Judgment:
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for the following reliefs:
(1) For quashing of the common order dated 25.6.1994 passed by the respondent Vice-Chancellor whereby and where under in the purported compliance of the order passed by this Hon'ble Court on 1.10.1993 in C.W.J.C. No. 8929 of 1991, filed by these petitioners, the services of the petitioners were terminated with immediate effect.
(2) For quashing of the order as contained in letter Nos. 2629, 2630 and 2631/1996 all dated 31.5.1996 whereby the petitioners have been informed by the Registrar that in relation to the order dated 28.11.1995 passed by this Hon'ble Court in C.W.J.C. No. 7951 of 1994. filed by these petitioners, whereby the respondent Vice-Chancellor was directed to forward the names of the petitioners to the State Government, as was done in respect of other employees similarly situated, for consideration of the case of the petitioners along with others, within two weeks of the receipt of the representation ignoring the order of the termination of the services of the petitioners stood rejected.
2. The facts in brief are stated as under:
The Governing Body of the college advertised post of two Assistants and one Library Assistant in Class-Ill and 4 posts of Peons in Class-IV and accordingly interviews took place and in the meeting of the Governing Body dated 30.1.1981 appointment letters were issued to the petitioners.
3. According to the counsel for the petitioner the Bihar Inter University Board recommended a staffing pattern for the University and College of Bihar on 14.1.1.980 and on 5.1.1984 and the Vice-Chancellor of the University provisionally approved the appointment.
4. The counsel for the petitioner submits that the petitioners were working since 1981 and in 1984 they were duly appointed and continued to work till 25.6.1994 when their services were terminated which was challenged by way of a writ petition C.W.J.C. No. 8929 of 1991. The Hon'ble Division Bench of the Patna High Court vide its order dated 1.10.1993 directed the Vice-Chancellor to examine the dispute as to whether the posts were sanctioned or not after considering all the materials and records. In the same order it was also directed as under:
It is made clear in case it is found that the petitioners were not working against sanctioned posts, respondent Vice-Chancellor shall be at liberty to take any appropriate action in accordance with law for their removal etc.
5. Thereafter, petitions were filed up to Supreme Court which was dismissed on 25.6.1994. In compliance to the direction issued by the Hon'ble High Court on 1.10.1993 the Vice-Chancellor after considering the entire record by a speaking order held as under:
(i) That the applicants were holding the posts which were not legally sanctioned;
(ii) The appointment was in violation of Section 35 of the Bihar State University Act. 1976;
(iii) The Governing Body had neither any authority nor jurisdiction to appoint the petitioner etc.
This order dated 25.6.1994 is sought to be challenged in the present writ petition.
6. The main contention raised by the learned Counsel for the petitioner, Mr. L.K. Bajla, is that the respondents have acted in a very high handed, illegal and arbitrary manner. It has also been contended that they were kept in service for good thirteen years and the Governing Body was empowered to appoint the petitioners based on the staffing pattern which was duly recommended by the Bihar Inter University Board for the University and College and the number of post for teaching and non-teaching employees were fixed.
7. It is further submitted by the counsel for the petitioner is that there was no need of any sanction of post by the State Government nor any financial concurrence was required and in this regard he has referred to and relied upon the following judgments:
(1) 1997 (1) PLJR 509;
(2) 1998 (1) PLJR 723;
(3) 2003 (3) PLJR 749.
He has mainly relied upon 1997 (1) PLJR 509. which is a Full Bench judgment of this Court on the issue and thus according to him the petitioners were entitled to be regularized in service in view of the ratio laid down in the judgment and no sanction was required of the State Government.
8. The counsel for the respondent have submitted that in any case appointment of the petitioners were void, ab-initio, illegal and could not be sustained for the sole reason that events otherwise it was beyond the sanctioned strength. Section 35 of the Universities Act requires prior sanction of the State Government for creation of posts and appointments and it applies to all affiliated colleges.
9. I have considered the arguments and the pleadings and also perused the Full Bench judgment and the other connected judgments. At the very outset I would like to refer Section 35 of the Bihar State University Act as adopted by the Jharkhand State University and the same is quoted as under:
35. No part for appointment shall be created without the prior sanction of the State Government-(1) Notwithstanding anything contained in this Act, no University or any College affiliated to such a University, except such College:
(a) as is established, maintained or governed by the State Government; or
(b) as is established by a religious or linguistic minority;
(i) After the commencement of this Act no teaching or non-teaching post involving financial liabilities shall be created without the prior approval of the State Government;
(ii) shall either increase the pay or allowance attached to any post, or sanction any new allowance;
(iii) shall sanction any special pay or allowance or other remuneration of any kind including ex-gratia payment or any other benefit having financial implication to any person holding a teaching or non-teaching post;
(iv) shall incur expenditure of any kind on any development scheme without the prior approval of the State Government.
