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2012 DIGILAW 1581 (PAT)

Ragini Kumari v. State Of Bihar

2012-11-26

RAVI RANJAN

body2012
ORDER 1. I have heard learned counsel for the petitioners and perused the records of the case. I have also perused the zerox copy of the report of a Committee of three Members constituted in compliance of the judgment dated 13.4.2007 passed in C.W.J.C. No.8887 of 2006 (Sunil Chandra Ray and others Vrs. The State of Bihar and others and analogous matters). 2. The factual matrix of the case emanating out of the writ petition stands enumerated as under. 3. The petitioners’ claim to have been duly appointed by the authority concerned after facing interview etc. on daily wages in Mahila College, Khagaul, a Constituent Unit under Magadh University since 1980. The details of their appointments as stated in paragraph-4 is reproduced as under : Sl. Name Date of Appointment Post (i) Smt.Ragini Kumari 06.01.1986 Lab-Incharge Home-Sc. (ii) Smt.Madhuri Kumari 06.01.1986 Lab-in-charge, Psychology (iii) Smt. Shakuntala Kumari 02.04.1986 Typist (iv) Smt. Nisha Kumari 10.06.1989 Shorter in Library 4. The petitioners, after about 20 years of rendering their services had earlier moved before this Court by filing a writ petition bearing C.W.J.C. No.8887 of 2006 for their regularization/absorption. The aforesaid writ application was heard along with several other analogous matters. All the matters were disposed of by a common judgment dated 13th of April, 2007, as contained in Annexure-1. It is apparent from the perusal of the aforesaid judgment that the Vice Chancellors of the concerned Universities were directed to constitute a Committee of three Members to examine the matter of appointment, absorption etc. of the petitioners and take a decision in light of the law laid down by the Constitution Bench of the Hon’ble Apex Court in Secretary State of Karnataka and others Vrs. Uma Devi and others, 2006(4) SCC1. it has been directed that if the incumbents are found entitled then they should be regularized on their respective posts, however, this shall be only a one time measure. The Magadh University vide its order dated 10.7.2007, as contained in Annexure-2, had taken a decision on the basis of the recommendation of the Three Member Committee constituted as aforesaid regularizing the services of eight non-teaching persons including the petitioners at their respective posts. It appears that Sl.Nos.1 to 5 have been regularized as Class-III whereas 6 to 8 have been regularized on the Class-IV posts. It appears that Sl.Nos.1 to 5 have been regularized as Class-III whereas 6 to 8 have been regularized on the Class-IV posts. It further appears that the pay bill of the aforesaid eight regularized persons for the month of August, 2009 (Annexure-3) was sent to the Magadh University by the Principal of the concerned College. However, it has been stated in the writ petition that for the reasons best known to the authorities, the petitioners are not getting their salary despite regularization whereas salary of one person, namely, Sri Harendra Prasad, Store Keeper who had been appointed after the petitioners, is being paid his salary regularly. 5. A counter affidavit and two supplementary counter affidavit have been filed on behalf of the respondent-State authorities. Similarly, two counter affidavits have been filed on behalf of the Magadh University. Magadh University has taken a stand that the recommendation of the Committee of Three Members constituted under the orders of this Court was placed before the Syndicate on 27.6.2009 and the Syndicate has recommended for regularization of the writ petitioners of C.W.J.C. No.8887 of 2006. Accordingly, the final order regularizing the petitioners and others was passed on 9.7.2009, which is reflected in the office order as contained in Annexure-2. The University has again taken a stand that it has written to the State for release of Rs.6,64,246/- vide letter no.BUD/681/10 dated 18.9.2010 for payment of the salary of the writ petitioners from 10.7.2009 (date of regularization) to 30.5.2010 and thereafter, for payment of currently salary on regular basis. 6. However, in the second counter affidavit, the University has brought a letter No.2881 dated 15th September, 2010 issued by the State Government addressed to the Registrar of the Magadh University giving a direction that the amount sanctioned has been calculated on the basis of the sanctioned posts or working posts, whichever is lesser and it was expected from the University to proceed for termination of services of such persons who have not been appointed on sanctioned posts or whose services have not been regularized on the basis of any order of the Court. It is submitted that in above view of the matter, the petitioners’ salary is not being paid as the necessary fund is not being released. 7. It is submitted that in above view of the matter, the petitioners’ salary is not being paid as the necessary fund is not being released. 