Lakshmi Narayan Prasad And Ors vs The State Of Bihar And Ors
2023 Latest Caselaw 3775 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.2772 of 2017
     ======================================================

1. Lakshmi Narayan Prasad, Son of Shri Jhapshi Ram, Resident of Village-

Fatehpur, P.O.- Makrauta, P.S.- Hilsa, District- Nalanda.

2. Kedar Nath Prasad, Son of Late Jag Bahadur Prasad, Resident of Village-

Shiv Nagri, P.O.- Gurukul Maniyan, Police Station- Muffasil, District- Chapra.

3. Jagarnath Prasad, Son of Late Jotik Roy, Resident of Village- Mahbar Chapra, P.O.- Sabaiya, P.S.- Turkauliya, District- Motihari (East Champaran) Bihar.

4. Satan Roy, Son of Late Motichand Roy, Resident of Village- Gudri Bazar Chhawni, P.O.- Rajendra College, P.S.- Bhagwan Bazar, District- Chapra.

... ... Petitioners Versus

1. The State of Bihar, through the Principal Secretary, Education Department, Bihar, Patna.

2. Jai Prakash University, Chapra, through its Registrar.

3. The Vice- Chancellor, Jai Prakash University, Chapra.

4. The Registrar, Jai Prakash University, Chapra.

5. B.R.A. Bihar University, Muzaffarpur through its Registrar.

6. The Registrar, B.R.A. Bihar University, Muzaffarpur.

7. The Vice- Chancellor, B.R.A. Bihar University, Muzaffarpur.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Shubh Narain Singh, Advocate For the Respondent/s : Mr. Apurva Kumar, Advocate For the J.P. University : Mr. Amit Srivastava, Senior Advocate Mr. Ritesh Kumar, Advocate Mr. Girijesh Pandey, Advocate For the BRA University : Mr. Indrajesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 17-08-2023

This writ application has been filed for issuance of a

writ in the nature of Mandamus commanding the respondents to

pay arrears of salary to the petitioners for the period from March, Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

2010 to till date with interest and further current salary to them on

month to month basis.

Case of the Petitioners

2. It is the case of the petitioners that they were

appointed as Assistant Librarian and Assistant Peon respectively

on 13.02.1978, 01.01.1978, 08.04.1980 and 05.08.1983

respectively in Prithvichand Science College, Chapra, Ram Jaypal

Singh College, Chapra, P.C. College, Chapra and Rajendra

College, Chapra (hereinafter referred to as the respective Colleges)

against sanctioned posts and accordingly they joined and started

working except petitioner no. 2 who was appointed in Ram Jaipal

College, Chapra.

3. It is their case that the College, namely, Prithvichand

Science College was established in the year 1970 and on

17.02.1974 after the College was duly affiliated by the Bihar

University, Muzaffarpur, the governing body of the College

constituted in accordance with the provisions of the statute of the

University, in it's meeting dated 17.02.1974 created and

sanctioned various posts of teaching and non-teaching staffs of the

College. It is submitted that at the relevant time, there was no

requirement of any government approval for creating and Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

sanctioning of post for the affiliated Colleges managed by the

governing body.

4. It is stated that under the policy of the Government,

the management of the College was taken over on 28.02.1981 and

it became a constituent unit of the then Bihar University,

Muzaffarpur. At the time of taking over of the management of the

College, a list of teaching and non-teaching staffs was prepared in

which the name of the petitioners were mentioned. The petitioners

claimed that the Bihar University constituted a high power

Committee for scrutinizing the cases of non-teaching staffs in

various Colleges which were made constituent in 1981 and during

this scrutiny, the petitioners appeared before the Committee and

the Committee found that the petitioners were duly appointed by

the governing body. On 28.01.1985, the Committee of the College

sent a certificate to the University showing the name of the

petitioners along with others who were working in the College but

were not paid their salary due to paucity of fund.

5. The grievance of the petitioners is that despite several

requests made to the Government for regularization of the service

of the petitioners, their services were neither regularized nor they

are being paid their salary although they are working regularly in Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

the College as store-keeper and work was also being taken by the

respondent.

