18 May 2020


Judgments

High Court of Patna

Jai Prakash Narain Singh and Ors. Vs. The State of Bihar and Ors.

MANU/BH/1065/2018

10.05.2018

Service

In exceptional cases, college/University authorities are competent to make appointment of eligible and suitable persons against such posts, without seeking prior approval of State Government

The present writ application is being filed to declare that, since these Petitioners were appointed in the year 1981 and joined on 27th July 1981 on the post of Assistant against sanctioned and vacant post in Nalanda College, as such their pay be fixed on present prevailing scale, since the date of their joining and arrears of salary be paid accordingly with interest @ 12% per year and they should be declared and treated as Senior to Respondent. In effect, the Petitioners have prayed that, their services be treated from the day they joined i.e., 27th July, 1981, on the post of Assistant and accordingly all benefits of pay etc. be fixed and further that, they be treated senior to the Respondents No. 9 to 11.

The appointment letter dated 25th June, 1981, states that the appointment was on purely temporary basis in anticipation of the sanction of the post by the State Government, the obvious next step should have been for the University/college to send the proposal to the State Government for sanctioning of the said posts. From the records, it transpires that, no such proposal was ever sent to the State Government, either by the college or the University and even the proposal sent under letter dated 22nd November, 1999, clearly did not include the posts on which the Petitioners were appointed, as in the letter itself, it has been indicated that, said proposal was in terms of the meeting of the Syndicate held in the year 1999 only, and moreover, the proposal to treat persons appointed only till 15th August, 1976, on the basis of interview held by a Selection Committee and approved by the Vice Chancellor, also indicates that, the Petitioners were excluded from such proposal to the State Government for being accepted as being appointed under the staffing pattern and deemed sanctioned principle.

The Court had also held that, though the college/University authorities are competent to make appointment of eligible and suitable persons against such posts, without seeking prior approval of the State Government, but only in exceptional cases, in exigency of service or situation, such provisional appointment can be made subject to approval of the State Government within the stipulated time frame. It was further held that, it was open to the State Government to examine the eligibility and suitability of even those who have already been appointed against the sanctioned posts as per the staffing pattern. Thus, the Court has approved that ordinarily, after prior approval only such post should be filled up but an exception has been carved out only when there is exigency of service or situation.

In the present case, if it is accepted that the posts were created prior to 16th March, 1976, then the appointments made in the year 1981 i.e., after almost five years, clearly shows that there was no exigency of service or situation, as the delay from creation of such posts and appointment, does not reflect any exigency of service or situation. Had the appointment been made in close proximity of the creation of the posts, it could have indicated exigency of service or situation but the appointment coming after almost five years cannot in any way be said to be either in the exigency of service or situation.

Thus, once the Court is unable to uphold the legality/validity of the very induction into the service of the Petitioners, the relief prayed by them for considering their period of service from the day they joined and accordingly to grant them seniority over Respondents No. 9 to 11, cannot be allowed. Accordingly, the writ petition stands dismissed.

Tags : Posts Seniority Grant

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