7. However, at the time of hearing, it is submitted on behalf of the petitioners that out of eight persons in Annexure-2, current salary of one Sl.Nos.1, 2 and 3 and 6 and 8 are being paid. The State in its counter affidavit filed on 26.7.2011 has stated that under the service statute of the University all the powers with regard to grant of leave, termination of service, suspension, resignation, dismissal, superannuation, disciplinary actions, fixation and regulation of pay has been vested with the University. The Government only releases the grants-in-aid to the University for payment of salary to its employees, who are legally and validly working against sanctioned posts. In the subsequent supplementary counter affidavit, a stand has been taken that the petitioners’ services have not been regularized against the sanctioned posts as there are only six sanctioned posts whereas nine persons have been shown to be working. However, vide Annexure-2, it is evident that eight persons have been regularized by the University. Thus, a stand has been taken that the persons appointed beyond the sanctioned posts cannot claim their salary and first time a stand has been taken that the petitioners have not been regularized in terms of the judgment passed in C.W.J.C. No.8887 of 2006. This stand was not taken by the State respondent in the earlier counter affidavit. In the earlier counter affidavit it has only been stated in paragraph-7 that the services of the petitioners have been alleged to have been regularized by the University since 9.7.2009. So, the clear stand of the State, as emanates from the averments made in the counter affidavits, is that at least two persons out of eight are not liable for regularization as there are only six sanctioned posts. It is not clear from the averments made in the counter affidavit filed on behalf of the State as to who are those persons, who should not have been regularized. 8. Learned counsel appearing for the petitioners has submitted on the basis of rejoinder-cum-supplementary affidavit filed on behalf of the petitioners that regularization of the petitioners have been done as per the staffing pattern which shows that there are nine non-teaching staff working in the class and the petitioners are well within such nine posts. 8. Learned counsel appearing for the petitioners has submitted on the basis of rejoinder-cum-supplementary affidavit filed on behalf of the petitioners that regularization of the petitioners have been done as per the staffing pattern which shows that there are nine non-teaching staff working in the class and the petitioners are well within such nine posts. Learned counsel has placed reliance upon a decision rendered by a Full Bench of this Court in Braj Kishore Singh and others Vrs. The State of Bihar and others reported in 1997(1)PLJR509 to impress upon this Court that the posts which are available as working posts under staffing pattern would be deemed to have been sanctioned. Thus, while considering the case of the petitioners, the Committee has rightly considered the posts under staffing pattern to be deemed sanctioned posts and, therefore, the petitioners would be entitled for their salary since the date of their regularization. 9. Mr. Amarnath Singh, learned counsel for the Magadh University has submitted that the petitioners and others have been regularized in view of the decision of syndicate which has been taken on the basis of the recommendation of the Committee of the Three Members constituted as per the order of this Court passed in C.W.J.C. No.8887 of 2006. A xerox copy of the report has been produced by the learned counsel. It appears from the report that the petitioners were holding requisite qualifications at the time of their appointment against the posts as available as per staffing pattern and there had been recommendation to the State Government for sanction and approval vide letter No.R/123 dated 15.2.1989 itself. It is also stated in the report that the most of the petitioners and other persons have completed their services for more than ten years and some of them of even more than 25 years. The appointment of the petitioners has been found to be irregular in view of the selection not having been made strictly in accordance with the procedure and, thus, in view of the decision of the Hon’ble Apex Court in Uma Devi (Supra), the services of such irregular appointed daily wagers who have been working for more than ten years (petitioners obviously working for more than 20 years having been appointed in the year 1986), has been recommended for regularization. It has also been noticed in the report that the appointment of the daily wagers fulfils the policy of reservation. 10. Per contra learned counsel for the State has pleaded that the persons who have not been appointed on the sanctioned posts are not entitled for regularization and thus wages. 11. However, in my considered opinion, while making these submissions taking such stand in the counter affidavit, the State authorities have forgotten the mandate of law laid down by the Full Bench in Braj Kishore Singh & others (Supra). The Full Bench of this Court, while considering the issue of appointment on the post of Class-III/IV employees of a Constituent College of University, has considered the sweep and ambit of Section 35 of the Bihar Universities Act and the earlier decisions of the authorities including the State Government regarding the creation of posts under staffing pattern and has come to the conclusion that in case, has observed that if no appointment can be made by the College or University under the Universities Act or the statutes framed there under without prior approval of the State Government then this may to lead an absurd situation and has held that by reasons of the approval of the staffing pattern proposed by the Bihar Inter University Board, non-teaching classes-III and IV posts would be deemed to have been created with the prior approval of the State Government i.e. sanctioned. The Full Bench has further observed that though in the ordinary course, in view of the conclusion that it would be open to the State Government to consider the validity of the appointments for the purpose of granting or refusing posts, the Court would have considered asking the State Government to look at the claims of appellants afresh, however, having regard to the fact that the concerned persons have continued in service for more than 17 years, it would exercise its discretion by refraining from giving any direction for reopening the matter after such a long lapse of time. 12. The State Government in its second supplementary counter affidavit has stated in paragraph-8 that the deponent is not in a position to ascertain that the petitioners were appointed under the posts out of staffing pattern. 