6. In course of hearing of the writ application, learned

counsel for the petitioners has relied upon the judgment of this

Court rendered in the case of Jai Prakash University, Chapra

and Ors. Vs. State of Bihar and Ors. in LPA No. 619 of 2018 to

submit that in the said case, the appointment of one Birendra

Kumar Mishra who was a non-teaching staff in the College was

subject matter of consideration. In the said case, a contention was

raised on behalf of the State that Birendra Kumar Mishra was not

appointed against sanctioned post in accordance with the

provisions of Section 35 of the Bihar Universities Act, 1976

(hereinafter referred to as the 'Act of 1976') but the said

contention was rejected by this Court on finding that he was

appointed against a post which was well within the approved

staffing pattern of the College. The Hon'ble Division Bench while

hearing the challenge to the judgment of the learned Single Judge

of this Court found that in his case, there was no dispute that the

appointment was within the staffing pattern as prescribed by the

State Government, the letter of appointment itself was issued by

the University and the University continued to treat him as a

demonstrator. The Hon'ble Division Bench also held that the Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

earlier judgment of this Court rendered in the case of Braj

Kishore Singh Vs. State of Bihar reported in 1997 (1) PLJR 509

and again in the case of Braj Kishore Singh Vs. State of Bihar

reported in 2004 (3) PLJR 668 would govern the case of the

petitioner-respondent.

7. Learned counsel for the petitioners submits that the

University had preferred a Special Leave to Appeal (C) No. 29162

of 2019 in the Hon'ble Supreme Court challenging the judgment

of the Hon'ble Division Bench in L.P.A. No. 619 of 2018 but the

same was dismissed in limine.

Stand of the University

8. Mr. Amit Srivastava, learned Senior Counsel assisted

by Mr. Ritesh Kumar, learned Advocate has appeared for the Jai

Prakash University (hereinafter referred to as the 'University') and

opposed this writ application. It is the stand of the University that

the University examined the validity of the appointment of the

petitioners and found that neither the post against whom the

petitioners claimed to be appointed were advertised by the

University under the provision of the Article 3 Clause 5 of the

University Statutes, contained in Governor's Secretariat Letter No.

BSU 36/80-5270GS(1) dated 18.11.1980 nor the State

Government has approved the creation of the post till date. Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

9. It is specifically stated in paragraph '7' of the counter

affidavit sworn by the Registrar of the University that no Selection

Committee was duly constituted, thus, for all these reasons the

appointment of the petitioners have been made contrary to the

provisions of Section 35 of the Act of 1976 even as the financial

liabilities rest upon the State Government. It is further stated that

the State Government has directed the Universities of the Bihar

vide letter dated 07th December, 2009 not to make payment of

salary to the employees from the enternal resources of the

University. A copy of the letter dated 07.12.2009 has been annexed

as Annexure 'R-1' to the counter affidavit.

10. It is pointed out that in the similar circumstances,

some of the Class III and IV employees of the Bhola Singh

College, Bhore, Gopalganj which is a constituent unit of the then

BRABU, Muzaffarpur had moved this Court in C.W.J.C. No. 8783

of 2001 for a direction to regularize their services on the ground

that pursuant to the decision of Syndicate dated 03.03.2012, the

then Vice Chancellor of the Jai Prakash University was pleased to

adjust the services of Class III and IV employees in different

Colleges under the University. It is stated that Petitioner No. 1 is at

Serial No. 1, Petitioner No. 2 is at Serial No. 6, Petitioner No. 3 is

at Serial No. 14 and the Petitioner No. 4 has been shown at Serial Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

No. 21 of the respective Colleges on the post of Lab Technician,

Assistant, Peon and orderly respectively. In C.W.J.C. No. 8783 of

2001, this Court after hearing the parties disposed of the writ

application vide order dated 25.06.2014 directing the Principal

Secretary of the Department of Education, Government of Bihar to

take a decision in this regard and pass a fresh order. Accordingly

the Principal Secretary, Education Department, Government of

Bihar considered and examined the claim of the petitioners in

terms of the order dated 25.06.2014 passed in C.W.J.C. No. 8783

of 2001 and passed a reasoned order rejecting the claim of the

petitioners vide Memo No. 15/C2-248/2015-2457 dated

23.12.2015. The specific case of the respondents is that the claim

of the present petitioners are identical to the case of the petitioners

in C.W.J.C. No. 8783 of 2001.

