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1994 DIGILAW 134 (PAT)

Bidya Nand Singh v. State of Bihar

1994-03-23

I.P.SINGH, S.B.SINHA

body1994
JUDGMENT S. B. Sinha, J In this application the petitioners have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to regularise their services and to pay unto them all arrears of salary since 29.7.1982. 2. The petitioner Nos. 1 to 23 were appointed in Class-III posts in kabir Moti Darshan College, Parbatta, Khagaria under Bhagalpur University (hereinafter referred to as the said 'College') and petitioner Nos. 24 to 44 were appointed as 4th grade employees therein. 3. The said appointments were purported to have been made pursuant to an advertisement issued in a Newspaper "Janshakti" on 22.1.1981. 4. The said college became a constituent unit of Bhagalpur University on 29.7.1982. According to the petitioners, an agreement was entered into by and betweel the State of Bihar and Bihar State University and College Employees Federation, pursuant where of allegedly by State Government and agreed to absorb the employees appointed on the basis of staffing pattern 5. It is admitted that the posts held by the petitioners were not sanctioned; in respect whereof the Registrar, Bhagalpur University reminded the Director (Higher Education) for early creation of the posts for the said college. 6. It is further the contention of the petitioners that the State Government thereafter adopted a resolution on 10.5.1991 where by and where under it was agreed to absorb the employees who were appointed prior to 10.5.1986. However, despite the same the services of the petitioners were not regularised. 7. Our attention has been drawn to the statements made in the writ application as also Annexure-11 series for the purpose of showing that the services of many other persons have been regularised and thus allegedly discrimination has been made by the Vice-Chancellor, Bhagalpur University. 8. The contention of the University, on the other hand, is that the Governing body of the said college appointed several persons after the State Government declared its intimation to convert the said college into a constituent unit of Bhagalpur University upon its taking over by the State Government. 9. It has been stated that the screening Committee found the appointment of the petitioners to be invalid. It has further been submitted that the staffing pattern does not have the force of law and it is merely a proposal submitted by the University to the State Government. 9. It has been stated that the screening Committee found the appointment of the petitioners to be invalid. It has further been submitted that the staffing pattern does not have the force of law and it is merely a proposal submitted by the University to the State Government. It was further stated that in terms of Section 35 of the Bihar State Universities Act, 1976 neither the posts were sanctioned nor the sanction of the State Government have been taken prior to appointment of the petitioners and thus the said purported appointments are nullities. According to the respondents, the question of regularisation of service of the petitioners does not arise. It has further been submitted that this writ application should be dismissed on the ground of delay and laches alone as the petitioners have approached this court after a delay of 13 years. 10. Mr. Singh, learned counsel appearing on behalf of the petitioners submitted that there is absolutely no reason as to why the State Government and the University would not give effect to their own policy decision and would not implement the agreement by and between the State Government and its Federation. 11. Mr. B.K. Jha, learned counsel appearing on behalf of the University, on the other hand, submitted that the appointments of the petitioners are nullities. 12. In this case, as noticed hereinbefore, the advertisement was allegedly published on 22.1.1981. It appears that almost all the petitioners were issued with offers of appointment in the Ist or the 2nd week of the February, 1991. Some of the appointments have been made in the year 1980. Evidentially the said appointments were not made on the basis of the said advertisement as in our opinion, the process of recruitment could not have been completed within such a short period. Further the respondents, in their counter affidavit, have categorically asserted that the names of the petitioners nos. 23 and 43 do not find place in the report of the Committee submitted on 26.7.1986. It has further been brought to our notice that in the advertisement 33 posts were said to have been vacant; whereas the petitioners who are 44 in numbers claim to have been appointed on the basis of the said advertisement. 12. 23 and 43 do not find place in the report of the Committee submitted on 26.7.1986. It has further been brought to our notice that in the advertisement 33 posts were said to have been vacant; whereas the petitioners who are 44 in numbers claim to have been appointed on the basis of the said advertisement. 