IN THE HIGH COURT OF PATNA
Chakradhari Sharan Singh, J.
Shiv Shankar Choudhary – Appellant
Versus
The State of Bihar and Others – Respondent
Civil Writ Jurisdiction Case No. 19296 of 2019
Decided On : 21-08-2021
Bihar State Universities Act, 1976 – Section 35 – Regularisation of daily-wager – Petitioner was engaged on daily wage basis as sorter on 13.02.1986 – No post of sorter in Library was sanctioned – It is nowhere pleaded in writ application that second post of sorter in Library was within framework of staffing pattern – If appointments are made against posts as per staffing pattern, i.e. within sanctioned strength, they cannot be said to be violative of Section 35 of Act and illegal on the ground that the posts have not been sanctioned by State Government provided candidates possess eligibility and suitability and selection/appointment process was in conformity with Articles 14 and 16 of Constitution – Petitioner's initial engagement itself was violative of Section 35 of the Act as the same was not made against a post as per staffing pattern of College – No selection/appointment process was undertaken in conformity with Articles 14 and 16 of Constitution – Specific case of respondent Universities that Principal of College did not have competence to make appointment against post of sorter has not been disputed by petitioner – It is absurd on part of petitioner to claim fixation of pay for period during which he was working on daily wage basis against an unsanctioned post – Writ Application dismissed. (Paras 9, 10, 12, 14 and 15)
JUDGMENT :
1. By a letter dated 12.02.1986 addressed to the petitioner by the Principal, M.K. College, Laheriasarai, the petitioner was appointed as sorter in the Library of the College on casual basis on payment of Rs. 12.50 per day. There was no process of selection conforming requirements of Articles 14 and 16 of the Constitution of India undertaken before the said engagement. The College is a constituted unit of the said University. The post of sorter in the Library was not sanctioned. The petitioner joined the said post on the very next date i.e. on 13.02.1986.
2. It is the petitioner's case that the Principal of the College had intimated the University about the petitioner's engagement in the College through letter dated 21.01.1994 issued under the signature of the Principal of the College. The Principal also informed through the letter that post of Librarian was vacant in the College. In response to the said letter dated 21.01.1994, the Registrar of the University addressed a letter dated 29.01.1994 to the Principal mentioning that the petitioner should be allowed to continue against the post and that he would be entitled to payment on revised rate of 'daily wage'. The letter dated 29.01.1994 goes to suggest that as on said date, the petitioner was working on daily wage basis in the College.
3. It is the petitioner's case that he had approached this Court by filing writ petition for regularisation of his service, which had given rise to C.W.J.C. No. 8734 of 1995 and was allowed with a direction '... If there is no post of sorter available other than one sanctioned post, the authorities may write to the State Government for creation of another post of sorter for accommodating the petitioner, since the petitioner is working on the post since 1986 on ad hoc basis...'.
4. It appears from a communication dated 28.08.1998 that one Smt. Sanju Choudhary was working against the sanctioned post of sorter in the College, who was to be shifted to D.V.K.N. College, Narhan, Samastipur, another constituent unit of the University. So as to comply with the order of this Court passed in C.W.J.C. No. 8734 of 1995, the Additional Secretary, Higher Education Department, Government of Bihar, requested the Registrar of the University to adjust the petitioner against the post of sorter falling vacant because of transfer of Smt. Sanju Choudhary. The letter dated 28.08.1998 clarifies that till said date, the post of sorter in the College was not vacant. Subsequently, the University came out with a notification dated 29.10.1998 issued in the light of the order of this Court passed in C.W.J.C. No. 8734 of 1995 and the direction of the Additional Secretary to the Government of Bihar vide letter dated 28.08.1998 regularizing the services of the petitioner against sanctioned post of sorter, i.e., 'the post held by Smt. Sanju Choudhary at M.K. College, Laheriasarai' in the prescribed scale of pay with effect from the date of order dated 17.10.1998. The petitioner accepted the said order, as contained in the notification dated 29.10.1998, without raising any objection over the date, i.e., 17.08.1998, with effect from which, his services were regularized. Nearly two decades thereafter, he approached this Court by filing a writ petition, giving rise to C.W.J.C. No. 14139 of 2018, claiming that his initial date of appointment ought to have been treated as 13.02.1986, when he was appointed on daily-wage basis. Without going into the merits of the petitioner's claim, a coordinate Bench of this Court disposed of the said writ application in view of submissions made on behalf of the petitioner that the petitioner would be satisfied if he was permitted to file a representation regarding his grievance mentioned in the writ petition before the Registrar of the University. In compliance of this Court's order, the petitioner was permitted to file a representation and respondent No. 6 was directed to dispose of the representation by reasoned and speaking order within a
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