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1998 DIGILAW 396 (PAT)

Devendra Prasad Roy v. State of Bihar

1998-05-15

NAGENDRA RAI

body1998
Order Both the writ applications relate to the same College i.e. Deo Chand College, Hajipur, and the points involved therein being the same they have been heard together and are being disposed of by this common order. 2. There are three petitioners in C.W.J.C. No. 8214 of 1997 and they have filed this writ application for regularisation of their services as well as for payment of their salary both current as well as arrears. Petitioner no. 1 claims to have been appointed as a Laboratory Technician in the Department of Physics, Deo Chand College, Hajipur (for short 'College') on 15.7.1982 and petitioners no.2 and 3 claim to have been appointed as Assistants in the said College on 30.7.1984 and 9.10.1985 respectively. 3. There is only one petitioner in C.W.J.C. No. 7880 of 1997 and he has filed this writ application for regularisation of his service on the post of Typist in the said College with effect from 1.3.1981 as well as for payment of his salary both current as well as arrear. 4. In 1968, the College in question was established and it was affiliated to the Bihar University, as it then was, in the year 1969 upto Pre and Degree Part I Arts and Science and later on it was granted affiliation upto Degree standard in the year 1979. The College was made constituent of the Bihar University (Bhim Rao Ambedkar Bihar University, Muzaffarpur) (hereinafter referred to as 'the University') with effect from 1.3.1981. It is stated that the staffing pattern with regard to the College in question has been fixed by the State Government vide Annexure 1 to C.WJ.C. No. 8214/97. It is asserted that the petitioners of C.WJ.C. No. 8214/97 were appointed by the Principal of the College on the dates and posts as mentioned above and since then they are working. So far as the sole petitioner of C.WJ.C. No. 7880/97 is concerned, it is asserted that he was appointed on 10.12.1980 by the Ad hoc Committee on the post of Steno Typist against the created post under the norms of staffing pattern in anticipation of the sanction by the University and the State Government, vide Annexure 1 and this appointment was made after advertisement and interview and, thereafter, he joined the post on 10.12.1980 and after the College was made constituent, his service was also taken over and since then he is working. It is stated that their cases for regularisation have been recommended by the Principal of the College and the matter was sent to the University, but no decision has been taken. They made representations to the University as well as the Chancellor, but their services have not been regularised. 5. The University has filed a counter-affidavit and has adopted the assertions made in the counter-affidavit filed in C.W.J.C. No. 3599 of 1994 and its stand is that the Principal of the College has informed that the petitioners were never working in the College and as such their names were not sent to the State Government for approval of their services. 6. Learned counsel for the petitioners submitted that the cases of the petitioners are covered by a Full Bench decision of this court in the case of Braj Kishore Singh & Ors. vs. State of Bihar, reported in 1997 (1) PLJR - 509 and as such direction should be issued to the respondents for regularisation of their services, whereas, learned counsel for the University submitted that the cases of the petitioners are not covered by the aforesaid decision of the Full Bench and also stated that only on the ground that the petitioners have been working in the College for a long period, their services could not be regularised. 7. Section 35 of the Bihar State Universities Act, 1976 (hereinafter referred to as 'the Act'), which is applicable in the cases of the petitioners, runs 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. (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 other benefit having financial implication to any person holding 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 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 sancjoned post of a teacher for a period dot exceeding six months, by a candidate possessing the prescribed qualification. (3) Any appointment or promotion made contrary to the provisions of this Act, or Statutes, Rules or Regulations made thereunder or made in irregular or unauthorised manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realised from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914." 8. Section 35 of the Act, as quoted above, inter-alia, provides that the creation of the post involving financial liabilities shall not be made without prior approval of the State Government after commencement of this Act. It further provides that no College other than the Colleges established, maintained or governed by the State Government or is established by a religious or linguistic minority after commencement of the Act shall appoint any person on any post without prior approval of the State Government. So, prior approval of the State Government is required before creation of the post involving the financial liabilities and also before appointment of any person on any post. The said provision is mandatory, If any appointment has been made in breach of the aforesaid provision, then no direction for regularisation can be given. So, prior approval of the State Government is required before creation of the post involving the financial liabilities and also before appointment of any person on any post. The said provision is mandatory, If any appointment has been made in breach of the aforesaid provision, then no direction for regularisation can be given. The question for consideration is as to whether the Full Bench of this court in the aforesaid case has issued direction for regularisation of the services of the persons similarly situated as asserted on behalf of the petitioners ? 