Patna High Court
Chandrachur Poddar vs The T.M.Bhagalpur University And on 28 February, 2024
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11466 of 2010
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Chandrachur Poddar S/O Late Bhagwat Poddar MohallaP.O.- Bishanupur,
P.S.Distt.- Begusarai
... ... Petitioner/s
Versus
1. The T.M.Bhagalpur University
2. The Vice-Chancellor, T.M.Bhagalpur University, Bhagalpur
3. The Registrar, T.M.Bhagalpur University, Bhagalpur
4. The Finance Officer, T.M.Bhagalpur University, Bhagalpur
5. The Principal Koshi College, Khagaria, Distt.- Khagaria
6. The State of Bihar, Through The Principal Secretary, Human Resources
Development Department, Govt.
7. The Director, Department of Higher Education, Govt. of Bihar, New
Secretariat, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Purushottum Kumar Jha, Advocate
For the Respondent/s : Mr. Sudhir Kr. Upadhyay, AC to GP7
For the University : Mr. Ranjan Kr. Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 4.3.2024
1. Heard learned counsel for the petitioner and
learned counsel for the respondents.
2. The petitioner has filed the instant application for
the following relief/s:-
1.(i) Issuance of an order,
direction or an appropriate declaration that
the petitioner, who was initially appointed
on the deemed sanctioned post of Lab-In-
Charge in the Department of Botany, Koshi
College, Khagaria, is fully entitled for being
granted the benefit of absorption on the said
post w.e.f. the date of his initial appointment
i.e. 09.09.83 as has been done in the case of
Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024
2/12
the Class III and Class IV employees of the
K.S.S. College, Lakhisarai by the
Respondent University.
Or in alternative
Issuance of an order, direction or a writ in
the nature of mandamus commanding the
respondent University authorities concerned
to treat the petitioner as validly absorbed
Lab-In-Charge, Department of Botany in
Koshi College, Khagaria vide Office order
no. 159/2002 dated 4/7/2007 and
consequent upon such declaration the
respondents concerned may be suitably
directed to grant all consequential benefits
to the petitioner including the payment of
petitioner's arrears of salary claim.
ii) Issuance of an order, direction or an
appropriate declaration that the action of
the respondent University authorities
concerned in not treating the petitioner as
validly absorbed employee of the
College/University in question and their
subsequent action in not making the
payment of petitioner's salary is illegal,
arbitrary, mala fide, malicious,
discriminatory and unsustainable in the eye
of law tantamounting to the violation of
Article 14, 16, 21 and 23 of the Constitution
of India.
iii) Issuance of an order, direction or an
appropriate declaration that the action of
the respondent concerned in not including
the name of the petitioner in the subsequent
notifications including Notification no. 32 of
2003 dated 25/26.01.2003 is bad in law and
on facts both and is fit to be deprecated by
this Hon'ble Court in its strong words and
consequent upon such declaration the
respondents concerned may be suitably
Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024
3/12
directed to include the name of the
petitioner in all the subsequent notifications
which have been issued by the respondent
University appointing/absorbing the
services of the daily wagers of the
respondent university including several
persons junior to the petitioner and the
respondents concerned may further be
suitably directed to grant its all
consequential benefits to the petitioner.
iv)Issuance of an order, direction or a writ
in the nature of mandamus commanding the
respondents concerned to ensure the
payment of petitioner's current salary on
month to month basis.
v) For grant of any other relief or reliefs to
which the petitioner may be found entitled to
in the facts and circumstances of this case.
3. The case of the petitioner in brief is that he
belongs to the caste of baniya and falls under the category of
backward class. Having passed his graduation in the year 1977,
he was appointed as Lab Incharge on daily wages by the
Principal, Koshi College, Khagaria, a constituent unit of the
T.M. Bhagalpur University. He gave his joining and by order
dated 15.2.1984 of the Principal of the college, his services
were absorbed in the post of Lab Incharge. He started to get his
salary but the same was stopped with effect from September,
1985. It is further case of the petitioner that various letters dated
8.6.1987, 17.3.1992 and 22.7.1994 were written by the Principal of the college requesting that the service of the Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 4/12 petitioner be absorbed/regularized, however the University did not take any steps in the matter.
