Patna High Court
BiharversusUgrasen Jha
- Decided
- Disposal
- DISMISSED
Holding
The appeal is dismissed; the regularisation of the petitioner’s appointment is upheld.
Summary
Ugrasen Jha was appointed as a Counter Clerk on a temporary basis in 1982 by the Principal of H.P.S. College, an appointment made against an unsanctioned post and without competitive selection. He sought regularisation as a Class‑III employee, relying on a 1991 State Government notification and the fact that several similarly situated employees had been regularised by earlier court orders. The Single Judge allowed the writ, holding that Jha was part of the same staffing pattern and list forwarded by the University and that parity required extending the benefit of regularisation to him. The State of Bihar appealed, contending that the appointment was illegal under the Bihar State Universities Act, 1976 and contrary to Articles 14 and 16, and that the Supreme Court’s Uma Devi decision barred any regularisation of such appointments. The High Court rejected these arguments, distinguishing the present facts from the prohibited category, emphasizing the principle of equal treatment of similarly situated employees, and dismissed the appeal.
Issues considered
- Whether a temporary appointment made against an unsanctioned post without competitive selection can be regularised.
- Whether the principles laid down in Secretary, State of Karnataka v. Uma Devi and Ram Sewak Yadav v. State of Bihar preclude regularisation in the present case.
- Whether the doctrine of parity/equal treatment obliges the authorities to extend regularisation to an employee who is identically situated with those already regularised.
- Whether the delay in filing the writ petition bars relief on the ground of laches or acquiescence.
Legislation cited
- Bihar State Universities Act, 1976 — s. 10(6)
Subjects
- regularisation
- temporary appointment
- illegal appointment
- public employment
- Article 14
- Article 16
- equality
- parity principle
- Bihar State Universities Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1154 of 2024
In
Civil Writ Jurisdiction Case No.9047 of 2016
======================================================
The State of Bihar through the Principal Secretary, Higher Education, Bihar,
Patna.
... ... Appellant
Versus
1. Ugrasen Jha son of Late Bashishtha Narayan Jha, Resident of Village and
Post-Madhepur, Uttarbari Tola, P.S.-Madhepur, District-Madhubani.
2. The L.N. Mithila University Kameshwar Nagar, Darbhanga through the Vice
Chancellor.
3. The Vice Chancellor L.N. Mithila University Kameshwarnagar, Darbhanga.
4. The Registrar, L.N. Mithila University Kameshwarnagar, Darbhanga.
5. The Principal, H.P.S. College, Madhepur, District-Madhubani.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ravi Kumar, AC to AAG-13
For the Pvt. Respondents : Ms. Anju Jha, Advocate
For the University : Mr. Nadim Seraj, Advocate
Mr. Iqbal Asif Niazi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RANJAN KUMAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date : 25-06-2026
Heard learned counsel for the parties.
2. The present intra court appeal is directed against the
judgment and order dated 30.08.2024 passed by the learned Single
Judge in C.W.J.C. No.9047 of 2016, whereby the writ petition
filed by the writ petitioner (respondent no.1 herein) came to be
allowed.
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3. The brief facts giving rise to the present appeal are
that the writ petitioner (respondent no.1 herein) was appointed as a
Counter Clerk on a temporary basis on 10.11.1982 by the Principal
of H.P.S. College, Madhepura, in anticipation of creation of the
post by the State Government. Thereafter, by letter dated
16.06.1984, the Principal recommended regularization of his
services. Reliance was also placed on the State Government
notification dated 10.05.1991, whereby persons appointed prior to
10.05.1986, were permitted to continue in service and were to be
adjusted against future vacancies. During the period of his
engagement, the writ petitioner (respondent no.1 herein) was paid
nominal remuneration from time to time for the work performed
by him. Subsequently, he was called for an interview on
23.07.1997; however, his services were not regularized. Aggrieved
thereby, he instituted the aforesaid writ petition seeking absorption
on a Class- III post along with consequential service benefits.
4. Upon considering the pleadings and rival submissions
of the parties, the learned Single Judge, by the impugned judgment
and order dated 30.08.2024, allowed the writ petition. The
operative portion of the said judgment reads as follows:
“14. Upon reading Annexure-3, it appears that
the Principal of the College specifically
mentioned that the University, vide letter no.