9. To appreciate the point aforementioned, it is necessary to briefly state the facts leading to the decision in the aforesaid Full Bench case. Jagdam College, Chapra, was an affiliated College of the Bihar University and it became a constituent College in 1975. Prior to the College becoming constituent, sanctioned posts of Class III and Class IV employees were in existence. The University itself took steps by constituting a Selection Committee comprising of the Principal and three senior Professors for appointment against vacant Class III/IV posts. That step was taken in 1977 and an advertisement was published in 1978. Appointments were made, including the appellants before the Full Bench. The University approved the appointments and forwarded the same to the State Government for its approval. The appellants were being paid their salary. The State Government refused to approve their appointments on the ground that the appointments were beyond the staffing pattern. They filed a writ application and a learned Single Judge dismissed their writ application on the ground that the appointments were contrary to the provisions of Section 35 of the Act. Thereafter, a Letters Patent Appeal was filed and the same was referred to the Full Bench. The Full Bench, after considering the provision of Section 35 of the Act, held that once staffing pattern has been provided for the University and Colleges, then the posts will be deemed to have been created and once posts are available, it should be open to the competent authority to make appointments against those posts and that will be deemed to be appointment according to the staffing pattern. They cannot be said to be illegal for want of posts. They cannot be said to be illegal for want of posts. This court further held that once the staffing pattern has been approved, then no further approval with regard to creation of post is to be taken from the State Government under Section 35 of the Act. With regard to the question as to whether for appointment, prior approval is to be taken or not in terms of Section 35 of the Act, the Full Bench held that the relevant part of Section 35 of the Act requiring prior approval in the matter of appointment has to be read down to include "post facto approval", otherwise, provision may become unworkable and lead to anamolous situation. The object can be achieved even without insistence on "prior approval" in each and every case. In appropriate cases, appointments can be made subject to 'post facto' approval of the State Government after such scrutiny of the qualification and the recruitment process as may be necessary and appropriate. Such appointments made by the College/University authorities, should not be treated as final, they shall have legal effect and sanctity only after approval of the State Government. In paragraph no.22 of the said judgment, the Full Bench held as follows : - "22. The above discussion may be summed up in these words. By reason of the approval of the staffing pattern proposed by the Bihar Inter University Board, non-teaching class III and IV posts will be deemed to have been created with the prior approval of the State Government i.e. Sanctioned. Appointments can be made against these posts in accordance with the staffing pattern without seeking further approval regarding post(s). Merely on the ground that prior approval of the State Government was not obtained, the appointment cannot be said to be illegal. The College/University authorities are competent to make appointment of eligible and suitable persons against such posts. Ordinarily, this should be done with the prior approval of the State Government, in exceptional cases, in exigency of service or situation, provisional appointment can be made subject to approval of the State Government within the stipulated time frame. It is open to the State Government to examine the eligibility and suitability of even those who have already been appointed against the sanctioned posts as per 'the staffing pattern." 10. It is open to the State Government to examine the eligibility and suitability of even those who have already been appointed against the sanctioned posts as per 'the staffing pattern." 10. Thus, the law laid down by the Full Bench is that once the staffing pattern has been fixed, then that will amount to creation of the post and the appointment can be made in accordance with law on the said post in terms of the provision of the Act and the relevant rules. Ordinarily, prior approval of the State Government is to be taken before appointment. However, in exceptional cases, provisional appointment can be made subject to the approval of the State Government within stipulated time-frame. After laying down the law in paragraph 32, the Full Bench held that in ordinary course, the case of the appellants should have been referred to the State Government to consider the validity of appointments already made for the purpose of granting or refusing post facto approval, but having regard to the facts of that case, where the appellants had worked for more than 17 years, directed for regularisation of the services of the appellants against the posts falling within the staffing pattern as applicable to the College. 