1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 549 of 2010 with W.P.(S) No. 7491 of 2012 Chandreshwar Prasad Sinha son of late Kedarnath Sinha, resident of Village- Sudna Bypass Road, P.O. & P.S-Daltonganj, District Palamau. ...... Petitioner ( in W.P.(S) No. 549 of 2010) Chintamani Karmhe son of Digambar Panda, resident of village Digambar Ashram Mariharbari, P.O. & P.S. Deoghar, District Deoghar. …… Petitioner ( in W.P.(S) No. 7491 of 2012) Versus 1. The State of Jharkhand.
2. The Secretary, Human Resources Department, Govt. of Jharkhand, Project Building, Post Office & Police Station-Dhurwa, District-Ranchi, Jharkhand.
3. Director, Higher Education, Human Resources Department, Govt. of Jharkhand, Project Building, Post Office & Police Station-Dhurwa, District- Ranchi, Jharkhand.
4. Vice Chancellor, Vinoba Bhave University, Hazaribagh, University Campus, Hazaribagh.
5. Registrar, Vinoba Bhave University, Hazaribagh.
6. Principal, Sanskrit Upshashtri College, Daltonganj, Palamau. …. Respondents ( in W.P.(S) No. 549 of 2010) 1. The State of Jharkhand.
2. The Secretary, Human Resources Department, Govt. of Jharkhand, Project Bhawan, Dhurwa, Ranchi-4.
3. Director, Higher Education, Human Resources Department, Govt. of Jharkhand, Project Bhawan, Dhurwa, Ranchi-4.
4. Vice Chancellor, Vinoba Bhave University, Hazaribagh, University Campus, Hazaribagh.
5. Registrar, Vinoba Bhave University, Hazaribagh.
6. Principal, Vaidnath Kamal Kumari Sanskrit College, P.O. and P.S. Deoghar, Deoghar. …. Respondents ( in W.P.(S) No. 7491 of 2012) --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioners : Mr. Saurabh Shekhar, (in W.P.(S) No. 549 of 2010) : Mr. Rashmi Kumari, (in W.P.(S) No. 7491 of 2012) For the Respondent : Mrs. Indrani S. Choudhary, Adv. CAV on:
25. h November, 2016 Pronounced on 25/07/2017 Per Pramath Patnaik, J.: Since the reliefs sought for in both the writ petitions are identical, with the consent of the respective counsels, both the writ petitions are heard together and are being disposed of by this common order/judgment.
2. In the aforesaid writ petitions the petitioners have precisely prayed for enhancement of the age of superannuation from 60 years to 62 years in view 2 of the amended provision of Rule 67 (A) of the Universities Act, 2005 and the petitioners have inter alia prayed for quashing the order dated 01.04.2009 (Annexure-8) and order dated 20.04.2013 (in W.P.(S) No.549 of 2009) and for quashment of the letter dated 05.12.2012 vide Annexure-6 (in W.P.(S) No.7491 of 2012).
3. The brief facts, as disclosed in W.P.(S) No.549 of 2010 is that initially petitioner was appointed in Sanskrit Upshashtri College, Daltonganj, Palamu on 14.01.1981 having Master degree in History on the date of appointment. Since at that time, the institute was not affiliated to University, the designation of the petitioner was Assistant Teacher. The Sanskrit Upshashtri College, Daltonganj, Palamu was taken over by the Kameshwar Singh Darbhanga Sanskrit University, Darbhanga vide letter dated 02.03.1981 as evident from Annexure-3 to the writ petition. After bifurcation of the erstwhile State of Bihar and creation of the State of Jharkhand, all institutions like that of petitioner was brought under the Vinoba Bhave University, Hazaribagh vide letter dated 27.08.2001, vide Annexure-5 to the writ petition. The petitioners got salary from the Vinoba Bhave University, Hazaribagh. In the year 2005 an amendment was brought to the University Act, enhancing the age of retirement from 60 to 62 years, for which the petitioner applied and the application of the petitioner was rejected on 01.04.2009 passed by the Principal of the petitioner’s institute vide Annexure-8 to the writ petition, which is impugned in this writ petition. During pendency of the writ petition, the petitioner retired on 31.03.2010 on attaining the age of superannuation of 60 years. During pendency of the writ petition, an interim order was passed on 26.04.2010 to decide the case of the petitioner as to whether the institution where the petitioner was working as teaching staff, is or is not a college within the meaning of Section 2(f) of the Jharkhand State Universities Act, 2000. In pursuance to the said interim order, final order dated 24.04.2013 has been passed vide Annexure-14 to the writ petition, which is under challenge in the instant writ application.
