Shankar Prasad vs The Vice Chancellor Patna University & Ors.

Heard the learned counsel for the parties.

The present writ petition has been filed for the following reliefs:-

The brief facts which are essential for adjudication of the present writ petition are that the petitioner was appointed as a daily-wage employee vide letter no.188 dated 13.08.1984 issued under the signature of the Principal, Women’s Training College, Patna on the post of Peon at Rs.9/-per day. On 21.12.1988 the Principal, Women’s Training College, Patna sent names of six persons to the University, wherein the name of the petitioner figured at Serial no.3 and he was appointed on a non-sanctioned post on a temporary basis. Subsequently, vide letter dated 17.11.1988 a recommendation was sent by the Principal, Women’s Training College, Patna for regularization of the services of the petitioner. In the said recommendation, the educational qualification of the petitioner was mentioned as Class-VII pass. The petitioner submitted a representation on 17.12.1998 before the Vice-Chancellor, Patna University, Patna through the Principal, Women’s Training College, Patna, for considering his case for regularization on the post of Peon, on account of two posts being vacant and sanctioned. He also stated therein that against the two posts, apart from the petitioner one Bihari Ram is working, however, the University has regularized the services of one Madhuri Devi, who was working on the post of Sweeper and was only Class-III pass. Subsequently, vide letter no.01 dated 09.01.1999 issued under the signature of the Principal, Women’s Training College, Patna, addressed to Deputy Registrar, Patna University, Patna a recommendation was made for regularization/absorption of Class-IV employees working in the College. In the said letter, it was written that the petitioner is working continuously since 13.08.1984 and one person namely Bihari Ram has already been regularized in terms of seniority, therefore, the service of the petitioner can be regularized. It was also stated in the said letter that the post of Class-IV employee is already vacant on account of retirement of Mahadev Ram. Vide letter dated 29.05.1999 issued under the signature of the Registrar, Patna University, addressed to the Principal, Women’s Training College, Patna a report was called for with regard to the claim of the petitioner and pursuant thereto the Principal, Women’s Training College, Patna vide her letter dated 02.12.2006 informed that on account of retirement of two persons namely Mr. Sayeed Khan and Mr. Mahadeo Ram, the claim of Bihari Ram and the petitioner was fit for consideration/regularization. It was further mentioned that two persons below in the seniority list have been regularized, however, the case of the petitioner was not considered. It is further case of the petitioner that the petitioner filed a writ petition bearing C.W.J.C. No.2640 of 2005 and when the University authorities came to know about the filing of the writ petition by the petitioner, vide letter dated 02.12.2006 a report was submitted by the Principal of the College, before the Registrar, Patna University, wherein all the facts related to the case of the petitioner were explained. The writ petition filed by the petitioner was heard along with its analogues cases and vide judgment and order dated 13.04.2007, the writ petition was disposed of with a direction to the Vice Chancellor of the concerned Universities to constitute a Three Men Committee and to take decision. Pursuant to the orders/directions issued by this Hon’ble Court on 13.04.2007, a Committee was constituted by the Patna University. The claim of the petitioner was also considered by the Committee. The Committee found that the petitioner was appointed in 1984. His services were terminated in 2001 by the then Principal of the College, for his unauthorized absence. It was also recorded that the petitioner was again allowed to work from November 2003 and finally the Committee came to the conclusion that the appointment of the petitioner since November 2003 seems to be illegal and as such his case was not found fit for regularization.

The petitioner being aggrieved with the order passed by the Committee on 25.11.2008, on his claim, along with the claim of others, assailed the same by filing a writ petition before this Hon’ble Court. The writ petition filed by the petitioner was numbered as C.W.J.C. No.10541 of 2011. The writ petition was finally heard and disposed of by an Hon’ble Single Judge of this Court vide order dated 30.07.2018 whereby the Hon’ble Single Judge directed the University to take steps for regular appointment, against the vacancy arising on account of death of Madhuri Devi, within a reasonable period i.e. six months from the date of receipt/production of a copy of the order and to consider the case of the petitioner for regular appointment, after relaxing the age and giving weightage for the period, the petitioner has worked. In terms of the directions given by this Hon’ble Court vide order dated 30.07.2018, when no action was taken by the University, the petitioner was constrained to file a contempt petition bearing M.J.C. No.3870 of 2019. During pendency of the contempt petition filed by the petitioner, the University came out with an advertisement, which was published in Hindi Daily Newspaper Prabhat Khabar on 11.05.2023, wherein one post of Sweeper was advertised. The educational qualification for the said post was fixed as class 10^th pass and the candidate was required to be efficient in cycle driving. The maximum age for general category candidate was fixed as 37 years and for extremely backward class it was fixed as 40 years. Similarly, for the woman candidate’s the maximum age was fixed as 40 years and for the candidates belonging to Scheduled Caste and Scheduled Tribe, the maximum age was fixed as 42 years. It was further mentioned in the advertisement that relaxation in age will be granted to the petitioner. The contempt petition filed by the petitioner was finally heard by an Hon’ble Single Judge of this Court and vide order 20.03.2024, the Hon’ble Single Judge, while recording the orders passed by the Hon’ble Writ Court and keeping in view the advertisement published during the intervening period, in paragraph no.03 recorded that each and every word has been taken up by the opposite party to deny the job to the petitioner inasmuch as an advertisement has been issued in which amongst the other, educational qualification has been fixed as 10^th pass. Admittedly the petitioner is Class-VIII^th pass. Though, the writ Court had diluted the age criteria for the petitioner, considering that he was working for a long time, the educational part was missing and in that background, this Court is handicapped in granting any relief to the petitioner. He is well advised to challenge the said advertisement and/or ask for his appointment by way of writ petition. Liberty was granted to the petitioner to assail the said advertisement. Being aggrieved with the said advertisement, the petitioner has preferred the present writ petition.

