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2012 DIGILAW 644 (PAT)

Subodh Kumar Singh v. State Of Bihar

2012-04-19

AJAY KUMAR TRIPATHI

body2012
ORAL ORDER Annexure - 30 is the order, which has now been passed by the University-Authorities, namely, Registrar on the basis of earlier direction issued in C.W.J.C. No. 16969 of 2006 and the consequential Contempt Application filed thereto, which was registered as M.J.C. No. 20 of 2008. The issue is regularization of the service of the two petitioners on a Class-III post in what is known as RDS College, Muzaffarpur, which is said to be a constituent college under B. R. Ambedkar Bihar University, Muzaffarpur. 2. Based on the direction of the High Court issued in the earlier Writ Application, the University constituted a Three-Men-Committee to examine the cases of all such persons whose claim for regularization was brought before the High Court. The Committee, so constituted, heard the various authorities and parties and submitted a report to the University, a copy whereof has been annexed as Annexure – 26. The Committee had laid down certain parameters, which was required to be fulfilled by all the candidates before their claim or case for regularization could be considered. Some of these parameters were that (i) persons must have been appointed against sanctioned post (ii) persons must posses requisite qualification for the post at the time of their initial appointment (iii) persons were appointed by the competent authority, which is general body in the case of affiliated colleges and University in case of constituent college (iv) appointed after following appointment procedure of recruitment, i.e., interview, etc. by a properly constituted selection committee; and (v) persons, so appointed, continued regularly in service, evidenced by attendance, payment or any other modality to the satisfaction of the Committee. 3. Claim of these petitioners with regard to the college in question was placed under category – C. After much deliberation and effort, recommendation in favour of the two petitioners according the counsel of the petitioners was made in terms of Annexure – 27. So far as these two petitioners are concerned, the chart, kept at page 89, shows that the petitioners had been engaged as Clerks by the Principal of the College under certain exigencies of service then, which would be evident from perusal of the appointment letter contained in Annexure- 1 and 2. So far as these two petitioners are concerned, the chart, kept at page 89, shows that the petitioners had been engaged as Clerks by the Principal of the College under certain exigencies of service then, which would be evident from perusal of the appointment letter contained in Annexure- 1 and 2. With regard to the availability of the post, the finding of the Committee is that now there are three vacant posts available of Class-III category due to superannuation of certain employees and, therefore, their claim could be considered for regularization against those vacant posts by the University. 4. This is one of the best pieces of evidence, which petitioners’ counsel has pressed into service as a right for regularization. There is supposed to be regular attendance and regular appointments also in favour of the petitioners. 5. The findings and the materials, so produced, were examined by the University before passing the impugned order, contained in Annexure – 30. The finding given is that there were only 10 sanctioned posts available for Assistants or Account Clerks and there are no vacancies in the LDC Cadre as on date. Claim of the petitioners is based on the vacancies which had occurred in the College from time to time due to superannuation. However, such a claim has not been accepted or acted upon by the University in the circumstances that the petitioners were appointed as daily-wager due to some strike going on in the University and the College was in need of hands. The Principal is not the Appointing Authority on a Class-III post in a College, even against sanctioned vacancies, as per the provisions of section 10 (12) of the Bihar University Act, 1976. So far as the working is concerned, that is not disputed, but payment has been shown to have been made from the internal resources of the College and not by the University or the State in any manner. There is no evidence of any advertisement or interview, conducted by any Committee and, therefore, claim for regularization of these petitioners on the post of LDC or Routine Clerk cannot be accepted or recommended. 6. These findings of the University in the order of the Registrar seem to be corroborated even by the evidence brought by the petitioner on record. There is no evidence of any advertisement or interview, conducted by any Committee and, therefore, claim for regularization of these petitioners on the post of LDC or Routine Clerk cannot be accepted or recommended. 6. These findings of the University in the order of the Registrar seem to be corroborated even by the evidence brought by the petitioner on record. Merely, because the petitioners have worked for a long period of time on engagement made by the Principal, this Court does not understand as to how his conduct will bind the University or create an obligation upon the University or the State Government which finally ends up releasing funds for payment, as none of these institutions have any source of funding of their own for payment. If the procedure with regard to their daily-wage engagement has not been followed and that the petitioners’ best piece of claim is based on the recommendation of the Committee, which is based on a broad compassionate view, has recommended their accommodation on the basis of vacancies created due to superannuation and not fulfillment of the parameters laid down by them. Still the said recommendation cannot be acted upon or pressed into service in favour of the petitioners, especially since the parameters which the Committee had laid down for consideration of such claims is not fulfilled by these petitioners in any manner. 7. The continuance of the petitioners in the College on the basis of their engagement by the Principal is not the issue on which this Court has any objection, if the College in question continues with their service, but when it comes down to interference with the impugned order, contained in Annexure – 30 or a direction upon the University to treat them as an employee of the University it is a tall order which cannot be made in the background which had been taken note of in the earlier part of the order and the findings given in the impugned order. 8. The Writ Application has no merit as the findings given in Annexure- 30 are based on actual state of affairs.