4. The brief facts, as narrated in W.P.(S) No.7491 of 2012, is that, petitioner was appointed on 01.05.1980 as a Lecturer in Vaidnath Kamal Kumari Sanskrit College, Deoghar. The services of the petitioner was approved in the year 1984. The College of the petitioner was affiliated to Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. The appointment of the petitioner was against the sanctioned and regular post of 3 Lecturer. After creation of the State of Jharkhand, the respondent no.2 vide letter dated 27.08.2001 issued a notification whereby Sanskrit College, Ayurvedic and Homeopathy College are to be regulated by the Vinoba Bhave University. The Vice Chancellor of the Vinoba Bhave University, Hazaribagh issued a letter to the Director, Higher Education, Human Resources Development Department, Jharkhand whereby the sanction for Shastri (Pratistha) Hon’s 3 years course has been granted, whereafter vide letter dated 05.12.2012 vide Annexure-6 issued by respondent no.6, the petitioner has been informed that he is going to retire at the age of 60 years, which is impugned in this writ petition. Thereafter, the petitioner submitted representations to the Vice Chancellor, Vinoba Bhave University, Hazaribagh vide Annexure-7 series. During pendency of the writ petition, the petitioner has filed amendment application bearing I.A. No.1135 of 2016 annexing gazette notification dated 26.12.2012 wherein the age of superannuation for teaching staff has been enhanced to 65 years.
5. Controverting the averments made in the writ application, counter affidavit has been filed by respondent nos. 4 and 5 (in W.P.(S) No.549 of 2010) wherein it has been submitted that Sanskrit Upsashashtri College, Daltonganj, Palamau was originally Higher Secondary School. It was subsequently classified as Intermediate College. It has further been stated that on perusal of Annexure-1 (the appointment letter), it is apparent that the name of the college in question in 1981 was ‘Sanskrit Higher Secondary School’ (Uchhatar Madhyamik Vidyalaya). Similarly letter issued by Registrar, Kameshwar Singh Darbhanga Sanskrit University (Annexure-2) revealed that the said College in question has been addressed as Sanskrit School (Vidyalaya), Daltonganj and also the designation of the teachers is Sahayak Sikshak (Assistant Teacher) not Lecturer. It has further been stated that Section 67(A) of the Jharkhand State Universities Act 2000 (in short the Act) is not applicable in the instant case. It is an Intermediate College and the petitioner at no point of time has been appointed as Lecturer nor he possesses requisite qualification to be appointed as Lecturer as he obtained only 48% marks in M.A, which is not the eligibility criteria of a person being appointed as Lecturer in a University College. It has further been stated that Upshastri is equivalent to Intermediate or +2 course. The age of superannuation of teacher of Sanskrit school is 60 years. In this respect the letter dated 11.09.2007 issued under the signature of the Registrar of 4 Kameshwar Singh Darbhanga Sanskrit University is relevant in order to show the age of superannuation as evident from Annexure-A to the counter affidavit. It has further been stated that the office memorandum issued by the Government of India, Ministry of Personnel, Public Grievance and Pension (Department of Personnel and Training) dated 04.05.1998 showing that the examination of Upshastri held by Kameshwar Singh Darbhanga Sanskrit University is equivalent to Intermediate courses. In this connection, a general certificate dated 02.12.2008 has been given by the Registrar, Vinoba Bhave University, Hazaribag as per Annexure-B to the counter affidavit. Therefore, the Principal of the College-respondent no.6 has rightly issued letter dated 01.04.2009 (Annexure-8) intimating the petitioner his date of retirement.
