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2004 DIGILAW 1278 (PAT)

Balmiki Prasad Singh v. State of Bihar

2004-12-22

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JUDGMENT C.K. PRASAD, J.:- This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 6.9.1999 (Annexure-17) whereby the prayer made by the petitioner for regularisation in service has been rejected. 2. The case has a chequred history. Petitioner claims to have been appointed by the Governing Body of the Karya Nand Sharma Smarak College, Lakhisarai to the post of Laboratory Assistant by order dated 27.1.1975. Class III and Class IV employees including the petitioner of the said College filed writ application before this Court for issuance of a writ in the nature of mandamus commanding the respondent Tilka Manjhi Bhagalpur University to regularise their services and make payment of arrears of salary as well as current salary. Said writ application was registered as C.W.J.C. No. 5147 of 1993 (Raj Ballabh Prasad Singh and Ors Vs. The State of Bihar & Ors) and this Court by order dated 19.4.1995, disposed of the writ application directing the State Government to consider the grievance of the petitioners and while doing so, to take into account the request made by the Tilka Manjhi Bhagalpur University, hereinafter referred to as the University, for creation of the posts under staffing pattern. In the light of the aforesaid order, the State Government examined the matter and observed that the benefit of regularisation to the non-teaching employees is to be given to only those employees who were appointed prior to 10.5.1986 legally in accordance with law. Finding that the appointments of the petitioners were illegal by order dated 20th of June, 1995, rejected the claim made by them for regularisation of their service. 3. The Principal of the College, by letter dated 10.7.1996 (Annexure-15) wrote to the Vice Chancellor of the University that the petitioners are working as non-teaching employees and as such, their names be includerd amongst the list of such employees who were appointed prior to 10.5.1986 and accordingly, salary be paid to them. 4. 3. The Principal of the College, by letter dated 10.7.1996 (Annexure-15) wrote to the Vice Chancellor of the University that the petitioners are working as non-teaching employees and as such, their names be includerd amongst the list of such employees who were appointed prior to 10.5.1986 and accordingly, salary be paid to them. 4. It seems that Bhagalpur National College Shikshaketar Karamchari Sangh & Ors filed C.W.J.C. No. 7814 of 1987 before this court for regularisation of the services of the non-teaching employees of the university and this court, by order dated 1.10.1997 (Annexure-14), disposed of the writ application with the following direction: "It is needless to say that if any one or other non-teaching employee was appointed within a post deemed to be created in terms and of staffing pattern, then the respondent University will consider the case of such non-teaching employee for regularisation." 5. It is relevant here to state that the petitioners filed C.W.J.C. No. 163 of 1998 (Yogendra Prasad Shukla Vs. The State of Bihar & ors) before this Court for regularisation of their services and for quashing the order dated 20th of June 1995 (Annexure-12) whereby the State Government declined to regularise their services on the ground that their initial appointments were not made by following the procedure and constituting a Selection Committee. This Court found that the State Government had passed the order without giving opportunity to the petitioners and accordingly by order dated 17.3.1999 (Annexure-16), disposed of the writ application by remitting the matter back to the State Government for passing fresh order after giving opportunity to the petitioners. While doing so, it observed as follows: "In the facts and circumstances of the case this court remits this matter back to the same authorities for consideration. The authority is directed to give due opportunity of hearing to the petitioners for pressing their case before the authority and to justify the legality of their initial appointment and to show that they were made after complying with provisions of Articles 14 and 16 of the Constitution of India." 6. In the light of the aforesaid order, the State Government, by the impugned order, considered the case of the petitioners and finding that their appointments were made without following the procedure contemplated under Articles 14 and 16 of the Constitution of India, rejected their prayer for regularisation. In the light of the aforesaid order, the State Government, by the impugned order, considered the case of the petitioners and finding that their appointments were made without following the procedure contemplated under Articles 14 and 16 of the Constitution of India, rejected their prayer for regularisation. The reasons assigned to come to the aforesaid conclusion were, that the proceeding book of the Managing Committee does not show that the petitioners were formally appointed, the Committee constituted by the University had found their claims to be suspicious and the list sent by the University for regularisation of services of the employees on the post admissible according to staffing pattern did not contain the names of the petitioners. Petitioners claim to have been appointed in the years 1977 to 1979 on the basis of the purported notice published in the Newspaper in the year 1980, was found untrustworthy. It also observed that in the advertisement the number of posts have not been mentioned and there is nothing on the record to show that any Selection Committee was constituted or interview held. The State Government further found contradiction in the claim of the petitioners. The cumulative effect of the aforesaid infirmities found by the State Government led it to conclude that the petitioners were not appointed following the mandate of Articles 14 and 16 of the Constitution of India. 7. Mr. Rajendra Prasad Singh, Senior Advocate, appearing on behalf of the petitioners, submits that the petitioner had been appointed against the post within the framework of the staffing pattern/and as such their services are fit to be regularised. In support of his submission, he has placed reliance on a Full Bench decision of this Court in the case of Braj Kishore Singh & Ors. Vs. The State of Bihar & Ors.) 1997 (1) PLJR 509 and my attention has been drawn to para-30 of the said judgment which reads as follows: "30.- In view of my interpretation of Section 35 of the Act and conclusion that the staffing pattern has already been laid down which amounts to creation of posts, the abovesaid decisions cannot be said to be correct in law. The Supreme Court rejected the S.L.Ps summarily and these orders cannot be understood as upholding the judgments/orders on merit. The Supreme Court rejected the S.L.Ps summarily and these orders cannot be understood as upholding the judgments/orders on merit. If the appointments are made against posts as per the staffing pattern i.e. within the sanctioned strength, they cannot be said to be violative of Section 35 of the Act and illegal on the ground that the posts have not been sanctioned by the State Government provided, of course, the candidates possess the eligibility and suitability and the selection/appointment process was in conformity with the Articles 14 and 16 of the Constitution of India. 