11. It is further stated that one Prabhu Nath Sah whose

name appeared at Serial No. 2 in the list of Prithvichand Science

College, Chappra had also filed C.W.J.C. No. 19337 of 2016 for

grant of retiral benefits and other reliefs. The learned Writ Court of

this Court was pleased to dismiss the writ application vide order

dated 17.02.2018 whereafter the Letters Patent Appeal bearing No.

368 of 2018 was preferred but the same was also dismissed, copy

of the order passed by the Hon'ble Division Bench in L.P.A. No. Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

368 of 2018 has been brought on record as Annexure 'R/4' to the

counter affidavit.

Reply of the Petitioners

12. In response to the submission of learned Senior

Counsel for the University, learned counsel for the petitioners has

drawn the attention of this Court towards Annexure '8' enclosed

with the rejoinder filed on behalf of the petitioners. It is submitted

that the appointment was made on 13.02.1978 as Assistant

Librarian by the Governing Body through an Advertisement made

in Weekly Newspaper namely, 'Jan Adalat'. Learned counsel

claims that the University Absorption Committee had after

verification submitted a report on 19.01.2010 to the University in

which name of the petitioners were shown working. He has

reiterated that his case would be covered by the judgment of this

Court in the case of Birendra Kumar Mishra and not by the

judgment in the case of Prabhu Nath Sah.

Consideration

13. Having heard learned counsel for the petitioners,

learned Senior Counsel for the respondent University and the

State, this Court finds that while learned counsel for the petitioners

in the present case is seeking the same benefit which has been

given to one Birendra Kumar Mishra who was respondent no. 3 in Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

L.P.A. No. 619 of 2018, the University is submitting that the case

of the petitioners are identical to the case of writ petitioners in

C.W.J.C. No. 8783 of 2001 disposed of vide order dated

25.06.2014 (Annexure 'R-2') and the judgment of this Court in

C.W.J.C. No. 19337 of 2016 (Prabhu Nath Sah Vs. State of

Bihar and Ors.).

14. In view of the contest with respect to the application

of judgments of this Court, this Court has noticed that the case of

Birendra Kumar Mishra (L.P.A. No. 619 of 2018) stands on a

completely differing footing. The facts of the said case are

distinguishable. In the said case, the Hon'ble Division Bench has

recorded a finding that the letter of appointment of the respondent-

petitioner was issued by the University itself and even though the

said letter itself indicates that the appointment is being made in

anticipation of a sanctioned post, at the same time, the University

was unable to dispute the position taken by the respondent-

petitioner that his appointment was within the staffing pattern as

prescribed by the State Government in the notification dated

17.08.1979. It is in these facts situation that the Hon'ble Division

Bench noticed that if the appointment has been made within the

sanctioned strength, as per judgments of the Hon'ble Full Benches

in the case of Braj Kishore Singh (Supra) and the Hon'ble Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

Division Bench of this Court in the case of Abdus Salam Vs.

State of Bihar and Ors. (LPA No. 981 of 2011 decided on

11.07.2011), if the post is being held by a person within the

staffing pattern, the same cannot be held to be a non-sanctioned

post. It had been held that the sanction will be deemed and

presumed to have been made if it is within the staffing pattern.

15. In the case of Birendra Kumar Mishra (supra), the

Hon'ble Division Bench was of the view that it was the appellant-

University who had itself allowed the induction of the respondent-

petitioner was now disputing his claim when it comes to monetary

benefit, therefore, the University would be estopped by it's own

conduct throughout in now disputing the claim of the respondent-

petitioner after he has discharged more than 33 years of service.

