IMPORTANT POINT
Even if a person is appointed by a person not competent to do so but on sanctioned and vacant post and the fact is duly notified to the authorities who do not take any action and allow the person to continue in service for 29 years, the appointment would be irregular and not illegal.

JUDGMENT

R. BANUMATHI,J.

Leave granted.

2. This appeal by special leave arises out of the order dated 20.02.2013 passed by the High Court of Judicature at Patna in LPA No.1312 of 2012 which was dismissed in limine by the High Court, whereby the order of the learned Single Judge was confirmed observing that the appointment of the appellant as daily wages was not by the competent authority and that he is not entitled for regularization.

3. Brief facts which led to the filing of this appeal are as follows:- The appellant was appointed temporarily in Class IV post of Night Guard, on daily wages vide Office Order dated 04.06.1983 issued by Principal, Ramashray Baleshwar College (for short "College"), Dalsang Sarai, affiliated to Lalit Narayan Mithila University(for short "University"), Bihar. The University vide letter dated 04.07.1985 took a decision to regularize the persons who worked for more than 240 days, and as per the letter dated 30.03.1987, as per which employees who have been working for a period for more than one year need to be regularized. Thereafter, the Additional Commissioner-cum- Secretary, Bihar passed a settlement dated 11.07.1989 and forwarded a copy of the same to the Vice Chancellors of the Universities, wherein it was stated that the services of employees working in educational institutions as per the staff pattern, can be regularized, further imposing a condition that new appointments against the vacancies present and in future should not at all be done. Principal, Ramashray Baleshwar College requested the Registrar of the University to regularize the services of appellant vide letter dated 07.10.1993; but the Registrar passed an Order of termination dated 01.03.2001. A Writ Petition No.9809/1998 was preferred by few similarly placed daily wagers in the High Court. As per the directions issued by the High Court, the Registrar of the University vide letter dated 22.12.2001 allowed all the daily wagers to resume their jobs from 03.01.2002 and the appellant also joined his duties.

4. The Principal of the College again vide letters dated 08.01.2002 and 12.07.2004 recommended for absorption of the appellant against the two vacant posts. In pursuance of the High Court Order in CWJC No. 5774/2000, he was given opportunity to appear before the Three Members Committee constituted by the Vice-Chancellor for consideration of his claim for regularization of services, but the same was rejected as it was not in consonance with the Recruitment Rules laid down by the Constitution Bench judgment in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., (2006) 4 SCC 1 and the same was informed to the appellant by the Registrar vide letter dated 25.11.2007. Appellant approached the High Court by way of Writ Petition (civil) No. 545/2009 and the same was dismissed vide Order dated 26.8.2011 observing that it is a clear case of violation of Section 10(6) and Section 35 of the Bihar State Universities Act, 1976 and there is no illegality in the order passed by the Three Members Committee. Aggrieved by it, the appellant preferred LPA No. 1312/2012 which was dismissed in limine confirming the order dated 26.08.2011. In this appeal, the appellant seeks to assail the above order.

5. Learned counsel for the appellant contended that the appellant served on the post for 29 years on daily wages and even as per the decision in para 53 in Umadevi's case (supra), irregular appointment of employees who have worked for more than 10 years should be considered on merits. It was contended that the appellant has been working in a sanctioned post and his appointment was not illegal but in the facts and circumstances of the case, his appointment could only be irregular appointment entitling him for regularization. It was submitted that Three Members Committee as well as the High Court did not keep in view that the case of the appellant was recommended for regularization.

6. Per contra, learned counsel for respondents No. 1 to 3 contended that Princ