Court dated 09.08.1985 in C.W.J.C No. 5933 of 1983 which reads as follows:-
"Heard learned counsel for the petitioner and the learned counsel appearing for the University. After some argument learned counsel for the petitioner seeks permission to withdraw this application. It appears that the representation of the petitioner before the authorities concerned is still pending and has not been 3 disposed of. The petitioner claims to have been appointed as Laboratory Boy sometimes back but he was not appointed by the appropriate authority as such.
However, there are certain
communications from the
Principal of the college that he is working as Laboratory Boy without receiving any salary. From the materials placed before me it further appears that there are still some vacant posts of Laboratory Boy. It is stated that appointments may be made on those posts in near future. If such appointment is made that authorities concerned may consider the case of the petitioner also in the light of various communications made by the Principal of the College. With the above observation this application is permitted to be withdrawn as prayed for. The petitioner may, if so advised, file a fresh representation before the authorities in this connection."
It would thus become clear that this Court had given no liberty to the petitioner to move again for the same cause of action. It is also an admitted fact that no order has been passed by the Respondents enabling the petitioner to create a fresh cause of action with regard to either his regularization of service or payment of his salary. This writ application therefore, is simply not maintainable being barred by the principle of res judicata or constructive 4 res judicata.
This court, however, in order to do complete justice between the parties has also gone into the merits of the claim of the petitioner. The Petitioner claims that while Chandra Mukhi Bhola College, Deorh Ghogardiha, Madhubani (hereinafter referred to as the College) was an affiliated College of the Lalit Narayan Mithila University, the petitioner was appointed in the year 1972 by the order dated 25.09.1972 and since then he is continuing in service for almost 39 years and accordingly when there is also a sanctioned post for the petitioner as is claimed on the basis of the letter of the Coordinator of Lalit Narayan Mithila University, dated 20.05.1982, there should be no difficulty in regularizing the service of the petitioner on the post on which he has been working since 1972.
In this case a counter affidavit has been filed by the Respondent University wherein, it has been explained that the College in question was an affiliated College of the University till 1979 and in 5 the year 1980, the College was made a constituent unit in terms of Section 4(1)(14) of the Bihar State Universities Act (hereinafter referred to as the Act). It has also been stated that at the time of the College being made constituent, the Screening Committee had examined the claim of each and every teaching and non teaching employee including the case of the petitioner, and the petitioner was included in the list of employees of unsanctioned post and as such his appointment was neither recognized by the University nor his payment of salary was made after the College was made a constituent unit of the University in 1980. As a matter of fact, counsel for the University has also pointed out that the services of the petitioner and eight other Class-IV employees were terminated by University letter dated 11.01.1984. Additionally, it has been further asserted in the counter affidavit that the University in terms of the decision of the State Government was not obliged to take over the services of each and every alleged employee working in the 6 College prior to its being made constituent, inasmuch as, such absorption was only permissible for the persons who has been appointed against a sanctioned post and since the name of the petitioner was included in the list of persons continuing on unsanctioned post (list B-2), there was no question of his being absorbed in the services of the University.
The learned counsel for the petitioner, however has place reliance the appointment letter of the petitioner as contained in Annexure-1 dated 25.09.1972, which would go to show that on 03.09.1972, the petitioner had filed an application for appointment in the College and which had led to appointment of the petitioner for a period of six months on temporary basis. Surprisingly this appointment letter does not mention of any post on which such appointment of the petitioner was made by the Convener of the affiliated College. This appointment letter of the petitioner for a period of six months only would automatically lead to the irresistible conclusion that the petitioner had no claim 7 whatsoever of remaining in the College in picture after expiry of the period of six months. It has to be noted that there is no other order, allowing continuance of the services of the petitioner after expiry of a period of six months from the date i.e 25.09.1972.