4. Learned counsel for the petitioner submits that the University came out with an advertisement in the daily newspaper on 18.10.2001 inviting applications from employees working on daily wages for their absorption/regular appointment on class III and class IV posts. The petitioner submitted his application and appeared in the written test and having passed the same he also appeared in the interview. The respondent- Registrar of the University came out with an office order dated 4.7.2002 absorbing/regularizing the services of 130 persons including the petitioner herein whose name figured at serial no. 126. The petitioner gave his joining and furnished his medical certificate. He began to discharge his duties. Regular work was being taken from the petitioner when the University came out with an office order dated 25/26.1.2003 superseding the earlier office order dated 4.7.2002 by which the service of 130 persons including that of the petitioner had been absorbed. In the order dated 25/26.1.2003 the name of the petitioner was missing. It is the case of the petitioner that he was restrained from marking his attendance but work was being taken. As such he filed representations and no action having been taken by the Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 5/12 respondents for the absorption/regularization of the petitioner who had put in service for 27 years, the petitioner filed the instant application for the reliefs prayed for as stated here-in- above.
5. Counter affidavits were filed on behalf of the respondent-University and the State of Bihar.
6. Learned counsel appearing for the respondent- University submitted that it is the petitioner's case that he was appointed as Lab Incharge in the college in question by the Principal of the college. However, the Principal had no authority to make appointment. Even otherwise there were four mandatory conditions for a valid appointment which were to the effect namely existence of a vacant sanctioned post, the authority making appointment be competent to make the appointment, the person being employed should hold the minimum qualification for the post that he is being appointed to and the due procedure i.e. advertisement, interview and selection by a duly constituted Selection Committee should have taken place. It was submitted that so far as the instant case is concerned, the alleged appointing authority not being competent, the petitioner was provisionally absorbed but his services were never approved nor confirmed by the University. Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 6/12 Having realized the mistake, a modified order was issued. It was further submitted that the University also sort guidelines from the Hon'ble Chancellor who passed an order dated 3.12.2005 directing the University to take appropriate steps for regularization of the services of daily wagers of class III and class IV against vacant sanctioned posts. It was directed that a list be prepared as per seniority complying with the reservation roaster. The petitioner not having acquired legal entitlement for absorption of his services, there was no merit in the application and the same be dismissed.
7. Learned counsel for the State referring to the counter affidavits filed on behalf of the State of Bihar as also the Director of Higher Education submitted that as per the petitioner's case, he was appointed as Lab Incharge in the department of Botany in the college in question on 9.9.1983 by the Principal of the college under staffing pattern. The petitioner was appointed purely on daily wages on a post which was never sanctioned by the State Government. Even otherwise the power of making appointment on class III and class IV posts vests in the Vice-Chancellor of the University and that too within the sanctioned strength. The Principal of the college was not competent to make any appointment nor does the Act enable the Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 7/12 Vice-Chancellor to delegate his powers. In fact the University by its letter dated 27.2.1982, 26.3.1982 and 30.7.1982 requested the Principal of the constituent colleges for not making appointment against unsanctioned post or even against sanctioned post without permission of the Vice-Chancellor as any such delegation made in the year 1977 was done away with by these letters much prior to the date when the petitioner was appointed. Learned counsel for the State relies on the Full Bench judgment of this Court in the case of Ram Sevak Yadav vs. State of Bihar & others [2013 (1) PLJR 964]. It is submitted that the University has taken a decision to absorb the service of 365 daily wage class III and IV employees who were found eligible in view of the advertisement and accordingly sent recommendation to the State Government in accordance with the roaster. The State Government by its letter dated 11.5.2006 approved the recommendation of the University and accordingly 365 daily wage employees were absorbed in regular service with effect from 5.6.2003 against sanctioned vacant posts. The petitioner also participated in the interview but was not found eligible. There is a delay of four years in filing of the instant writ application. It is submitted that there being no merit in the writ application, the same be dismissed. Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 8/12