2889-36521 C.D.S., dated 11.02.1981 and
16.02.1981, had recommended for sanction of 31
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Class-III and Class-IV posts as per the staffing
pattern of the State Government, but the request
of the University remained pending before the
State Government. The list of employees attached
with the letter contains the name of the petitioner
as well as the names of similarly situated
persons.
15. It is undisputed that the services of four
employees, appointed along with the petitioner in
similar manner, have been regularized by the
respondents on the basis of the decisions of this
Court, passed in CWJC Nos. 9215 of 1999 and
20099 of 2016.
16. Annexure-4 is the list of Class-III and Class-
IV employees prepared by the College under
deemed to be sanctioned as per the staffing
pattern and the said list contains the name of the
petitioner and other similarly situated employees,
who have been regularized pursuant to the orders
passed by this Court.
17. Considering the aforesaid facts and
circumstances and the fact that the petitioner
spent his entire life working in the College and
has also attained the age of superannuation, he
cannot be denied similar treatment as has been
given to the similarly situated Class-III
employees pursuant to the orders passed by this
Court. The similar benefit must be extended to
the petitioner and he cannot be singled out by the
respondents.
18. In any case, the petitioner has made out a
case of similar treatment as has been given to the
similarly situated ClassIII employee appointed in
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the similar manner way back in the year 1982,
1983 and 1984 etc. One of the Similarly situated
employee, namely, Subhash Chandra Mishra filed
a writ application (CWJC No. 20099 of 2016)
after the writ application filed by the petitioner
and his services has been regularized pursuant to
the order passed by this Court.
19. Having considered the aforesaid discussion,
this writ application is allowed in similar terms
to that of orders, passed in CWJC No.9215 of
1998 and CWJC No. 20099 of 2016. The
respondents are directed to pass consequential
order and to pay monetary benefits to the
petitioner from the date of his initial joining
expeditiously within a period of three months
from the date of receipt/production of a copy of
this order.”
5. Learned counsel appearing for the appellant submits
that the writ petitioner himself admitted that he was appointed on a
temporary basis against an unsanctioned post. His appointment
was made by the Principal of the College, who was not the
competent authority to make appointments to Class-III posts under
Section 10(6) of the Bihar State Universities Act, 1976.
6. It is further submitted that the appointment was made
without any advertisement, open competitive selection or
adherence to the mandate of Articles 14 and 16 of the Constitution,
rendering the very appointment illegal and void ab initio. It is
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argued that the learned Single Judge failed to appreciate the settled
principles laid down by the Full Bench of this Court in Ram
Sewak Yadav v. State of Bihar, 2013 (1) PLJR 964, governing
regularization of illegal appointments.
7. Learned counsel for the appellant further submits that
pursuant to the directions issued by this Court in CWJC No. 9809
of 1998 and analogous cases, the writ petitioner was afforded an
opportunity to participate in the selection process. Thereafter, 199
temporary employees were considered and 196 were regularized
against sanctioned vacant posts after granting due weightage to
their temporary service. The writ petitioner was not found eligible
for regularization and did not challenge the notification dated
24.02.2005, which has thus attained finality.
8. It is further submitted that the writ petition came to be
instituted only in the year 2016, nearly three decades after the
alleged appointment and when the petitioner was on the verge of
retirement. According to the appellant, such an extraordinary delay
itself disentitles the petitioner to any discretionary relief under
Article 226 of the Constitution.
9. Learned counsel for the appellant further submits that
the learned Single Judge erroneously relied upon the decisions
rendered in CWJC No. 9215 of 1998 and CWJC No.20099 of
2016. Those cases, it is argued, related to Lab In-charges who had
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been appointed against posts recommended by the University for
sanction and whose cases stood on an entirely different footing.
The writ petitioner, on the other hand, was appointed as a Counter
Clerk against an unsanctioned post, with no recommendation of
the University pending before the State Government.
