Patna High CourtSubhash Chandra Jha vs K.S.Darbhanga Snk,University on 12 December, 2008Author:Sheema Ali KhanBench:Sheema Ali KhanCIVIL WRIT JURISDICTION CASE No.793 OF 1988
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                IN THE MATTER OF AN APPLICATION UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA.
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                Subhas Chandra Jha son of Shri Durga Nand Jha, resident
                Of Karma, Police Station- Alam Nagar, District- Madhepura
                At present working as ' Adeshpal' in the office of
                Registrar, Kameshwar Singh Darbhanga Sanskrit University,
                Darbhanga.
                                                    --------Petitioner.
                                          -Versus-
                1. Kameshwar Singh Darbhanga Sanskrit University
                   Darbhanga through its Vice Chancellor.
                2. Registrar, Kameshwar Singh Darbhanga Sanskrit
                   University,Darbhanga.
                                             ----------Respondent Ist set.
                3. Anil Kumar Jha, son of not known.
                4. Ashok Kumar Sharma, son of not known.
                5. Arjun Choudhary, son of not known.
                6. Uma Nath Mishra, son of not known.
                7. Jagarnath Jha, son of not known.
                8. Dharma Narain Jha, son of not known.
                9. Dhanpati Mishra, son of not known.
                10.Nitya Nand Jha, son of not known.
                11.Phuldeo Jha, son of not known.
                12.Mithilesh Kumar Lal, son of not known.
                13.Yogendra Choudhary, son of not known.
                14.Rajendra Choudhary, son of not known.
                15.Ram Bilas Saha, son of not known.
                16.Lakshman Mishra, son of not known.
                17.Vijay Kumar Sinha, son of not known.
                18.Baidyanath Jha, son of not known.
                19.Shayamjee Jha, son of not known.
                20.Shayam Jha, son of not known.
                21.Shailesh Chandra Jha, son of not known.
                22.Sudarshan Mishra, son of not known.
                23.Sudhir Jha, son of not known.
                24.Santosh Kumar Jha, son of not known.
                25.Harimohan Jha, son of not known.
                26.Harishankar Jha, son of not known.
                27.Binod Shankar Jha, son of not known.
                28.Kaushal Kishore Mahto, son of not known.
                29.Satish Kumar Sharma, son of not known.
                   All are at present working in the office of Kameshwar
                   Singh Darbhanga Sanskrit University Darbhanga through
                   its registrar.
                                           ---------- Respondents 2nd set.
                30.Brahmachari Surendra Kumar, son of not known Vice
                   Chancellor, Kameshwar Singh Darbhanga Sanskrit
                   University, Darbhanga.
                                           ---------- Respondent 3rd set.

                            P R E S E N T

              THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN


S.A.Khan,J.              This writ application is being heard on remand after the
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order passed in L.P.A. No.446 of 1999 with L. P. A. No. 479 of 1999

on 30.8.2001.

                This writ application has been filed by Subhash Chandra

Jha for quashing the order dated 25.1.1988 issued by the Registrar of

Kameshwar Singh Darbhanga Sanskrit University(hereinafter referred

to be as „the University‟)by which 27 class-III employees working on

daily wages have been appointed and regularized on vacant and

sanctioned posts in the prescribed scale.

                The other prayer of the writ petitioner was that he was

entitled for promotion on Class-III post in the said University.

                This Court while deciding the issues has stated that " It is

made clear that as the private respondents were not appointed against

the sanctioned post falling within the staffing pattern, order of

regularization is not valid. The case is not covered by the Full Bench

decision of this Court in the case of Braj Kishore Singh Vs. The State

of Bihar and others , 1997(1) P.L.J.R., 509 in which the case of

appointments were not against the post fallen within the staffing

pattern which were treated as sanctioned post and in that context it was

held that the persons appointed continuing in service of 17years against

the sanctioned post appointed after an advertisement, a direction for

their regularization should be given"

                The second prayer of the writ petitioner, however, was

rejected indicated by the court on the ground that the University had

taken   stand that no person junior to the petitioner had been granted

promotion to Class III post.
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              The private respondents filed a Civil Review application

numbered as Civil Review No.144 of 1998 challenging the order by

which the private respondents were held to be not working against the

sanctioned post or according to the staffing pattern of the University.

              The submissions made on behalf of the private

respondents ( review petitioners) in the Civil Review application was

that the University had accepted that the regularization of the

petitioners was made on the direction of the State Government.

