IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2714 of 2006
SUSHIL THAKUR s/o late Bajrangi Thakur, resident of village-
Ramchandrapur, P.O.- Satjori, P.S. Gauradih, District-
Bhagalpur.
.... Petitioner
Versus
1. T.M.BHAGALPUR UNIVERSITY , Bhagalpur through its
Registrar.
2. The Vice Chancellor, T.M. Bhagalpur University, Bhagalpur.
3. The Registrar, T.M. Bhagalpur University, Bhagalpur.
4. The Finance Officer,, T.M. Bhagalpur University, Bhagalpur.
5. The Principal,, S.M. College,Bhagalpur.
6. The State of Bihar through the Commissioner-cum-Secretary,
Department of Finance, Government of Bihar, Old Secretariat,
Patna.
7. The Commissioner-cum-Secretary, Department of Higher
Education, Government of Bihar, Patna.
8. The Director, Department of Higher Education, Government
of Bihar, New Secretariat, Patna.
.... Respondents.
-----------
For the Petitioner : Mr. Purushottam Kumar Jha
For respondent nos. 1 to 5 : Mr. Swaraj Kumar Ghosh, Sr.Adv.
Mr. Anil Singh .
For respondent nos. 6 to 8 : Mr. Sanjay Kumar, G.A.no.5.
7 6.4.2011 The petitioner was working as a Night Guard in a
University Hostel under Tilka Manjhi Bhagalpur University. In
1976, the Bihar State Universities Act came into being and
thereafter as per staffing pattern by Annexure 2, the University
notified, inter alia, that for University Hostels there were 134
posts of 4th Grade Employees. The said report states that they
were sanctioned prior to the enforcement of the said Act. The
petitioner was already working as a Night Guard there, which is
not in dispute. After January, 2001, petitioner’s salary was
suddenly stopped though undisputedly he continued to work.
2
This brought the petitioner to this Court along with others in
CWJC No. 7802 of 2002. It appears that the State and the
University raised a controversy stating that the post of Night
Guard and Ward Servant in the hostels of the University were
not sanctioned. The matter was adjourned several times.
Ultimately, University took a stand, that in May, 2002 and June,
2002, they had sought sanction of the said post as per staffing
pattern (these communications are Annexures 8 and 9 to the
supplementary affidavit of the petitioner). The matter was
adjourned in those writ proceedings and ultimately in response
to the said letters of the University, by letter dated 31.1.2003
(Annexure 3), the State Government sanctioned of creation of
only 43 posts in this regard. As noted above, the University had
been maintaining that as per staffing pattern there were 134
such posts sanctioned. Upon this, the writ petition , as field on
behalf of the petitioner being CWJC No. 7802/2002 was
disposed of by this Court on 7.2.2003 wherein this Court noted
various contentions and this Court held that it would not sit in
appeal over the decision of the State Government in sanctioning
only 43 posts as against recommendation of much larger by the
University. However, noticing that the petitioner and their like
were working there from before and there would be more than
43 staff, controversy would arise this Court then directed that the
University should fix equitable criteria for absorption of 43
persons and pay them salary in accordance with law, which
should be done within two months. I may notice that all different
3
petitioners in that group of analogous cases preferred L.P.As.
The L.P.A. ,inter alia, preferred by the petitioner was L.P.A. No.
255 of 2003, which was ultimately, as apparent from the order
dated 16.7.2010 passed therein, disposed of as infructuous
recording the statement of the counsel that there was no further
grievance surviving as against the said judgment as passed in
CWJC No. 7802 of 2002, disposed of on 7.2.2003. It may also
be mentioned that learned counsel for the petitioner in these
proceedings states that he has filed an application for recall of
the said order, as passed in LPA but no order has yet been
passed. Be that as it may, so far as this Court is concerned, this
Court has to proceed on basis of the order as passed by learned
Single Judge in petitioner’s writ petition as if that has attained
finality, which, however, is subject to the application filed
before Division Bench by the petitioner.
