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SANJEEV PRAKASH SHARMA, J.
CWJC No.18817 of 2017
(6.4.2023)
Jai Prakash Vishwavidyalya
Karmachari, Chapra & Ors.(in 18817)
Munna Kumar & Ors. (in 19601) ... Petitioners
vs.
Chancellor of Universities of
Bihar and Ors. (in 18817)
State of Bihar & Ors.
(in 19601) ... Respondents
Bihar State University Act, 1976 – Sections 10 (6) and 35 and Article 3 (5) of Service Tenures – Invalidation of appointment of non-teaching employees as unlawful and illegal – Petitioners were appointed in University as Class IV employees of B.R.A. University did not join – They have been now working for almost as 25 to 30 years – When University considered their cases in 2012 they had completed more than 10 years – Those persons who have completed 10 years of service as on date when Syndicate took a decision, would be entitled for regularization as one time measure – However, several of petitioners, they have not completed 10 years of service their regularization, could not have been made, even though they were working as sanctioned posts – A person who has been appointed by back door cannot be allowed to be regularized – Question of regularization only arises whether appointment has not been followed by due procedure, but appointment is against sanctioned posts – Plea of respondents State and order passed by Vice-Chancellor, on the ground of services could not have been regularized is not sustainable in law – All those who were appointed in University itself, University alone had power to appoint the same and prior approval as envisaged under Section 35 is not necessary for their appointment or regularization – Syndicate and Senate has a final authority in this regard – Appointments made prior to 31.03.2021, University did not require prior approval from State Government – Vice-Chancellor does not have powers to nullify decisions of Syndicate or Senate. (Paras 23, 24, 26, 28, 32 and 33)
University Law – Regularisation – Once pay-scale has been granted, right vests in individual to receive the same, order of withdrawing pay-scale and placing them as ad-hoc pay-scale is found to be in violation of principles of natural justice and deserves to be set aside on that count alone – No purpose would be served in allowing respondents to comply with principles of natural justice as very basis of withdrawing of salary and withdrawing regularization has been found to be unjustified – Impugned orders quashed and set aside – State Government is bound to release finances to University for payment of salary to 43 Class-IV employees, who are working against sanctioned posts – Arrears of salary shall also be released within a period of three months – Writ Petitions allowed. (Paras 35, 36 and 37)
Sanjeev Prakash Sharma, J. – Heard the parties.
2. The petitioners by way of these writ petitions challenges the orders passed by the Vice Chancellor, J.P. University, Chapra dated 09.11.2017 and the order dated 07.12.2017, whereby the Vice Chancellor has declared the appointments of the petitioners to be unlawful and the payment be made to the 43 non-teaching employees namely the petitioners as unlawful and illegal in terms of Section 10 (6) of the Bihar State University Act, 1976 (hereinafter referred as Act of 1976) and Article 3 (5) of the Service Tenures.
3. The brief facts as mentioned in C.W.J.C. No. 19601 of 2021 which need to be noticed for disposal of the petitions are in October, 1982 Colleges situated within Saran Division were carved out from the B.R.A. Bihar University, Muzaffarpur and a separate University by the name of J.P. University, Chapra was established. The University would have control and supervision over administrative jurisdiction on the colleges situated under Saran Division. Consequently, the non-teaching employees of the B.R.A. Bihar University, Muzaffarpur were also apportioned in terms of Section 70 (B) of the Act, but such non-teaching employees did not joined the J.P. University. Resultantly, the petitioners were engaged on daily wage basis against the sanctioned vacant posts for discharging duties as Class-IV and Class-III employees by the competent authority of J.P. University. They were allowed minimum of the pay-scale of Class-IV and Class-III employees posts with admissible D.A. On 12.1.2011, the Syndicate in its meeting Agenda No. 4, resolved to pay salary to the petitioners on the regular pay-scale w.e.f. 01.01.2006 and also regularized their services since they were working on sanctioned vacant posts since long. The resolution was accepted by the University and vide order dated 28.01.2011, the Registrar passed orders regularizing services of the petitioners on Class-IV and Class-III employees posts and granted regular pay-scale. The payscale was released w.e.f. March, 2011. The said order was however, canceled by the Chancellor vide order dated 11.12.2011 on the premises that Vice-Chancellor had passed the order just before his retirement in January, 2011.
4. Thereafter, the regular Vice-Chancellor of the University placed the matter before the Syndicate afresh on 13.02.2012 for approval of the order dated 28.01.2011 passed earlier by his predecessor. The same was approved by the Syndicate on 13.2.2012 and the Senate further approved the resolution of the Syndicate on 15.02.2012, requesting the Vice- Chancellor to issue a consequential fresh order. The Vice-Chancellor vide order dated 01.03.2012 re-validated its earlier order dated 20.01.2011 under Section 10(6) of the Act and regularized 43 non-teaching employees on Class-IV and Class-III employees posts. The pay fixation was approved w.e.f. 01.01.2006 and allowed regular salary and orders were passed by the Registrar on 01.10.2013 releasing regular salary w.e.f. September, 2013.
5. The petitioners continued to receive their salary till January, 2015 in the regular pay-scale, whereafter their salary was withheld w.e.f. December, 2015. They were placed on a consolidated salary of Rs. 6,000/- per month treating them as Adhoc appointees. The ad-hoc payment was later on increased from Rs.6,000/- to Rs. 14,400/- per months. The petitioners stated to have protested against the said ad-hoc payment, whereupon the impugned orders were passed by the Vice-Chancellor.
6. It is stated by the petitioners that the order impugned was challenged in C.W.J.C. No. 18817 of 2017 by the Union of J. P. Vishwavidayalaya Karmchari Sangh, since the petitioners were members of the Union. However, they were advised to file separate writ petition also.
7. The writ petition bearing C.W.J.C. No. 19601 of 2021 was directed to be tagged with C.W.J.C. No. 18817 of 2017 and, therefore, both the cases have been heard together.
8. Facts of C.W.J.C. No. 18817 of 2017:- facts quo
Appointments against sanctioned posts do not require prior approval from the State Government, allowing for post facto validation and regularization of service.
The cancellation of an employee's regularization based on arbitrary grounds violates principles of non-discrimination and due process, necessitating restoration of benefits to similarly situated indi....
Since there are no sanctioned posts on which any of these petitioners were appointed as irregular appointments, no such directions are warranted.
Once a post is sanctioned, prior approval from the State Government is not necessary for appointment; eligibility and suitability can be scrutinized post-appointment.
A sanctioned post permits appointment without prior government approval; rejection of appointment was deemed arbitrary.
The State Government's liability for salary payments to college staff as per Section 60-E of the U.P. State Universities Act, 1973, and the inability of government orders to override statutory rules.
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