10. Per contra, learned counsel appearing on behalf of
respondent no. 1 submits that the impugned judgment does not
warrant any interference in the present intra-Court appeal. It is
submitted that the learned Single Judge, upon due consideration of
the pleadings, the materials brought on record and the applicable
legal principles, has rightly allowed the writ petition. It is further
submitted that the findings recorded by the learned Single Judge
are based on a proper appreciation of the factual and legal aspects
of the matter and do not suffer from any error.
11. The limited issue which arises for consideration
before this Court is as to whether the learned Single Judge was
justified in directing regularization/absorption of respondent no. 1
despite his initial appointment having been made on a temporary
basis against an unsanctioned post by an authority allegedly not
competent to make such appointment and without following the
prescribed recruitment procedure.
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12. We have considered the rival submissions advanced
on behalf of the parties and carefully perused the materials
available on record.
13. The principal contention advanced on behalf of the
appellant is that respondent no.1 was appointed against an
unsanctioned post by the Principal of the College, who was not
competent to make such appointment under the provisions of the
Bihar State Universities Act, 1976. It is further submitted that the
appointment was made without any advertisement or open
competitive selection and, therefore, being contrary to the
constitutional mandate contained in Articles 14 and 16 of the
Constitution, no right to regularization could accrue in favour of
respondent no. 1. In support of the aforesaid submission, reliance
has been placed upon the Constitution Bench decision of the
Hon'ble Supreme Court in Secretary, State of Karnataka v. Uma
Devi (3) reported in (2006) 4 SCC 1, and the Full Bench decision
of this Court in Ram Sewak Yadav v. State of Bihar reported in
2013 (1) PLJR 964.
14. There can be no quarrel with the proposition of law
laid down in the aforesaid decisions. The Constitution Bench in
Uma Devi (3) (supra), has held that regularization cannot be
resorted to as a mode of recruitment and that appointments made
in violation of the constitutional scheme of public employment
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cannot ordinarily be regularized. The relevant part of the said order
reads as follows:
“43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of
our Constitution and since the rule of law is the core
of our Constitution, a court would certainly be
disabled from passing an order upholding a violation
of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14
read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment,
this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the
end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same
would come to an end when it is discontinued.
Similarly, a temporary employee could not claim to
be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed
in regular service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due process
of selection as envisaged by the relevant rules. It is
not open to the court to prevent regular recruitment at
the instance of temporary employees whose period of
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employment has come to an end or of ad hoc
employees who by the very nature of their
appointment, do not acquire any right. The High
Courts acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of
the constitutional scheme. Merely because an
employee had continued under cover of an order of
the court, which we have described as “litigious
employment” in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases,
the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be
possible for it to mould the relief in such a manner
that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his
employment would hold up the regular procedure for
selection or impose on the State the burden of paying
an employee who is really not required. The courts
must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs
by the State or its instrumentalities or lend themselves
the instruments to facilitate the bypassing of the
constitutional and statutory mandates.
44. The concept of “equal pay for equal work” is
different from the concept of conferring permanency
on those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection
as envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
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work and has laid down the parameters for the
application of that principle. The decisions are rested
on the concept of equality enshrined in our
Constitution in the light of the directive principles in
that behalf. But the acceptance of that principle
cannot lead to a position where the court could direct
that appointments made without following the due
procedure established by law, be deemed permanent
or issue directions to treat them as permanent. Doing
so, would be negation of the principle of equality of
opportunity. The power to make an order as is
necessary for doing complete justice in any cause or
matter pending before this Court, would not normally
be used for giving the go-by to the procedure
established by law in the matter of public
employment. Take the situation arising in the cases
before us from the State of Karnataka. Therein, after
Dharwad decision the Government had issued
repeated directions and mandatory orders that no
temporary or ad hoc employment or engagement be
given. Some of the authorities and departments had
ignored those directions or defied those directions
and had continued to give employment, specifically
interdicted by the orders issued by the executive.
Some of the appointing officers have even been
punished for their defiance. It would not be just or
proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the
Constitution permitting those persons engaged, to be
absorbed or to be made permanent, based on their
appointments or engagements. Complete justice
would be justice according to law and though it
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would be open to this Court to mould the relief, this
Court would not grant a relief which would amount to
perpetuating an illegality.