8. Mr. Shashi Bhushan Kumar, Junior Counsel to SC-VII appearing on behalf of the State and Mr. Anil Singh, appearing on behalf of the respondent University, very fairly state that in view of the pronoucement of this Court, in the case of Braj Kishore Singh (supra), the posts within the staffing pattern shall be deemed to have been created but services of only those employees, whose appointments have been made in conformity with Articles 14 and 16 of the Constitution of India, can only be regularised. They point out that the Full Bench of this Court in the case of Braj Kishore Singh (supra) had said so in clear words and observed that the persons appointed against the post as per staffing pattern, shall not be illegal only on the ground that the posts have not been sanctioned by the State Government under Section 35 of the Bihar State University Act, provided the appointees possess the eligibility and suitability and the selection/appointment process was in conformity with Articles 14 and 16 of the Constitution of India. They point out that a Division Bench of this Court had the occasion to consider this question in the case of Ranjeet Kumar Singh & ors. Vs. The State of Bihar & Ors) 2000 (4) PLJR 567 and held that the persons appointed in violation of the provisions of the Articles 14 and 16 of the Constitution of India have no right of regularisation. My attention has been drawn to para-4 of the said judgment which reads as follows: "4. The State has also filed a counter affidavit stating that the appointments of the appellants were in violation of the provisions of Articles 14 and 16 of the Constitution of India. My attention has been drawn to para-4 of the said judgment which reads as follows: "4. The State has also filed a counter affidavit stating that the appointments of the appellants were in violation of the provisions of Articles 14 and 16 of the Constitution of India. The appointments were made in the month of February, 1978, when the Bihar State Universities Act, 1976, (hereinafter referred to as 'the Act') had already come into. force and their appointments are in clear breach of provisions contained in section 35 of the Act, which provides that no post for appointment shall be created without the prior sanction of the State Government and no College will appoint any person on any post without the prior approval of the State Government. Thus, their appointments are void ab initio." 9. Having considered the rival submission, I do not find any difficulty in accepting the broad submission that the appointment made as per the staffing pattern shall not be illegal only on account of breach of section 35 of the Bihar State Universities Act, provided the person appointed is such person is eligible, suitable and appointed following the process in conformity with Articles 14 and 16 of the Constitution of India. In fact, the answering respondents have not joined the issue on this question, but their plea is that the petitioners were not appointed in conformity with the requirement of Articles 14 and 16 of the Constitution of India and hence their services were not fit to be regularised. 10. Mr. Singh, then attempted to assail the said finding. It is relevant here to state that this Court remitted the matter back to the State Government to take decision on this question after giving opportunity to the petitioners. After giving such opportunity the State Government had come to the conclusion that the petitioner's appointments were not mad in conformity with the requirement of Articles 14 and 16 of the Constitution of India. For coming to the aforesaid conclusion, the State Government had assigned various reasons, which I have briefly narrated in the preceding paragraphs of this judgment. From a perusal of the impugned order, it is evident that the petitioners were not appointed in accordance with law. For coming to the aforesaid conclusion, the State Government had assigned various reasons, which I have briefly narrated in the preceding paragraphs of this judgment. From a perusal of the impugned order, it is evident that the petitioners were not appointed in accordance with law. The State Government was under a command to decide this question and it having decided the same, taking into consideration the relevant material and assigning good and valid reasons, same is not fit to be interfered with by this Court in exercise of its writ jurisdiction. 11. Mr. Singh lastly submits that the petitioners are working since long and as such, their service deserves to be regularised. Answering respondents, however, contend that in view of the order of this Court dated 17.3.1999 passed in C.W.J.C. No. 163 of 1998, the only issue which required determination was as to whether petitioners were appointed following the procedure laid down under Articles 14 and 16 of the Constitution of India and that issue having been answered against the petitioners, they are not entitled to any relief. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Pankaj Gupta and ors Vs. The State of J & K and ors) AIR 2004 SCW 5332: AIR 2004 (8) SCC 353 and my attention has been drawn to the following paragraph of the said judgment :- "6. No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right to regularisation in the service because of the erroneous procedure adopted by the authority concerned in appointing such persons.”xxx 12. I do not find any substance in this submission of Mr. Singh also. In the present case, the appointment of the petitioner has been found to be in breach of Articles 14 and 16 of the Constitution of India. This Court had directed for regularisation of the petitioners services only if their appointments were made in conformity with the requirement of Articles 14 and 16 of the Constitution of India. Singh also. In the present case, the appointment of the petitioner has been found to be in breach of Articles 14 and 16 of the Constitution of India. This Court had directed for regularisation of the petitioners services only if their appointments were made in conformity with the requirement of Articles 14 and 16 of the Constitution of India. The State Government has found their appointments to be not in conformity with that and having concurred with the said finding, there is no occasion for this Court to direct for regularization of the services of the petitioners. In my opinion, a person illegally appointed or appointed throwing all the procedure to wind, can not claim regularisation. The view which I have taken finds support from the decision of this Court in the case of Pankaj Gupta (supra). 13. To put the record straight, learned counsel representing the respondent University has stated that all the posts deemed to have been sanctioned under staffing pattern, have already been filled up and as such, no vacancy exists for regularising the services of the petitioners. As I have held that the petitioners have no right to be regularised, this fact even if true, has no bearing on the decision of the present case. 14. In the result, I do not find any merit in this application and it is dismissed accordingly but without any order as to cost.