16. In fact, it was the same Hon'ble Division Bench who

had occasion to deal with the case of Prabhu Nath Sah (supra)

and it would appear that in the case of Prabhu Nath Sah (supra),

it was found that the petitioner was appointed on the post of Store

Keeper, he was wrongly shown as Lab Boy and his name was sent

to the University. There was no post of Store Keeper even

sanctioned by the Governing Body and five posts of Lab Boy was

only sanctioned, therefore, on his own averment, this Court

noticed that the writ petitioner was claiming that he was appointed Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

on the post of Store Keeper which was a post never sanctioned.

This Court held that even for coming under the scope of staffing

pattern, the post was required to be sanctioned by the then

Governing Body of the College and once the post on which the

petitioner claims to be appointed was never sanctioned, it has to be

held that his appointment was never on a post sanctioned within

the staffing pattern.

17. In case of Prabhu Nath Sah (supra), this Court also

noticed that the petitioner who was not getting his salary since the

year 1994, was approaching this Court only after huge delay and

laches. The claim of the petitioner was, thus, found not

sustainable.

18. This Court finds from the averments made in the

present writ application as well, that in paragraph '16' of the writ

application a statement has been made that the petitioner was

working regularly in the College as a store keeper. In fact, this writ

application has been filed by four petitioners and in the beginning

of the writ application, they claimed that the petitioners were

appointed as Assistant Librarian and Assistant Peon respectively

on different dates. Thus, there are conflicting statements of the

petitioners in the writ application.

Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

19. Learned Senior Counsel for the University has

drawn the attention of this Court towards the list prepared by the

University in the light of the report of the Committee under

Chairmanship of Dr. Maha Chandra Prasad Singh, the then

Member of Legislative Council and the adjustments made as per

decision of the Syndicate of the University against the sanctioned

vacant post. The list (Annexure '2' to the writ application) is dated

03.03.2012. In this list, it has been pointed out that the name of the

petitioner no. 1 has been shown against the post of Lab Technician

and his date of appointment has been shown as 13.02.1978. At

Serial No. 2 of the same list, the name of Prabhu Nath Sah (writ

petitioner in C.W.J.C. No. 19337 of 2016) has been shown. This

writ application has also been dismissed and the decision of the

Court has attained finality.

20. As regards the list prepared by the University, it is

submitted that pursuant to the decision of this Court in C.W.J.C.

No. 8387 of 2001, the Principal Secretary of the Education

Department, Government of Bihar has passed a reasoned order as

contained in Annexure 'R-3' to the counter affidavit of the

respondents. The Principal Secretary has considered the entire

materials on the record and finally taken a view in paragraph '13',

'14' and '15' as under:-

Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

"13. Åi;qZDr foHkkxh; funs"kksa ds vkyksd esa egkfo|ky; ds vaxhHkwfrdj.k ds le; fo"ofo|ky;] egkfo|ky; "kklh fudk;@iz/kkukpk;Z rFkk f"k{kd la?k ds izfrfuf/k ds lkFk gq, vaxzsth ,xzhesUV gLrk{kfjr esa vafdr fd;k x;k gS fd "That in persuance of the aforementioned promises and the agreement arrived at between the parties to this agreement, the parties agree, consent, promise and covenant that:- (1) The said college with all its sections and departments as on and from 1st November, 1980 be considered constituent college of the University of Bihar and be governed by the relevant Act, Statutes, Regulations, ordinance and Rules for the time being inforce governing such college. The University of Bihar as per terms and conditions contained in letter no. J/G1-0/08/77-ED- 882 dated 24th July, 1980 Appendix-1, of the Government of Bihar, Education Department has taken over the assets and liabilities of the college Sheodeni Ram Ayodhya Prasad College shown as per Annexure-B (in the proforma prescribed by the State Government in their letter No. J/G1-0/08/77- ED-882 dated 24th July, 1980 duly filled in and signed by the Principal and Secretary of the College), subject to further examination by the Auditors, the University Authorities and approval of the State Government." bl lanHkZ esa fo"ks'k :i ls mYys[kuh; gS fd fo"ofo|ky;] egkfo|ky; rFkk oknhx.kksa ds } kjk ,xzhesUV dh izfr ds lkFk&lkFk gLrk{kfjr izi= rks miyC/k djk;k x;k gS] ijUrq mlds lkFk f"k{kdsrj dfeZ;ksa ls lacaf/kr izi=-II, IV rFkk V rFkk ,xzhesUV esa vafdr ,isfUMDl rFkk mlls lacaf/kr dkxtkr miyC/k ugha djk;k x;k gSA 14- bl lanHkZ esa vaduh; gS fd fcgkj jkT; fo"ofo|ky; vf/kfu;e 1976 ;Fkk vn~ la"kksf/kr dh /kkjk 35 essa vafdr izko/kku fuEuor~ gS :- 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;

