SUSHIL THAKUR Vs. T M BHAGALPUR UNIVERSITY, BHAGALPUR

JUDGEMENT

(1.) 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 undisnutedly he continued to work. 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 petitioners in that group of analogous cases preferred L.P.As. The LP.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.

(2.) 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 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/s. The State of Bihar & ors, 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 and the people were working on those posts.

(3.) 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 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.