The next document in the form of Annexure- 2 dated 20.02.1979 issued after seven years of the alleged appointment of the petitioner against non existing and unsanctioned post also does not improve the case of the petitioner because by that he is said to have been appointed on the post of Laboratory Boy on temporary basis against the sanctioned post. This letter dated 20.02.1979 was however examined by the screening Committee constituted by the University after the College was made constituent and it was found that the petitioner's appointment was not made against the sanctioned post but on an unsanctioned post. The petitioner's appointment therefore, in the year 1979 having been allegedly made on the post of Laboratory Boy by the Principal of the 8 College would raise a question as to whether the Principal of the affiliated College was ever authorized to make the appointment on the post of Laboratory Boy.
The University had already laid down the norms for functioning of the Governing Body of the affiliated College and in those norms the power of appointment was vested with the Governing Body and not with the Principal of the College. Any appointment made by the Principal therefore, being in the teeth of the provisions could not have been accepted by the Screening Committee for the purposes of absorbing the services of the petitioner in the University. Accordingly, the claim of the petitioner for his being absorbed came to an end on 11.01.1984, when his services were terminated under the orders of the University along with eight others as has been clearly reported by the University consistently before this Court as also before the Lok Ayukta where also the petitioner has moved for the same relief.
A question therefore, would arise as to whether the person whose services 9 have been terminated on 11.01.1984 can still be permitted to move this Court for regularization of his service in the year 2007? The petitioner, however, has an answer that some of the Principals had reported about his working in the College even after 11.01.1984. It is not very difficult for this Court to reject such submission, inasmuch as, if the petitioner was continuing in the College from 1972 as has been sought to be claimed in this writ application, his 39 years service having rendered no remuneration, he now cannot claim regularization of his service as his appointment was never made by the Competent Authority and was not recognized by the University in terms of Section 4 (1)(14) of the Act.
The reference to the proceedings of the Governing Body dated 14.02.1980 as with regard to according post facto approval of the petitioner will have little relevance in view of the report prepared by the University which had found the petitioner not working against the sanctioned post. In any event, the power of appointment of the 10 Managing Committee/Governing Body was limited up to 31.12.1976, before the Act had come into force. After 31.12.1976, when the Act was not brought into force, no appointment was permissible without prior sanction and creation of the post and approval thereof in terms of Section-35 of the Act. Admittedly, the earlier appointment of the petitioner in the year 1972 for a period of six months could have given him at the best the benefit of continuing in service till 31.12.1976, and therefore, his subsequent alleged appointment dated 20.02.1979 being fresh appointment on the post of Laboratory Boy, the same had to be strictly in accordance with the provisions made under the Act. It is however the finding of the University that the subsequent appointment of the petitioner was never made in terms of Section-35 of the Act and accordingly, the case of the petitioner for his take over /regularization/absorption of service was rejected way back in the year 1984.
It is this aspect of the matter, which also become significant in view of 11 the earlier order of this Court. Admittedly, the petitioner had moved for the same relief and had been left to agitate his grievance for fresh appointment against the remaining vacancies in the College. The University has also explained in the counter affidavit that the case of the petitioner was also considered in the course of fresh appointment but he was not found fit for such appointment.
In that view of the matter, there would be no question now to allow the petitioner to raise an issue which was even earlier considered by this Court and was rejected by leaving the petitioner to seek his fresh appointment. In any event, the writ application seeking to spouse the cause of action of the year 1980 when the College was made the constituent unit of the Lalit Narayan Mithila University should not be allowed on the ground of unexplained delay and laches, inasmuch as, this writ application came to be filed on 08.05.2007. Had the University passed any order in terms of the earlier order of this court dated 09.06.1985, probably the petitioner 12 could have the fresh cause of action but the University rightly did not choose to revive such dead case. Specially when it had also rejected the same at the time of the College being made the constituent unit wherein the petitioner was found as a surplus employee working against an unsanctioned post.
This Court, therefore, does not find any merit in this application and the same is, accordingly, dismissed.
Ranjan (Mihir Kumar Jha, J.)