(1) After the commencement of this Act, no teaching no non-teaching post involving financial liabilities shall be created without the prior approval of the State Government.

Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

(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 sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification. of.kZr izko/kkuksa ds vkyksd esa fo"ofo|ky; rFkk egkfo|ky; rFkk oknhx.kksa ds }kjk bu fu;qfDr;ksa esa jkT; ljdkj dh iwokZuqefr izkIr fd;s tkus ls Hkh lacaf/kr dksbZ Hkh lk{; izLrqr ugha fd;k x;k gSA 15- fo'k;k/khu ekeys esa ikfjr U;k;ns"k ,oa blds vuqikyu esa oknhx.kksa ds }kjk fn;s x;s vH;kosnu rFkk voekuukokn esa mYysf[kr ekuuh; mPp U;k;ky;] iVuk ds iw.kZ ihB ds }kjk czt fd"kksj flag ds ekeys esa ikfjr U;k;kns"k ds voyksdu ls izrhr gks jgk gS fd fo'k;k/khu ekeyk mDr U;k; fu.kZ; ds ln`"; ugha gS] D;ksafd czt fd"kksj flag ds ekeys esa Lohd`r inksa ij foKkiu fudkys tkus ds i"pkr~] fo"ofo|ky; Lrj ls vuqeksfnr p;u lfefr ds }kjk vH;fFkZ;ksa dk p;u fd;k x;k Fkk rFkk mudh fu;qfDr esa fcgkj jkT; fo"ofo|ky; vf/kfu;e dh /kkjk&10 ¼6½ ds v/khu dqyifr dk vuqeksnu izkIr FkkA vaduh; gS fd ,y0ih0,0 la[;k& 36@94 czt fd"kksj flag ,oa vU; cuke jkT; ljdkj ,oa vU; esa ikfjr U;k;ns"k dh dafMdk&32 esa Li'V :i ls vfHkx`fgr gS fd "In the ordinary course, in view of my conclusion that it is open to the state govt. to consider the validity of appointment already made for the purpose of granting or refusing post facto approval." ijUrq fo'k;k/khu ekeys esa bu vH;fFkZ;ksa ds fy, xfBr p;u lfefr] p;u lfefr ds xBu dk vuqeksnu fo"ofo|ky; Lrj ij fd;s tkus rFkk p;u lfefr rFkk "kklh fudk; ds fu;qfDr ds fu.kZ; dks Lohdkj fo"ofo|ky; }kjk fd;s tkus dk dksbZ lk{; izLrqr ugha fd;k x;k gSA"

21. This Court has further noticed from the Annexure '8'

which is said to be a copy of Advertisement that there was no

sanctioned post of Store Keeper and, in fact, there was no

Advertisement inviting a person to apply for the post of Store

Keeper. There is no material on the record to show that these

petitioners were appointed against a post which was under the

staffing pattern of the College duly approved by the Government.

Patna High Court CWJC No.2772 of 2017 dt.17-08-2023

22. For the aforesaid reasons, this Court is of the

considered opinion that the case of the petitioners is covered by

the judgment of this Court in the case of Prabhu Nath Sah

(supra). This writ application has no merit. It is dismissed

accordingly. There will be no order as to cost.

(Rajeev Ranjan Prasad, J) lekhi/-

avin/-

AFR/NAFR
CAV DATE                10.08.2023
Uploading Date          17.08.2023
Transmission Date