12. The State Government in its second supplementary counter affidavit has stated in paragraph-8 that the deponent is not in a position to ascertain that the petitioners were appointed under the posts out of staffing pattern. It has further been stated that for absorption under staffing pattern, new posts are to be created after granting post facto approval on the requisition made by the University in the prescribed format. It has also stated in same paragraph that as per the judgment passed in C.W.J.C. No.8887 of 2006, the University was required to consider the cases of regularization/absorption of only of those persons who were duly qualified to be appointed on non-teaching posts and whose appointments were regularly made against duly sanctioned vacant posts. However, from the report of the Committee it is clear that the petitioners were holding requisite qualifications at the time of their appointment. No evidence has been brought on record by the State Government though indulgence was granted on 5.10.2012 and then again on 15.10.2012, to show that the petitioners were not holding any requisite qualifications or have not been appointed on the posts under staffing pattern. The report of the Committee as well as Annexure-4 series clearly indicate that the posts were available under staffing pattern as recommended by the University to the State Government seeking approval/sanction vide letter no.R/123 dated 15.2.1989 itself. The State authorities, without going through the report of the Committee and without going through the letter sent by the University in the year 1989 itself and without stating as to what action was taken on the aforesaid letter for approval of the posts under staffing pattern, has created doubt regarding their appointment under staffing pattern without having any evidence in hand. It appears that they are making a denial only for the sake of denial. 13. The Full Bench of this Court in Braj Kishore Singh and others (Supra) has clearly laid down in paragraph-22 that by the reason of the approval of the system of the staffing pattern proposed by the Bihar University Board, the non-teaching Class-III and Class-IV posts under staffing pattern would be deemed to have been created with the prior approval of the State Government, i.e., sanction. 14. 14. In above view of the matter, I am constrained to hold that there is no basis upon which the State Government now can deny release of fund for payment of salary in favour of the petitioners whose services have been recommended for regularization by the Three Member Committee constituted under the judgment of this Court rendered in C.W.J.C. No.8887 of 2006, in which the State Authorities were also parties, after holding that their respective posts were available under staffing pattern and requisition for its approval was already sent to the State Government in the year 1989 itself and specially when the petitioners have now completed more than 20 years of their services. Therefore, in my considered opinion, the stand taken by the State that since the posts were not sanctioned, some of the petitioners should not have been regularized, would not be tenable in view of the fact that their services would be deemed to have been sanctioned under staffing pattern in view of the law laid down by Full Bench of Braj Kishore Singh and others (Supra). Their posts should have been considered by the State Government as deemed sanctioned posts specially when no decision could be taken by the State Authority upon the requisition for approval having been sent in the year 1989 itself and order for their regularization should have been passed in view of the law laid down by the Apex Court in State of Karnataka & others Vrs. M.L. Kesari & others, 2010(9) SCC 247 . That apart, after completion of the aforesaid exercise by the Committee and thereafter, the University, and in view of the clear cut stand of the State Government in its counter affidavit that such matters are to be dealt with by the University authorities only, it would not be proper for me to again direct the State authorities to make a probe regarding the concerned posts as no evidence has been produced before me or no cogent reason has been shown by the learned counsel for the State as to why the finding of the Committee, that the posts were available under staffing pattern, should not be believed. 15. 15. Thus, the State authorities are directed to release necessary fund for payment of the salary to the petitioners from the date of their regularization within one month from the date of receipt/production/communication of this order considering them to be on deemed sanctioned posts. However, in the peculiar facts and circumstances of this case, I am not giving any direction for grant of interest on the unpaid amount. The University would pay the arrears and current salary to the petitioners (who are not already being paid their salary) within four weeks from the date of receiving of such fund released by the State. However, in case, the amount is not paid within the aforesaid time frame, then the petitioners would be entitled for simple interest at the rate of 12% per annum to be calculated from the date the amount became due till the date of its final payment. 16. Accordingly, this writ petition stands allowed.