By this writ petition, petitioner challenges the
purported consequential order passed by the University, first
being dated 20.8.2005 (Aannexure 5) by which petitioner’s
services as Ward Servant-cum- Guard has been regularized
with effect from 31.1.2003. The consequence of this order is that
though they have been regularized with effect from 31.1.2003,
as mentioned in the order itself, their payments would only be
made with effect from March, 2005 for which there is no
explanation. In nut shell , the grievance of the petitioner is that
he had been regularly paid upto January, 2001 and now was to
be paid from March, 2005 leaving the period in between which
4
he worked as unpaid. His submissions are three folds. Firstly,
University and the State cannot exploit the situation and refuse
to pay for the work done where admittedly and undisputedly
there was no irregularity or illegality in petitioner’s appointment
and secondly he submits that the university’s own stand had
been and that was the import of the Full Bench decision of this
Court in the case of Braj Kishore Singh & ors-v- The State of
Bihar & ors. Since reported in 1997(1)PLJR 509 that even
prior 1976 post was sanctioned though the government had
reduced the sanctioned post to 43, those persons who came
within the ambit of this 43 and have been working from before
would be entitled to payment from before i.e. for the period
missed out between 2001-2005 and lastly it is submitted that
there is no reason and rational for making payment only from
March, 2005 when the posts were available for sanction from
the very inception of the University and deemed sanctioned in
view of the Full Bench judgment (supra)and the people were
working on those posts.
Mr. Swaraj Kumar Ghosh, learned Senior Counsel for
the University submits that it is not open to the petitioner to re-
agitate the questions, which were before this court in the earlier
writ petition and concluded by withdrawal of L.P.A. In my view
he is correct. But the challenge of the petitioner is not of that
order but an order passed two years thereafter. The petitioner’s
limited grievance is that the impugned order, as contained in
Annexure 5, which was passed on 20.8.2005, is bad in so far as
5
it restricts payment from March, 2005 though regularization of
the services from January, 2003 and the University itself has
held that they were all working prior to it and it was paying
petitioner’s salary regularly upto 2001 there is no reason why a
break up has been made when they have been working. In my
view, it is open to the petitioner to get an order from this Court
on this limited issue in the present proceeding, which was not
there before this Court on the earlier occasion.
In my view the matter is simple and plain. The
petitioner cannot be denied his payment for the period February,
2001 to February, 2005. It is not in dispute and the university
does not dispute its stand that even prior to 1976 when the
Bihar State Universities Act, 1976 came into being, 134 posts
for the University were sanctioned which is clear from
Annexure 2.This facts is also clear from the University’s
communication to the State Government, as made in the year
2002 itself, which are Annexures 8 and 9 to the writ petition.
Thus, so far as University is concerned, it always considers the
posts duly sanctioned. In fact, the University was correct in its
stand keeping in view the judgment of the Full Bench of this
Court in the case of Braj Kishroe Singh (supra) with regards
staffing pattern and concept of deemed sanction but a
controversy started that there was no written order of the State
Government with regard to the number of posts sanctioned and
this is how the controversy started with the State Government
creating and sanctioning only 43 posts, vide Annexure 3, dated
6
31.1.2003. On the earlier occasion when this petitioner agitated
this matter, this Court held that it would not sit as an appellate
authority over this issue and refused to decide its validity. It
would be wholly in appropriate for this Court to re-consider the
matter. However, the fact remains that the petitioner was
appointed on a post, which was deemed sanctioned and had
been working. He fell within 43 posts as duly sanctioned by the
State also and as such it cannot be said that the petitioner was
illegally or wrongly appointed or not working on the said post
so as to deprive him of his salary. We are in a democratic society
governed by rule of law where State instrumentalities are
expected to act fairly and in non-arbitrary manner consistent
with the principle enshrined under Article 14 of the Constitution.
When the State legitimately took work from a person and he
demands his payment for the work having been taken, but his
payment is denied, that would not be only inequitable but also
illegal as well as that would lead to exploitation of a person,
which is impermissible for the University. Neitehr the
University nor the State has been able to disclose any reason
much less valid reason for such deprivation of remuneration for
such period. Thus, on the facts, aforesaid, as of now, I direct the
State and the University to ensure payment to the petitioner of
his due remuneration for the period February, 2001 to February,
2005 and treat that period as regular service for all purposes,
may be service or post retiral benefits including pensionary
benefits. The said payment must be made within a period of
7
three months from the date of production of a copy of this order
before the Registrar of the University.
With the aforesaid observations and directions, the
writ petition is allowed.
Singh ( Navaniti Prasad Singh, J.)