6. From the aforesaid pleadings, the issue that falls for determination, as to whether petitioners are entitled for enhancement of age as per the amended provisions of Section 67(A) of the Jharkhand State Universities Act 2000? 7. Before adverting to determine the aforesaid issue, it would be apposite to refer to relevant provisions of the Jharkhand State Universities Act, 2000 i.e. Section 2(v), Section 2(f), Section 6(5) and Section 67(A) of the Universities Amendment Act, 2012. “Section 2(v). “Teacher” includes Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other person imparting instruction in department, college or institute maintained by the University; Section 2 (f) “College”means an institution maintained or controlled by the University or maintained by the State Government in which instruction is given subject to the provisions contained in clause (16) of Section 4 to the students of the University upto or below the post- graduate standard under conditions prescribed in the States: Provided that till separate arrangement is made for Intermediate Education, teaching of this standard also shall continue to be imparted in the same College, under the general direction of the Intermediate Education Council and that College shall be deemed to be an institution imparting education of Intermediate standard also. 5 Section 6(5)(i) It shall not be lawful for the University or for any College to maintain classes for the purposes of preparing students for admission to the University. (ii) In the faculties of Arts, Science and Commerce, the University shall prescribe the syllabus, conduct teaching, hold examinations and publish results of graduate and above standards: Provided that until separate arrangement for Intermediate Education is made, the college shall under the general direction of the Bihar Intermediate Education Council continue the teaching work etc. of this standard. (iii) The graduate course shall be of three years’ duration. Section 67(a) The date of retirement of teachers of University or college and those officers declared equivalent to them by the statute of the University, with effect from the date of notification of this Act in the official Gazette, shall be the date on which he/she attains the age of sixty two years; the date of retirement of non- teaching employee shall be the date on which he/she attains the age of the sixty years”. Shall be substituted by the following provisions namely:- “The date of retirement of teachers of University or college and those officers declared equivalent to them by the statute of the University, with effect from the date of notification of this Act in the official Gazette, shall be the date on which he/she attains the age of sixty five years; the date of retirement of non-teaching employee shall be the date on which he/she attains the age of sixty years.”
8. From perusal of Section 2(f) of the Act, which prescribes about the management and control of the University as deciding fact or to test whether an institution is a college or not. Further the proviso to the Section, which is a substantial provision in itself lays down how the institution imparting education of intermediate standard will be called college, however, the syllabus in this regard will have to be decided by the concerned academic council. Section 6(5) complements what has been essentially said in Section 2(f) of the Act. Amended Section 67(A) speaks of giving the benefit of enhancement of age of superannuation. Section 2(v)- the term teacher has been defined under Section 2(v) of the Act, to include all classes of teachers without any differentiation of their degrees/qualifications /posts/nomenclature. 6 9. Learned counsel for the petitioner (in W.P.(S) No.549 of 2010) by referring to aforesaid provisions has submitted with vehemence that the petitioner’s case is to be decided on the basis of Section 2(f) of the Act, as has been mandated by the Court in interim order dated 26.04.2010 vide Annexure-13 to the writ petition. Learned counsel for the petitioner further submits that Annexure-5 of the writ petition, which relates to Control of the University over registration, conducting examination, deciding syllabus etc. of the Institutions. Therefore, the college of the petitioner is exclusively managed and controlled by the University. Further, counsel for the petitioner submits that assertion of the petitioner that the University is the disciplinary authority of the College, has not been controverted by the respondents. It has further been submitted that payment of salary of the petitioner has been done by the University as would be evident from Annexure-9. Learned counsel for the petitioner submits that Section 67(A) extend the benefit of enhancement of age to all the teachers and the term teacher has been defined under Section 2(f) of the Act, which includes all classes of teachers. Learned counsel for the petitioner further submits that proviso 2(f) is a substantial provision, which clearly deals with imparting education of Intermediate standard and are under the control and management of the University which are to be called as college. In order to fortify his argument, learned counsel for the petitioner has referred to the judgment of the Hon’ble Apex Court reported in (1985)1 SCC591(S. Sundaram Pillai and Ors. vs. V.R. Pattabiraman and Ors.), Para-43(3). Learned counsel for the petitioner further submits that decision reported in W.P.(S) No.399 of 2015, Parsuram Pathak vs. State of Jharkhand and Ors, and C.W.J.C. No.11271 of 1992, Narendra Narayan Prasad vs. State of Bihar and Ors. (Annexure-11 to the writ petition) are exception to Article 141 and cannot be made applicable to the petitioner’s case. In this regard, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in AIR1989SC38(para-11), AIR1975SC907(para-7), AIR1988SC1531 (1991) 4 SCC139(para-40-41) and AIR2001SC2293(para-20).
10. Learned counsel for the petitioner (in W.P.(S) No.7491 of 2012) has vociferously submitted that the case of the petitioner is squarely covered by the judgment dated 09.09.2011 passed in C.W.J.C. No.6534 of 2009 and order dated 27.04.1994 passed in C.W.J.C. No.11271 of 1992. Learned counsel further submits that the lecturer and management of the V.B. 7 University are getting salary from V. B. University, Hazagibag. Therefore, as per the amended provision of Section 67(A), the age of superannuation has been enhanced from 60 to 62 years and, subsequently, has been enhanced to 65 years vide gazette notification dated 26.12.2012 as the age of the petitioner ought to have been enhanced to 65 years.