The learned counsel for the petitioner submits that the petitioner was working on a Class-IV post since 1984. Although, he is 8^th pass and was at Serial no.3 of the seniority list of Class-IV employees of the Women’s Training College, Patna, who were working on non-sanctioned post as daily wage employee, even then a person junior to the petitioner namely Madhuri Devi was recommended and regularized as a regular employee of the College. He submits that subsequently two other persons junior to the petitioner were also regularized, however, the petitioner was not considered by the University authorities for the reasons best known to them. On the representation filed by the petitioner no action was taken. The petitioner was constrained to file a writ petition, however, the said writ petition was heard with other writ petitions and was disposed of by this Hon’ble Court with a direction to the Universities concerned to constitute a Three Men Committee and to decide the claim of the concerned employee/petitioner. The claim of the petitioner was considered by the Three Men Committee constituted by the Patna University, along with other employees, however, the Three Men Committee rejected the claim of the petitioner. He further submits that the petitioner again approached this Hon’ble Court by filing a writ petition. An Hon’ble Single Judge of this Hon’ble Court vide order dated 30.07.2018 directed the University to publish advertisement for regular appointment and while directing for publication of advertisement, the Hon’ble Single Judge directed that the petitioner would be getting age relaxation and will be given weightage for the period, during which he had worked in the University. The University came out with an advertisement and deliberately, to negate the claim of the petitioner, fixed the educational qualification as class 10^th pass, although the University is well aware that the petitioner is a Class-VII^th pass. He submits that the petitioner fulfills all the requisite qualification/criteria for being appointed on a Class-IV post of Sweeper, except that he is Class-VII^th pass, even then the University has fixed the educational qualification as class 10^th pass. He submits that once this Hon’ble Court was pleased to relaxe the age criteria in the case of the petitioner and directed the University to give weightage to him for the period he had worked, it can be construed that the educational qualification in case of the petitioner has also been relaxed. He submits that the action of the University in denying employment to the petitioner is in violation of the order dated 30.07.2018 passed in C.W.J.C. No.10541 of 2011. The learned counsel for the petitioner submits that it is an admitted fact that the petitioner has not worked after 2001.

Per, contra the learned counsel appearing on behalf of the Patna University, while referring to the counter affidavit would submits that pursuant to the orders passed by this Hon’ble Court in the contempt petition filed by the petitioner, vide letter no. AC/Legal/112 dated 11.01.2023 and Vide letter no. Est./-282 dated 11.03.2023 issued under the signature of the Registrar of the University, guideline was sought for from the Additional Chief Secretary, Department of Education, Government of Bihar, Patna. He submits that in terms of Sections 35 and 49 of the Patna University Act, 1976, the permission for creation of post and approval of budget has to be obtained from the State Government and the same is mandatory. Pursuant to the directions of the State Government and the directions given by this Hon’ble Court in the writ petition, an advertisement was published on 11.05.2023 on account of the vacancy caused upon death of Madhuri Devi, who was working on the post of Sweeper in the Women’s Training College at Patna. Altogether 39 applications were received. A Selection Committee was constituted vide office order contained in memo no. Est./1691 dated 09.01.2024 for scrutiny of the application form. The result was declared on 21.02.2024, however, the petitioner was found ineligible on account of his not fulfilling the requisite educational qualification.

The learned counsel for the University, while referring to the Statutes framed by the Hon’ble Chancellor with regard to the service condition of the Class-III and Class-IV employees, which has been notified on 04.03.2014, would submit that the minimum qualification for class-IV post has been fixed as Class 10^th pass and admittedly the petitioner is a Class-VIII^th drop out. He submits that since the petitioner does not fulfill the required educational qualification, his case was not considered for being appointed, in terms of the advertisement issued by the University on 11.05.2023. The learned counsel for the University submits that although results have been published, pursuant to advertisement dated 11.05.2023, however, no appointments have been made.