45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts
are swayed by the fact that the person concerned has
worked for some time and in some cases for a
considerable length of time. It is not as if the person
who accepts an engagement either temporary or
casual in nature, is not aware of the nature of his
employment. He accepts the employment with open
eyes. It may be true that he is not in a position to
bargain—not at arm's length—since he might have
been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment and
to take the view that a person who has temporarily or
casually got employed should be directed to be
continued permanently. By doing so, it will be
creating another mode of public appointment which is
not permissible. If the court were to void a
contractual employment of this nature on the ground
that the parties were not having equal bargaining
power, that too would not enable the court to grant
any relief to that employee. A total embargo on such
casual or temporary employment is not possible,
given the exigencies of administration and if imposed,
would only mean that some people who at least get
employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succour to them. After all, innumerable citizens of our
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vast country are in search of employment and one is
not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person
concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in which
he is temporarily employed or the interest in that post
cannot be considered to be of such a magnitude as to
enable the giving up of the procedure established, for
making regular appointments to available posts in the
services of the State. The argument that since one has
been working for some time in the post, it will not be
just to discontinue him, even though he was aware of
the nature of the employment when he first took it up,
is not one that would enable the jettisoning of the
procedure established by law for public employment
and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution.
...
53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa,
R.N. Nanjundappa and B.N. Nagarajan and referred
to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and
the employees have continued to work for ten years or
more but without the intervention of orders of the
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courts or of tribunals. The question of regularisation
of the services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and
in the light of this judgment. In that context, the
Union of India, the State Governments and their
instrumentalities should take steps to regularise as a
one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of
the courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers
are being now employed. The process must be set in
motion within six months from this date. We also
clarify that regularisation, if any already made, but
not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of
the constitutional requirement and regularising or
making permanent, those not duly appointed as per
the constitutional scheme.”
15. The Full Bench of this Court in Ram Sewak Yadav
(supra), while summarizing the legal position has reiterated that an
illegal appointment cannot be regularized, whereas an irregular
appointment may be considered for regularization only if the
conditions enumerated therein are satisfied. The relevant part of
the said order reads as follows:
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“We therefore sum up our conclusions and answer the
reference as follows: -
A) Uma Devi (supra) prohibits regularisation of daily
wage, casual, ad-hoc and temporary appointments, the
period of service being irrelevant;
B) An illegal appointment void ab-initio made contrary to
the mandate of Article 14 without open competitive
selection cannot be regularised under any circumstances.
C) Irregular appointments can be regularised if the
appointment was made by an authority competent to do
so, it was made on a vacant sanctioned post, in
accordance with Article 14 of the Constitution with equal
opportunity for participation to others eligible by
competitive selection and the candidate possessed the
eligibility qualifications for a regular appointment to the
post.
D) The appointment must not have been an individual
favour doled out to the appointee alone and the person
must have continued in service for over ten years without
intervention of any court orders.
The petitioners were appointed in temporary capacity by
a process contrary to Article 14 of the Constitution
without competitive selection as an individual favour
doled out to them. There is no material to hold that they
were appointed against vacant sanctioned post and
possessed qualifications for the same. They were
terminated before (Uma Devi) (supra) and have sought to
retain their status by virtue of Court proceedings and are
therefore not entitled to the benefits of paragraph 53. The
issue of any procedural irregularity for a finding of
forged appointment is therefore irrelevant.”
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16. The applicability of a precedent, however,
necessarily depends upon the factual matrix of the case before the
Court. A judgment is an authority for what it actually decides and
not for what may logically follow therefrom. Therefore, it becomes
necessary to examine whether the facts of the present case attract
the ratio laid down in the aforesaid decisions.
17. From the materials available on record, it appears
that the University, vide its letters dated 11.02.1981 and
16.02.1981, had recommended sanction of thirty-one Class-III and
Class-IV posts in accordance with the staffing pattern prescribed
by the State Government. Annexure-3 specifically records that
although the proposal remained pending before the State
Government, the name of respondent no. 1 was included in the list
of employees forwarded along with the proposal. Annexure-4 also
contains the list of Class-III and Class-IV employees prepared
under the staffing pattern, wherein the name of respondent no. 1
finds place.