11. Learned counsel for the respondents-University has assiduously submitted that the petitioner (in W.P.(S) 549 of 2010) was an Assistant Teacher and no document has been produced by the petitioner regarding absorption of the petitioner as Lecturer. The College, in which the petitioner was continuing as Assistant Teacher i.e. Sanskrit Upshashtri College, Daltonganj, Palamu has been taken over by the Kameshwar Singh Darbhanga Sanskrit University, Darbhanga vide letter dated 02.03.1981, so up to level of intermediate, education was being imparted in the said college. Therefore, the petitioner by no stretch of imagination can come within the definition of ambit and scope of lecturer, so as to avail enhancement of age of superannuation as per the provision of the Section 67(A) of the Jharkhand Universities Act, 2000.
12. After bestowing my anxious consideration to the rivalized submissions of the respective counsels and on perusal of the records, I am of the considered view that the College of the petitioner (in W.P.(S) No.549/2010) i.e. Sanskrit Upshashtri College, Daltonganj, Palamu was imparting education up to Intermediate level and so it never got upgraded to Bachelor Degree i.e. Shastri (Pratistha). No document has been filed by the petitioner indicating the absorption of the petitioner as Lecturer. The petitioner has never been appointed as Lecturer. Accordingly, it cannot be held that the college of the petitioner will be governed by the Jharkhand Universities Act and Section 67(A) of the Universities Amendment, 2005 shall not apply to the petitioner.
13. So far the petitioner in W.P.(S) No.7491 of 2012 is concerned, it is brought on record that the petitioner was appointed as Lecturer in Vaidnath Kamal Kumari Sanskrit College, Deoghar and services of the petitioner was approved in the year 1984 and the College of the petitioner was affiliated to Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. The petitioner worked against regular and sanctioned post and after bifurcation of the State, respondent no.1 issued memo dated 27.08.2001, whereby services of the petitioner was to be regulated under the Vinoba Bhave 8 University, Hazaribagh. On 14.11.2006 Vice Chancellor, V.B. University issued a letter to Director, Higher Education (Human Resources Development Department) Jharkhand, mentioning therein that the Shastri (Pratistha) course has been granted. Annexure -4 and 4/1 to the writ petition shows that the salary to the petitioner has been paid by the V.B. University, Hazaribag and Annexure-9 to the writ petition also indicates that the letter no.002/2007 indicates the approval of the degree level (Shastri) course. Annexure-12 to the writ petition, the letter issued by the V.B. University shows that the said college is constituent college and the petitioner has been appointed as teacher in the said College.
14. In order to appreciate the contentions made in the writ applications, it would be apposite to refer to Section 35 of the Bihar State University Act, 1976, which is quoted herein below: Section 35. No post for appointment shall be created without the prior sanction of the State Government.- 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; Provided that the State Government may, by an order, revise the pay scale attached to such 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 9 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 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 Statutes, Rules or Regulations made thereunder or made in irregular or unauthorised manner shall be invalid and shall be terminated at any time. The expenditure incurred by the University against such appointment or promotion shall be realised from the officer making such appointment or promotion as a public demand under the provisions of the Public Demands Recovery Act, 1914.] 15. In the instant writ application, Annexure-6 has been impugned, the letter of the Principal of the College. But, no order of the University has been challenged, which is the case in the case of C.W.J.C. no.6534 of 2009 where the order passed by the Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga was under challenge.
16. In that view of the matter, I am of the considered view that the College of the petitioners were never affiliated to Bachelor Degree level. Though, the petitioner in W.P.(S) No.7491 of 2012 is having minimum requisite qualification for Lecturer, as provided under the Jharkhand State University Act, but unless there is specific upgradation of post by the State Government, it can never be presumed nor safely concluded that the College of the petitioner shall be governed by Jharkhand State University Act and Section 67(A) thereof, shall also be applicable to the petitioner.
17. For the reasons stated in the foregoing paragraphs and as a logical sequitur to the factual position, the relief sought for by the petitioners for enhancement of the age of superannuation from 60 years to 62 years and further enhancement of the age up to 65 years, do not merit consideration.
18. Resultantly, the writ petitions sans merit are hereby dismissed. (Pramath Patnaik, J.) Saket/-