Dismissed

Sahdeo Pandey v. The State Of Bihar and Ors.

Patna HC1 May 2014CWJC/3877/2014

Case brief

AI extract

What is this about?

Patna HC refused to direct regularization of a Physical Trained Inspector in a private college because the post was not officially sanctioned by the State Government, distinguishing it from cases where the court had directed such creation. Dismissed.

What did the court decide?

The writ application regarding regularization of services was dismissed due to lack of a sanctioned post.

Sahdeo Pandey Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3877 of 2014

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====================================================== Sahdeo Pandey Son Of Sri Bhikhu Pandey Resident Of Village Panapur Langa, P.S. - Hajipur Sadar, District - Vaishali; Appointed As Physical Trained Inspector (P.T.I.) Bramhdeo Muni Udasin Sanskrit Maha Vidyalaya (College) Hajipur, District - Vaishali

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.... .... Petitioner/s Versus 1. The State Of Bihar, Through The Secretary (Higher Education), Human Resource Development Department, Patna, Bihar 2. The Vice-Chancellor, Kameshwar Singh Darbhanga Sanskrit Vishwa Vidyalaya (University), Darbhanga 3. The Registrar, Kameshwar Singh Darbhanga Sanskrit Vishwa Vidyalaya (University), Darbhanga 4. Prancharya (The Principal), Bramhadeo Muni Udasin Sanskrit Maha Vidyalaya, Hajipur, District - Vaishali

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.... .... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Lakshmi Kant Tiwary, Adv. Mr. Anil Kumar, Adv. For the University : Mr. S.S. Sundaram, Adv. For the State : Mr. Dhirendra Kr. Singh, AC to GP-26 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 01-05-2014 Heard learned counsel for the parties. The prayer of the petitioner in this writ application

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reads as follows:-

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“1(i) Quashing the order/letter dated 05.06.2012 (annexure-6) passed by the registrar (respondent no.3) by which rejected the resolution for regularization of the petitioner in his service against direction of this Hon’ble Court passed in CWJC no. 8612/2009 vide order dated 25.07.2009 and salary of the petitioner has been declared illegal. (ii) Direction to the respondents to regularize the service of the petitioner as an employees,

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Patna High Court CWJC No.3877 of 2014 (3) dt.01-05-2014

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employed by the competent authority observing the norms of regular appointment to the post within the staffing patter as applicable to the college from his date of joining the College being 7^th July 1984.

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(iii) Direction to the respondents to allow the petitioner all the consequential benefits of his regularized service after counting the entire period as the period spent in service against the vacant post within the staffing pattern as applicable to the college and be allowed any other relief or reliefs for which the petitioner may be found entitled to.”

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Mr. Laxmi Kant Tiwari, learned counsel for the

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petitioner, in support of the aforementioned prayer, has submitted that it is really unfortunate for the petitioner to find that the Vice Chancellor of the Kameshwar Singh Darbhanga Sanskrit University has chosen to reject the case of regularization of the petitioner on the ground that there was no sanctioned post of Physical Training Instructor in the Brahmndeo Muni Udasin Sanskrit Mahavidyalaya, Hajipur, Vaishali even when there were materials to show that the State Government itself had taken a policy decision way back on 5.9.1980 of there being one post of Physical Training Instructor in every college. He has further submitted that while the petitioner is singled out in the matter of benefit of regularization of the service, 33 persons similarly situated have been regularized in service because of the direction

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Patna High Court CWJC No.3877 of 2014 (3) dt.01-05-2014

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given by this Court.

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Learned counsel for the State and the University, on the other hand, has submitted that the petitioner is an employee of a private institution, which is only affiliated to the University and, therefore, if the Vice Chancellor has found and that too upon being directed by this Court to examine the case of regularization of the petitioner that there is no sanctioned post of Physical Training Instructor in the college, no exception can be made by the petitioner in view of the settled law that regularization can only be made if there is a sanctioned post. They have explained that the staffing pattern framed by the State Government has no sanctioned post, any policy decision taken by the State can only be said to have been brought into existence, once there is a specific order for sanction of post for a particular college.

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In the considered opinion of this Court, the moment it is admitted that the petitioner’s institution is a private college which is only affiliated to the University and receives financial aid from the State Government for payment of salary and emoluments, his claimed for regularization, in all fairness, could have been decided only by the Appointing Authority. Admittedly, the Appointing Authority of the petitioner is the Governing Body of the college and, therefore, even the decision of regularization

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Patna High Court CWJC No.3877 of 2014 (3) dt.01-05-2014

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was to be taken by the Governing Body. Since this Court, on an earlier occasion, had directed the Vice Chancellor of the University to consider the claim of regularization of the petitioner, the impugned order has been passed by the Vice Chancellor, who otherwise in terms of Section 59 of the Bihar State University Act was not in a position to interfere in the internal affairs of the college, which is a private college and only affiliated to the University.

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Judged in this background, once this Court would find the correctness of the impugned order, it will have no exception in law because it is a settled proposition that regularization of service can only be made against a sanctioned post. The reference to a resolution or a meeting of the Government with regard to desirability of having one post of Physical Training Instructor in a college cannot amount to its being read as a sanction of post in terms of Section 35 of the Bihar State University Act. Thus, the law has been laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in 2006(4)SCC 1 that no regularization can be made unless the post is sanctioned. This judgment was also approved by the Full Bench of this Court in the case of Ram Sevak Yadav & Anr. Vs. The State of Bihar & Anr. reported in 2013(1)PLJR 964 wherein,

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Patna High Court CWJC No.3877 of 2014 (3) dt.01-05-2014

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adducing and relying the principle in the case of Uma Devi, it was

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held as follows:-

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“43. We therefore sum up our conclusions and answer of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;

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(A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;

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(B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.

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(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.

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(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for ever ten years without intervention of any court orders.”

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The aspect that 33 persons who had come to this

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Court and, in their case, a direction was issued for creation of the post, whereafter, in compliance of the said order, the State Government created the post cannot be made at par with the case of the petitioners. In the case of the petitioners, when he came to

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Patna High Court CWJC No.3877 of 2014 (3) dt.01-05-2014

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this Court, there was no such direction as is apparent from the earlier order of this Court dated 25.7.2009 in CWJC No. 8612 of 2009, relevant portion whereof reads as follows:-

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“3. This application is being disposed off. The petitioner will file his representation before the Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga, within four weeks from today. In case of filing of such representation, the Vice Chancellor will consider the case of regularization of the petitioner also in the similar manner as the cases of petitioners in the earlier writ application. In case petitioner fulfills the conditions for regularization, an order be passed in his favour in accordance with law. The orders must be passed in the case of the petitioner within two months from the date of filing of the representation by the petitioner.”

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In view of the above, this Court cannot direct the respondents to regularize the services of the petitioner because there is nothing on record to show that the post of Physical Training Instructor, allegedly held by the petitioner, was ever sanctioned by the State Government.

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This writ application, therefore, must fail and is, accordingly, dismissed.

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(Mihir Kumar Jha, J)

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Rishi/-

Sahdeo Pandey v. The State Of Bihar and Ors.

Case brief

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Sahdeo Pandey v. The State Of Bihar and Ors.

Case brief

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