              The court observed that the facts aforesaid was not a

ground for review and gave leave to the review petitioners to file an

appeal against the order of the Learned Single Judge. Accordingly, the

private respondents of C.W.J.C. No.793 of 1988 (review petitioners)

filed a Letters Patent Appeal. In course of hearing, the L.P.A. it came to

light that the affidavit of the University did not contain correct facts.

The Division Bench has taken serious note of the lapses on behalf of

the University. Ultimately, the L.P.A. court held as follows:

                         "Let this be the end of this chapter. Mr.

                        Tara Kant Jha, senior advocate appearing

                        on behalf of the University mentions that

                        reliefs which the petitioners were meant to

                        receive, now that the mistakes have been

                        accepted. The reliefs on the writ petition will

                        be considered with equal measure and would

                        be processed accordingly."

              The Court further held..........."
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".........Clearly, this Court is not judging

the judgment on the writ petition in appeal.

The judgment with incorrect facts having

been given by one party is not binding and

ultimately directed as follows:

" This appeal stands consigned to the

record and the matter will        necessarily

need to be reviewed on the writ petition

more so as the University itself has filed a

review petition. However, the record of this

Letters Patent Appeal will be available

before the Division of the Court so that it

may see for itself that the mistakes as were

on the writ petition record originally are

now accepted and due corrections are

being applied for to correct the incorrect

record. But, the record is of the writ court.

The judgment is not wrong, it was the

record which is now accepted as wrong

with   correct   facts being kept      away.

Appropriately this Court in appeal should

not correct the judgment if withheld facts

have now resurfaced. The court of original

jurisdiction will consider the new facts,

hidden so far, and then would be free to
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                          render judgment on the state of the

                          record."

              The final order in this case should be read with along

with the order, dated 23.3.2001 in the letters patent appeal wherein the

court has considered that the University had placed facts which were

misleading and resulted in the decision of learned single Judge. In the

order, dated 23.3.2001 this court had considered the case of the writ

petitioner with respect to promotion and the records of the University

which were in contravention to the affidavit filed on its behalf.

              With respect to the respondents the court observed :

                         "In so far as the first set or the second set

                         respondents were concerned, on the basis of

                         what the University states, that nothing was

                         available     to    affect    promotion,     the

                         observation of the court was :

                         "There can be no occasion to regularize

                         them or give them valid confirmation. The

                         so-called    exercise   of   confirming     such

                         employees, therefore, remained a futility."

              Thereafter, the court observed as follows :

                          "As admittedly in this case the post has not

                          been sanctioned and the University has no

                          power to create a post without sanction of

                          the State Government. As such, the

                          regularization of the respondents second
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                          set is nullity in the eye of law and on this

                          ground alone the impugned order is not

                          sustainable in law."

                          "The observation rested on the submission

                          of the University, regard being had to the

                          circumstances,        that      such   of   those

                          employees, who are III and IV grade, as

                          they were continuing for more than 5

                          years, the sanction of the Government was

                          awaited. Thus, the University regularized

                          the    services      of   the     employees    in

                          anticipation. The plea of the University

                          notwithstanding, on the observation of the

                          court, the respondents second set, after the

                          judgment stood relieved."

              Under these circumstances CWJC No. 793 of 1988 has

to be re-heard and considered by this court.

              As stated above, the writ petitioner has claimed two

reliefs; firstly that the order, dated 25.1.1988 issued by the Registrar of

the University with respect to 27 Class III employees on daily wages

be quashed and secondly to consider the promotion of the petitioner on

a Class III post of a Routine Clerk.

              Ms. Namrata Mishra appearing on behalf of the

petitioner submits that her client has been granted the second relief i.e.

he has been promoted on a Class III post and as such she does not wish
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to pursue the writ petition and prays for its withdrawal.

               The prayer on behalf of the petitioner for withdrawing

the writ petition has been opposed by the counsel for the private

respondents to the extent that counsel for the respondents want a

clarification from this court with respect to their future.

               It has been submitted by counsel appearing on behalf of

the respondents that the stand taken by the respondent university is

varying from stage to stage, and the appeal court has remanded the

matter back to the first court for consideration of the reliefs to be

granted to the petitioner, it would become necessary for this court to

clarify/answer with respect to the reliefs claimed by the petitioner

inasmuch as the petitioner had prayed that the regularization of the

respondents 2nd set be quashed.

               To clarify the position this court now turns to the

affidavit filed on behalf of the University in CWJC No. 793 of 1988.