(2) Notwithstanding anything contained in this Act, no College other than one mentioned in Clauses (a) and (b) of Sub-section (1), shall, after the commencement of this Act, appoint any person on any post without the prior approval of the State Government.
Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification.
(3) Any appointment or promotion made contrary to the provisions of this Act, or Statues, Rules or Regulations made thereunder or made in irregular or unauthorized manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realized from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.
10. The Hon'ble Supreme Court in : (2005)9SCC129 , State of Bihar and Ors. v. Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. while considering a similar issue held that Section 35 clearly mandates prior approval of the State Government for sanction of posts. Section 35 requires prior sanction or approval of the State Government for creation and sanction of posts both for teaching as well as non-teaching posts involving financial liability of Government.
11. Again in the case of Veer Kunwar Singh University Adhoc Teachers Association and Ors. v. The Bihar State University (C.C.) Service Commission and Ors. reported in 2007 (3) JLJR (SC) 194 the Hon'ble Supreme Court at paragraph 46 held as under:.We may, however, direct that it would be open to the State of Bihar as also the concerned Universities to forthwith terminate the services of those teachers not working against sanctioned posts or who do not fulfill the requisite educational qualifications or whose services are otherwise not required.
It is a mandatory pre-condition and the requirement of law in this regard is well settled. The interpretation by the learned Counsel for the petitioners with regard to the Full Bench judgment being in their favour appears to be incorrect and unsustainable. Paragraphs 30 and 32 of the impugned judgment is quoted as under:
30. In view of my interpretation of Section 35 of the Act and conclusion that the staffing pattern has already been laid down which amounts to creation of posts, the abovesaid decisions cannot be said to be correct in law. The Supreme Court rejected the S.L.Ps. summarily and these orders cannot be Understood as upholding the Judgments/orders on merit. If the appointments are made against posts as per the staffing pattern i.e. within the sanctioned strength, they cannot be said to be violative of Section 35 of the Act and illegal on the ground that the posts have not been sanctioned by the State Government provided, of course, the candidates possess the eligibility and suitability and the selection/appointment process was in conformity with Articles 14 and 16 of the Constitution.
32. In the above premises, the judgment of the learned single Judge rejecting the claim of the appellants on the ground that they were appointed without prior approval of the State Government as contemplated under Section 35 of the Act cannot be sustained . In the ordinary course in view of my conclusion that it is open to the State Government to consider the validity of appointments already made for the purpose of granting or refusing post facto approval. I would have considered asking the State Government to look into the claim of the appellants afresh. However, having regard to the fact that the appellants have continued in service for more than 17 years, I do not think it would be appropriate exercise of discretion to re-open the matter, after such a long lapse of time. In Direct Recruit Class-II Engineering Officers , Association v. State of Maharashtra : [1990]2SCR900 , a Constitution Bench of the Apex Court has held that where initial appointment is not made according to the rules but the appointee continues in service uninterruptedly for long period till regularisation of his service, the entire period as the period spent in service for the purpose of con-sequential benefits will be counted. The appellants are accordingly entitled to have their services regularised against the posts within the staffing pattern as applicable to the College.
12. Even on reading the aforesaid Full Bench judgment it will be clear that the appointments were made against posts as per the staffing pattern within the sanctioned strength and it was in that background held as not violative of Section 35 of the University Act. In the instant case the appointment made to the posts were beyond the sanctioned strength.
13. It will be evident on reading the aforesaid provision of law and in particular Section 35 and the ratio of the Full Bench judgment and Supreme Court judgments (supra) that in absence of any sanction for the post by the State Government the appointment made by the Governing Body is a nullity, and illegal and cannot be sustained in the eyes of law.
14. It is further relevant to clarify that the order off the Division Bench in the first round passed in C.W.J.C. No. 8929 of 1991 dated 1.10.1993 directing the Vice Chancellor to examine the dispute and take appropriate action of removal of the petitioners if they were working against un-sanctioned post and the same has attained finality, since the Vice Chancellor in compliance to the direction specifically held that the post were neither legally sanctioned nor the Governing Body had any authority or jurisdiction to appoint the petitioners and in any case the appointment was held to be in violation of Section 35 of the then Bihar Universities Act, 1976,
15. Considering the aforesaid facts and circumstances this Writ Petition being devoid of any merit is accordingly dismissed.