Having considered the rival submissions and after going through the records, it appears that the petitioner was appointed as a daily wage employee by the then Principal of the Women’s Training College, Patna, which is within the jurisdiction of the Patna University. It is an admitted fact that the petitioner is a Class-VII^th pass and while considering the cases for regularization of the employees, one Madhuri Devi, who was Class-III pass was regularized by the University, although, she was junior to the petitioner in the seniority/merit list of the Class-IV employees, who were working on daily wage. The petitioner being aggrieved with the action of the University represented before the authorities of the University. Subsequently, he filed a writ petition, which was disposed of by the then Hon’ble the Chief Justice vide his order dated 13.04.2007, whereby a direction was issued to the University concerned to constitute a Three Men Committee and to consider the cases of the petitioner and other similarly situated employees. In terms of the directions given by this Hon’ble Court, the Patna University also constituted a Three Men Committee wherein the case of the petitioner was also considered and finally his case was rejected by the Committee, since he was not found fit for regularization. The petitioner filed a writ petition bearing C.W.J.C. No.10541 of 2011. The writ petition filed by the petitioner was disposed of vide order dated 30.07.2018 passed by an Hon’ble Single Judge of this Court, whereby a direction was issued to the Patna University to advertise the post, which had fallen vacant on account of death of Madhuri Devi, within six months and directed the University to consider the case of the petitioner for regular appointment on the said post, after relaxing the age and by giving weightage for the period, the petitioner had worked. The petitioner was constrained to file a contempt petition for noncompliance of order dated 30.07.2018 passed in C.W.J.C. No.10541 of 2011. During pendency of the contempt petition, the University came out with an advertisement for appointment on one post of Sweeper, wherein the educational qualification was fixed as Class 10^th pass. It is an admitted fact that the petitioner is Class-VII^th pass and therefore, he does not fulfils the requisite educational qualification fixed by the University in the advertisement of being Class 10^th pass. Since the University came out with an advertisement on 11.05.2023, the contempt petition filed by the petitioner was disposed of, giving liberty to the petitioner to assail the said advertisement dated 11.05.2023. From perusal of the counter affidavit filed on behalf of the State and the University, it would transpire that in terms of the Statute framed by the Hon’ble Chancellor on 04.03.2014, with regard to the Service condition of Class-III and Class-IV employees of the University, the minimum educational qualification for being appointed on Class-IV post has been fixed as Class 10^th pass. In terms of the said minimum educational qualification, the advertisement was issued by the University, wherein the minimum educational qualification was fixed as 10^th pass. The University was very much aware that the Hon’ble Single Judge, while disposing of the writ petition of the petitioner had directed for relaxation of age in favour of the petitioner and to give him weightage for the period he had worked, however, no specific direction/relaxation was given by this Hon’ble Court for relaxation of his educational qualification. Accordingly, the University did not consider the case of the petitioner for appointment on regular basis, on account of him not fulfilling the minimum educational qualification.

In the considered opinion of this Court, the age and qualification for appointment has undergone lot of change and it has changed from time to time. When the petitioner was appointed on Class-IV post, the educational qualification for being appointed on regular basis at that time was Class 6^th pass. The petitioner admittedly was Class-VII^th pass. When this Hon’ble Court in the writ petition filed by the petitioner had directed for consideration of the case of the petitioner by giving relaxation for age and for giving weightage for his work experience, it would mean that the educational qualification for the petitioner, having working experience has also been relaxed. Direction for considering the working experience, automatically covers the relaxation of age, since, the petitioner was working prior to coming into force of the Statute, whereby the minimum educational qualification for appointment on Class-IV was post has been fixed as Class 10^th pass. The Statute has been notified on 04.03.2014. It is an admitted fact that the petitioner is having lesser qualification, then what is required by the University, as per the Statute notified on 04.03.2014, however, the work experience, which he has gained on account of his working on the post covers the qualification, which was required in the case of the petitioner. The direction to consider the work experience, shall automatically mean that the Court had relaxed his educational qualification. For better consideration of the case, this Court would like to refer to the Statute which was notified on 04.03.2014 with regard to the service condition of the Class-III and Class-IV employees of the Universities and Colleges in the State of Bihar. Rules 17 and 18 thereof are quoted herein below:

From the Rules referred above, it would transpire that in Rules 17 & 18 there is a saving clause and it gives power to the University and the State Government to issue direction, in case of any problem arising out of implementation of the Rules. In the opinion of this Court, the above Rules covers the direction issued by Courts also. This court finds that the petitioner has been forced to agitate his matter before one forum or the other, since the date of his appointment, due to the discriminatory treatment given to him by the University. He is continuously before this court for enforcement of his rights.

In view of the consideration made above, this Court is of the view that the advertisement issued by the University is defective and therefore, the clause related to educational qualification of being 10^th pass, so far it relates to the petitioner is not sustainable. The University authorities are hereby directed to consider the case of the petitioner for being appointed on regular basis, after giving relaxation of age, educational qualification and giving weightage for his working experience and to then prepare the merit list accordingly. If after giving the relaxation of educational qualification to the petitioner, he comes within the zone of consideration, the University will issue formal order with regard to appointment within a period of three months from the date of receipt/production of a copy of the order.

With the aforementioned directions, the writ petition is allowed/disposed of.

Pending applications, if any, shall also stand disposed of.