8. Heard learned counsel for the petitioner and learned counsel for the respondents.
9. The relevant facts in brief are that as per the petitioner's case he was appointed on 9.9.1983 as a Lab Incharge on daily wage basis by the Principal of the college. On the respondent-University coming out with an advertisement in the hindi daily Hindustan on 18.10.2001 inviting applications from daily wage employees of class III and IV for their absorption/regular appointment, the petitioner submitted his application, appeared in the written test and also the interview and his name figured amongst the 130 successful candidates in the order dated 4.7.2002 of the University. The University having realized some mistake in tabulating the marks obtained by the candidates, the error was corrected and superseding the earlier order dated 4.7.2002 of regularization of 130 persons, the University came out with a corrected order dated 25/26.1.2003 containing the names of 206 candidates. The name of the petitioner did not figure in this list. It also transpires that on the University seeking directions of the Hon'ble Chancellor, the University was directed to take appropriate steps for regularization of the service of all the daily wagers whether class III or class IV against vacant sanctioned Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 9/12 posts in compliance of the order of the High Court passed in CWJC no. 11854 of 1999, to prepare a list strictly as per seniority, comply with the reservation roaster and send the recommendation to the Secretary, Higher Education, Government of Bihar who was to pass appropriate orders relating to approval of services of such employees.
10. The petitioner's name not having figured amongst the 206 candidates who were regularized pursuant to the order dated 25/26.1.2003 of the University was not challenged by the petitioner for more than 7 years till the filing of the instant application in the year 2010.
11. It would also be relevant to note that it has been the specific contentions raised on behalf of State of Bihar that section 35 of the Bihar State University Act provides that after commencement of the Act, teaching or non-teaching posts involving financial liability shall not be created without prior approval of the State Government. The petitioner who was appointed by the Principal of the college was never appointed against a post sanctioned by the State Government. In any view of the matter the Principal of the college was not competent to make any appointment on class III and class IV posts. Reference was also made that vide letters dated 26.3.1982, Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 10/12 27.7.1982 and 30.7.1982 the University had requested the Principal of the constituent colleges for not making any appointment even against sanctioned post without permission of the Vice-Chancellor as such delegation made in the year 1977 had already been done away with.
12. At this stage it would be relevant to take note of the decision of Full Bench of this Court in the case of Ram Sevak Yadav vs. State of Bihar & others [2013 (1) PLJR 964], paragraph no. 43 of which is extracted hereinbelow for ready reference:-
"43. We therefore sum up our conclusions and answer the reference as follows:-
A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;
B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances.
C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 11/12 D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders."
13. Having heard learned counsel for the parties and having perused the material on record, this Court finds that the case of the petitioner is that he has been appointed by the Principal of the college on daily wage. From the materials available on record it is also not in dispute that the appointment has been made without any open competitive selection by the Principal of the college who in any case was not competent to make such appointment. Though it is contended by the learned counsel for the petitioner that he was appointed on 9.9.1983 and continued to work as such, the said contention is not substantiated from the pleadings and the writ application itself when the petitioner contends that the payment of his daily wages was stopped as far back as in August, 1985 itself. Thus from the facts stated hereinabove, the Court finds that none of the essential conditions as spelt out in the case of Ram Shevak Yadav (supra) and extracted hereinabove has been met by the petitioner.
14. The petitioner has not made out any case for regularization of his service or for grant other reliefs as prayed Patna High Court CWJC No.11466 of 2010 dt. 4.3.2024 12/12 for in the instant writ application.
15. The Court finds no merit in the writ application and the same is dismissed.
(Partha Sarthy, J) Harsh/-
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