18. It further appears from the record that several
employees whose names formed part of the very same list and
whose appointments were made during the same period and under
identical circumstances have already been granted regularization
pursuant to the judgments rendered by this Court in CWJC No.
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9215 of 1999 and CWJC No. 20099 of 2016. The appellants do not
dispute the fact that the said judgments have attained finality and
have been implemented. Significantly, no material has been
brought on record to demonstrate any distinguishing feature
between the case of respondent no. 1 and those employees who
have already been extended the benefit of regularization.
19. In the aforesaid factual background, the reliance
placed by the appellants upon Ram Sewak Yadav (supra) does not
advance their case. The learned Single Judge has not directed
regularization solely on the basis of long continuance in service.
The impugned judgment proceeds on the finding that respondent
no. 1 forms part of the same staffing pattern, his name figures in
the same proposal forwarded by the University and, more
importantly, employees appointed under identical circumstances
have already been granted regularization pursuant to earlier
judgments of this Court. Thus, the present case rests on a factual
footing materially different from the category of cases which the
Full Bench intended to prohibit.
20. The principle of parity also assumes significance in
the facts of the present case. The Hon'ble Supreme Court in State
of Uttar Pradesh v. Arvind Kumar Srivastava reported in (2015)
1 SCC 347, has held that where relief has been granted to one set
of employees and other employees are identically situated, the
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State is ordinarily bound to extend the same benefit unless it is
able to establish a valid distinguishing feature. The appellants have
failed to point out any such distinguishing circumstance in the
present case. The relevant part of the said order reads as follows:
“22.1. The normal rule is that when a particular set
of employees is given relief by the court, all other
identically situated persons need to be treated alike
by extending that benefit. Not doing so would amount
to discrimination and would be violative of Article 14
of the Constitution of India. This principle needs to
be applied in service matters more emphatically as
the service jurisprudence evolved by this Court from
time to time postulates that all similarly situated
persons should be treated similarly. Therefore, the
normal rule would be that merely because other
similarly situated persons did not approach the Court
earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-
recognised exceptions in the form of laches and
delays as well as acquiescence. Those persons who
did not challenge the wrongful action in their cases
and acquiesced into the same and woke up after long
delay only because of the reason that their
counterparts who had approached the court earlier
in time succeeded in their efforts, then such
employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated
persons be extended to them. They would be treated
as fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss
their claim.
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22.3. However, this exception may not apply in those
cases where the judgment pronounced by the court
was judgment in rem with intention to give benefit to
all similarly situated persons, whether they
approached the court or not. With such a
pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all
similarly situated persons. Such a situation can occur
when the subject-matter of the decision touches upon
the policy matters, like scheme of regularisation and
the like (see K.C. Sharma v. Union of India). On the
other hand, if the judgment of the court was in
personam holding that benefit of the said judgment
shall accrue to the parties before the court and such
an intention is stated expressly in the judgment or it
can be impliedly found out from the tenor and
language of the judgment, those who want to get the
benefit of the said judgment extended to them shall
have to satisfy that their petition does not suffer from
either laches and delays or acquiescence.”
21. We also find that the learned Single Judge has
recorded a categorical finding that the names of respondent no. 1
and the employees who have already been regularized form part of
the same list prepared under the staffing pattern and that
respondent no. 1 stands on the same footing as those employees.
These findings are borne out from the materials available on
record and have not been shown to be either perverse or contrary
to the evidence.
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22. In such circumstances, once similarly situated
employees have been extended the benefit of regularization
pursuant to judicial orders which have attained finality and have
been implemented by the appellant, respondent no. 1 cannot be
denied the same benefit in the absence of any intelligible
differentia. To hold otherwise would amount to permitting unequal
treatment amongst equals, which is impermissible in law.
23. Accordingly, we find no infirmity in the view taken
by the learned Single Judge warranting interference in the present
intra-Court appeal. The issue is answered against the appellants.
24. Accordingly, the present appeal stands dismissed.
25. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J.)
(Ranjan Kumar Jha, J.)
Gaurav Kumar,
Atul/-
AFR/NAFR A.F.R.
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Uploading Date 01.07.2026
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