11. Thus. the aforesaid Full Bench decision is an authority on the two points decided in those appeals and it is not an authority that an employee having worked in a College for a particular period, even though he does not possess requisite qualification and his appointment has not been made by a competent authority by following the prescribed procedure, his services should be regularised. If this interpretation is to be given to the said Full Bench decision, then that will open a flood-gate for regularisation of the services of the persons, who are not eligible for appointment and who have not been appointed by a competent authority by following the procedure. It is not is dispute that there is a procedure for appointment of Class III and Class IV employees for constituent Colleges and qualifications have also been prescribed for that. If the persons are engaged and appointed de hors the rule, then in that case also no direction for regularisation can be given despite they continued in service for a longer period. In this connection, reference may be made to the case of E. Ramakrishnan Vs. If the persons are engaged and appointed de hors the rule, then in that case also no direction for regularisation can be given despite they continued in service for a longer period. In this connection, reference may be made to the case of E. Ramakrishnan Vs. State of Kerala, reported in (1996) 10 S.C.C. 565 , where in the Apex Court has held that if appointment has been made de hors the rule and the person so appointed continuous even for a longer period, fourteen years in that case, no direction for regularisation can be given by the High Court. 12. In the case of Ashwini Kumar & Ors. Vs. State of Bihar, reported in (1997)2 SCC-1, which went to the Apex Court from this State, the Apex Court held that when the initial entry is itself tainted in the sense that it was not made by a competent authority following the rules and regulations governing such entry and it is not made against an available sanctioned vacancy, then no direction for regularisation can be given. In paragraph 14 of the said judgment, it was held as follows: "In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies, which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the• institution, which employs them, a time may come in the service career of such employees, who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case, the initial entry must not be found to be totally illegal or a blatant disregard of all the established rules and regulations governing such recruitment. In any case back- door entry for filling up such vacancies have got to be strictly avoided. However, there would never arise occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would never survive for consideration." 13. Thus, in view of the settled law, there can be no regularisation when engagement or appointment has been made against a non-sanctioned post and non-existent post and has been made de hors the rules and regulations regarding qualification etc. governing entry into service or by an authority not competent to appoint. In case, a person is appointed against a post falling within the staffing pattern, in that case that will amount that the appointment has been made against a sanctioned post, but on that ground alone, service of such person cannot be regularised unless it is found that the entry itself is according to rule and regulations governing such entry or appointment has been made by a competent authority. It is also to be clarified that so far as the State Government or the competent appointing authority is concerned, it cannot order for regularisation of services in individual case without framing a scheme consistent with the settled law as stated above as well as keeping in view the reservation policy of the State (see The State of Haryana vs. Piara Singh & Ors., reported in A.I.R. 1992 S.C. 2130). 14. In the Full Bench case of Braj Kishore Singh (supra), this court having noticed that in that case, the selection committee was constituted by the University itself, the selections were made after advertisement and following the procedure prescribed for appointment, the University has approved the appointments and that the appointments were made within the staffing pattern by a competent authority by following the procedure of law, ordered for regularisation of the services of the appellants of that case and, thus, this court did not hold that in all cases the order of regularisation can be made if the post falls within the staffing pattern as has been submitted in these cases. 15. So far as the present cases are concerned, the assertion made on behalf of the petitioners that they were engaged against the posts falling within the staffing pattern has been controverted by the University. There is nothing on the record to show that they were appointed by competent authority by following rules. The counter-affidavit of the University is also not a detailed one and, thus, not throwing light. In that situation, I am of the view the cases of the petitioners have to be considered in the light of the observation made above by the Vice Chancellor of the University. If the Vice-Chancellor finds that the appointments of the petitioners fall within the staffing pattern, then one of the conditions will be treated to have been fulfilled. But still an enquiry has to be made with regard to other conditions as to whether the petitioners were engaged/appointed in accordance with the rules and regulations governing appointment of employees of a constituent College and whether their appointments were made by an authority competent to do so or not. But still an enquiry has to be made with regard to other conditions as to whether the petitioners were engaged/appointed in accordance with the rules and regulations governing appointment of employees of a constituent College and whether their appointments were made by an authority competent to do so or not. If it is found that the appointments of the petitioners are against the posts falling within the staffing pattern and that the same were made by a competent authority after following the rules and regulations governing such appointments, then the Vice-Chancellor will send their cases for approval to the State Government for post facto approval in terms of Section 35 of the Act as interpreted by this court in the aforesaid Full Bench and the State Government is directed to take a decision within six months therefrom. In case, he finds otherwise, then the petitioners should be communicated with a reasoned order. 16. In the result, both the writ applications are disposed of with the aforesaid observations/directions.