The main legal point established in the judgment is that employees seeking regularization must have been appointed on sanctioned posts or permanent vacancies, and must be eligible for the available positions.

Feeling aggrieved by the judgment and order dated 20th May 2011 passed by the learned single Judge in C.W.J.C. No.5350 of 2008, the respondent National Institute of Technology, Patna (hereinafter referred to as “the NIT, Patna”) has preferred this Appeal under Clause 10 of the Letters Patent.

2. The respondent nos. 1 to 9 and 12, the writ petitioners, approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 5350 of 2008 for regularization of their service in the NIT, Patna with effect from 28th January 2004.

3. According to the writ petitioners, pursuant to the public notice dated 14th July 1995, the writ petitioners were appointed on daily wages in Class-III and Class-IV service in the Bihar College of Engineering, Patna (hereinafter referred to as “the College”), affiliated to the Patna University, in its Computer Science Studies Centre. Under the Notification dated 28th January 2004, issued by the Government of India, the Bihar College of Engineering, Patna has been taken over by the Government of India as one of the National Institute of Technology and has been renamed as the NIT, Patna. The College has been taken over by the Government of India lock, stock and barrel. The petitioners have thus become employees of the NIT, Patna. Like other employees of the College, the petitioners also are entitled to absorption in regular service in the NIT, Patna.

4. The petition was contested by the Patna University. According to the Patna University, the appointment of the writ petitioners was not approved by the Patna University. The Patna University disowned its liability in respect of the writ petitioners completely.

5. The petition was also contested by the NIT, Patna. According to the NIT, Patna, the NIT, Patna had absorbed the service of the employees of the College whose employment was approved by the Patna University. The appointment of the writ petitioners was not approved by the Patna University, they, therefore, were not absorbed in the service of the NIT, Patna. The NIT, Patna had also made recruitment for appointment to various posts under the public advertisement dated 10th August 2006. The writ petitioners had been extended the benefit of age relaxation so that they could participate in the said recruitment process. Nevertheless, except the petitioner no.7, none else participated in the recruitment process. The petitioner no.7 (respondent no.12) has been selected and absorbed in the regular service in the NIT, Patna. The Board of Governors of the NIT, Patna also had considered the claim of the writ petitioners for regularization in service. The Board, in its meeting held on 12th November 2006, resolved that they cannot be regularized in service but may be allowed to continue to work and be paid wages approved by the State Government for the skilled, semi-skilled and unskilled labourers, as may be applicable.

6. The learned single Judge has allowed the writ petition and has directed the NIT, Patna to consider the cases of the writ petitioners for regularization in service following the judgments of the Hon’ble Supreme Court in the matter of Secretary, State of Karnataka and ors. v. Uma Devi (3) and ors., {(2006) 4 SCC 1} [:2006 (2) PLJR (SC) 363] and in the matter of State of Karnataka & Ors. v. M.L. Kesari & Ors. (A.I.R. 2010 S.C. 2587). Therefore, this Appeal.

7. Learned advocate Mr. Rakesh Kumar Singh has appeared for the appellant. At the outset, he has submitted that pursuant to the advertisement dated 10th August 2006, the writ petitioner no.7 had been selected and appointed in the NIT, Patna; the writ petitioner nos.9 and 10 have not been reporting for duty for past three years or more, the relief granted to the writ petitioner nos. 7, 9 and 10, therefore, calls for interference on the aforesaid grounds.

8. Learned advocate Mr. Siya Ram Shahi has appeared for the respondents-writ petitioners. He readily admits that he does not contest this Appeal as far as the writ petitioner nos. 7,