The stand of the University at paragraph 12 is quoted below :

                          "That with regard to the statements made in

                          paragraph 19, it is stated that since daily

                          wage Class IV and III employees were

                          continuing for more than 5 years and the

                          University had already written to the

                          Government for sanctioning requisite posts.

                          So in anticipation of Government approval,

                          their services have been regularized."

               With respect to status of the respondents, the affidavit
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filed in Civil Review by the University is somewhat different At

paragraph 8 of the counter affidavit filed in Civil Review No. 144/1988

the averments are as follows :

                         "That in reply to the averments made in

                        paragraph Nos. 6 & 7 the deponent submits

                        that it is a matter of record. It is stated that

                        the regularization of the Review petitioners

                        was made by the university pursuant to the

                        policy decision of the State Government. For

                        regularization of the persons working within

                        the staffing pattern. It is further pertinent to

                        state here that the Bihar Inter Universities

                        Board, Patna, approved the norms for

                        staffing pattern in Universities and colleges

                        as recommended by the Committee and

                        approved by Bihar Inter Universities Board

                        on 14.1.1980 and since the said approval of

                        staffing pattern was accepted by the State

                        Government so a letter containing memo no.

                        746 dated 2nd June, 1986 was issued under

                        the      signature   of    Director       (Higher

                        Education) for fixation of the non-teaching

                        employees working on the basis of staffing

                        pattern and an inquiry committee was

                        constituted     which     visited   the    entire
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                         Universities of the State including the

                         deponent University and after examining

                         the entire matter / records a direction was

                         given    by   the    State   Government     for

                         regularization of the persons working under

                         the staffing pattern."

              Paragraphs 9, 10 and 11 of the counter affidavit filed in

the review petition are as follows :

                         "9. That it is further pertinent to state here

                         that thereafter the Review petitioners were

                         interviewed, selected and regularized by the

                         then Vice Chancellor of the University.

                         "10. That it would not be out of place to

                         state here that as per the agreement between

                         the Association of Bihar State Universities

                         and Colleges Karmchari Mahasangh dated

                         24.4.1989and the State Government a

                         decision was taken and an agreement was

                         made by saying that the State Government

                         is agreed to regularize the services of

                         employees working under staffing pattern

                         and     the   said    decision   was      again

                         communicated to the University vide          a

                         letter containing Memo No. 674 dated Ist

                         May, 1989.10"11. That thereafter again a direction was

                        given by the State Government vide letter

                        bearing No. 894 dated 11.7.1989, whereby

                        the Vice Chancellor of all the Universities of

                        the State of Bihar were informed about the

                        decision of the State Government for

                        regularization    of   the   services   of   the

                        employees working under staffing pattern

                        and for that purpose an inquiry was to be

                        made at the level of the University and a

                        direction was given to submit the report

                        along with the list of the employees working

                        under staffing pattern."With respect to the aforesaid stand, the University had

also annexed the documents in question. Therefore, on perusal of the

two affidavits filed by the University, it is apparent that on one hand

the University claims that the respondents were not working against

sanctioned post and on the other hand accepts the fact that the

respondents were working in accordance with the staffing pattern as

fixed by the State Government for the Universities of Bihar.There are two aspects with respect to the employees of

affiliated / constituent / taken over colleges. In the colleges aforesaid

there were six unsanctioned posts. When the question of taking over of

these colleges was considered, several dispute arose with respect to

persons who had been working in these colleges beyond the sanctioned11strength which led to filing of writ petition and finally this court took a

                     decision with respect to such employees in the case ofBraj Kishore

                     Singh Vs. The State of Bihar & othersreported in 1997 (1) PLJR, 509.

                     Therefore, the submission of the respondents is that even though they

                     may not have been working against the sanctioned post but they came

                     within the staffing pattern.Since the writ petitioner is withdrawing the writ

                     petitioner, any observation made in the order, dated 17.4.1998 will

                     automatically merge into the final order and cannot be held by this

                     court that the observations made on 17.4.1988 with respect to the writ

                     petition would hold the field. Their case will be covered by the decision

                     in the case ofBraj Kishore Singh Vs. The State of Bihar.In the conclusion I may observe that any party being

                     aggrieved will have the right to approach the proper forum for redressal

                     of their grievances.In the result, this writ petition is disposed of with the

                     aforesaid observations.Patna High Court,                                                           (Sheema Ali Khan, J.)
December 12, 2008,
NAFR / Haque