12. It has further been stated in the counter-affidavit that the University had requested the State Government for sanction of posts on the basis of staffing pattern but no order in this regard has yet been issued. It has further been contended that the salary to some of the daily wage employees were directed to be paid by the University from the students fund of the college and not from its own fund. 13. Section 35 of the Bihar State Universities Act reads thus :- "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 a established, maintained or governed by the State Government; or (b) as established by a religious or linguistic minority; (i) shall, after the commencement of this Act, create any teaching or non-teaching post involving financial liability 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 of any 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 subsection (1), shall, after the commencement of this 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. 14. 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. 14. A bare perusal of the aforementioned provisions would indicate that the same contains two categories; (i) sanction of the post sanctioned by the State of Bihar and (ii) approval of appointment by the State of Bihar. 15. It is not disputed that the posts in which the petitioners were allegedly appointed were not sanctioned in terms of the aforesaid provisions of the Bihar Universities Act, 1976 nor appointment could be made without obtaining sanction for the post from the State Government. In Manoj Prasad ors Vs. Ranchi University and ors, reported in 1993 (3) B.L.J.R. page 893, a Division Bench of this Court has held :- "It is, therefore, obvious that these appointment were made in breach of the mandatory provisions of Section 35 of the Act. It is no one's case that the State of Bihar has at any stage, sanctioned the posts. Once it is held that the appointments were illegal and they stood terminated by separate orders issued in May, 1988, there is question of payment of wages to the petitioners. It is not disputed that from May, 1988 onwards till August, 1989, the petitioners were not paid their wages. From September, 1989 to January, 1991 the then Principal without and authority permitted them to work and paid them their wages despite the orders of termination of their services. That would not cloth the petitioners with a right to continue to receive wages from the College. The claim of wages is dependent upon the subsistence of employer-employee relationship. If the services of the petitioner stood terminated in May, 1988, and that order was never recalled set aside or stayed by any competent authority, the petitioners will not be justified in claiming wages because they ceased to be employees of the College. Their claim for wages has, therefore, no merit. We may only observe that this is not the solitary instance where such illegalities have been discovered. Their claim for wages has, therefore, no merit. We may only observe that this is not the solitary instance where such illegalities have been discovered. The education system in this State is in shambles and the whole system has come to a grinding halt for many reasons; one of them is that despite a ban imposed by law, the Principal of various colleges, and in some cases Governing Bodies, have been making illegal appointments against unsanction posts for ulterior considerations. The fund granted to the colleges by the University is based upon the sanctioned posts. When that amount is sought to be distributed amongst a larger number of employees, most of them with illegally appointed, it gives rise to resentment on the part of genuinely appointed teachers who are either not paid their salary in full, or do not receive any salary at all for several months. Any effort to deal with such illegal appointments gives rise to lawlessness, and the atmosphere in the Colleges is completely vitiated. Unless, the State and the University-Authorities take form action against such principal and the members of the Governing Body, the situation is not likely to improve." 16. The aforementioned view has been reiterated by another Division Bench of this Court in Gopi Krishna pathak & ors. Vrs. Ranchi University and ors. reported in 1993 (2) BLJR 897 . 17. From a perusal of the aforementioned decisions, it is evident that no appointment can be made by the University without fulfilling all the statutory conditions laid down under section 35 of the said Act and without following the procedures laid down by the statutes framed there under. 18. It is not in dispute that the statutes framed by the University do not contain any provisions for appointment by way of regularisation. 19. In this view of the matter the petitioners cannot be said to have derived any legal right to continue in services. 20. It is also not disputed that the statutes of the University do not contain any provision for regularisation of services. It is also not the case of the petitioners that prior to their appointments all the procedures laid down for appointment were followed by the governing body of the college or their appointments were approved by the University. 21. 20. It is also not disputed that the statutes of the University do not contain any provision for regularisation of services. It is also not the case of the petitioners that prior to their appointments all the procedures laid down for appointment were followed by the governing body of the college or their appointments were approved by the University. 21. The petitioners in view of gross delay and laches on their part have disentitled them selves from obtaining equitable relief from this case. 22. This application is disposed of with the aforementioned observations and direction. But in the facts and circumstance of the case, there will be no order as to costs. Indu Prabha Singh, J. I agree. Application dismissed.