Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No.7555 of 2012 =============================================================== Smt. Kanti Mishra, wife of S.P. Sharma, resident of Plot No. 5, Central Market, Sector- VI, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro. … … Petitioner VERSUS1 The State of Jharkhand.
2. The Principal Secretary, Human Resources Development Department, Govt. of Jharkhand, Ranchi.
3. The Joint Secretary, Human Resources Development Department, Govt. of Jharkhand, Ranchi.
4. The Director, Higher Education, Human Resources Development Department, Govt. of Jharkhand, Ranchi.
5. Vinoba Bhave University through the Registrar, P.O. & District Hazaribagh 6. The Vice-Chancellor, Vinoba Bhave University, Hazaribagh, P.O. & District Hazaribagh. … ... Respondents. =============================================================== For Petitioner : Mr. Rajiv Ranjan, Sr. Advocate Mr. Rakesh Kumar Shahi, Advocate Mr. Gourav Abhishek, Advocate For Respondent-State : Mrs. Chandra Prabha SC-IV Mr. Vishal Kumar Rai, JC to SC-IV For Respondent-University : Mr. Mithilesh Singh, Advocate =============================================================== With W.P. (S) No.888 of 2015 =============================================================== Ajit Kumar Pathak, son of Sri Krishna Pathak, resident of Imli Kothi, Barka Gaon Road, P.O., P.S. & District Hazaribagh. … … Petitioner VERSUS1 The State of Jharkhand through the Secretary, Human Resources Development Department, Govt. of Jharkhand, Ranchi.
2. The Director, Human Resources Development Department, Govt. of Jharkhand, Ranchi.
3. Vinoba Bhave University, Hazaribagh through its Registrar, having its office at P.O. , P.S. & District Hazaribagh 4. The Vice-Chancellor, Vinoba Bhave University, Hazaribagh, P.O., P.S. & District Hazaribagh. 2 5. The Registrar, Vinoba Bhave University, Hazaribagh, P.O., P.S. & District Hazaribagh.
6. The Secretary, Jharkhand Public Service Commission, Ranchi … ... Respondents. =============================================================== For Petitioner : Mr. Rajiv Ranjan, Sr. Advocate Mr. Piyush Chitresh, Advocate For Respondent-State : Mr. Lalan Kumar Singh, Advocate For Respondents-University : Mrs. Indrani Sen Choudhary, Advocate For Respondents-JPSC : Mr. Abhay Prakash, Advocate =============================================================== CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK C.A.V. on 18.08.2017 (in W.P.S. No. 7555 of 2012) & C.A.V. on 10.08.2017 (in W.P.S. No. 888 of 2015) Pronounced on 18/12/2017 Dr. S.N. Pathak, J.
Heard learned counsel for the petitioners and learned counsel for the respondents.
2. Though both the cases were reserved for Judgment on different dates but as the facts/ issues in both the writ petitions are same and similar, they are being disposed of with a common order.
3. The petitioner in W.P.(S). No. 7555 of 2012 has approached this Court with a prayer for quashing part of the order dated 27.06.2012 issued by respondent No. 2 whereby the said respondent has wrongly held that during the period from 09.02.1985 to 30.04.1986, there was no concurrence of the College Service Commission in the matter of appointment of the petitioner. Further prayer has been made for quashing letter dated 18.05.2007 issued by respondent No. 3, whereby the said respondents has illegally and arbitrarily fixed the wrong date of substantive appointment of the petitioner contrary to report of Hon’ble S.C. Agarwal Commission. Petitioner has also prayed for a direction upon the respondents, particularly respondent Nos. 5 and 6 to consider the case of the petitioner and pass appropriate orders with regard to his promotion to the post of Reader under 10 years’ Time Bound Promotion Statute, as contained in letter No. BSU-27/85-4032/GS(1) dated 24.12.1986 and pay the arrears of salary and grant the consequential benefits accruing thereof. Similarly, the petitioner in W.P.(S). No. 888 of 2015 has approached this Court with a prayer for directing the respondents to promote the petitioner 3 to the post of Reader from the post of Lecturer under the time bound promotion scheme. Petitioner has also prayed for a direction upon the respondents to correct the date of absorption of the petitioner as 28.02.1982 from 30.04.1986, as recommended by the University vide its letter dated 17.03.2008.
4. The factual exposition as has been delineated in these writ petitions are that the petitioner in W.P.(S). No. 888 of 2015 was appointed as Lecturer in the department of Political Science at Markham College on 20.07.1981, on unsanctioned post which was later on sanctioned w.e.f. 28.02.1982, after following the due process of law by the General Body of the College. Similarly, the petitioner in W.P.(S). No. 7555 of 2012 was appointed on sanctioned post, as Lecturer in the department of Philosophy. The Bihar College Service Commission also recommended the names of the petitioners. Meanwhile, a conscious decision was taken by the unified State of Bihar in the year 1986 that all the affiliated colleges will be taken over by the respective Universities and accordingly, the same was implemented in the year 1987. In the same decision of the State Government, the Universities were directed to obtain from each of the affiliated colleges, the information regarding sanctioned posts of teaching and non-teaching staff existing on the date of taking over of the colleges as constituent colleges. Thereafter, a Three Men Committee, which was constituted by the Universities, had completed its investigation for submitting necessary information in the prescribed format showing separately names of teaching and non-teaching staff working against the sanctioned post. It is the further case of the petitioners that the State Government has also created a Three Men High Level Committee to enquiry into the number of post and also about the persons who were working on sanctioned/ recommended post on 17.01.1987. Meanwhile, the government also instituted a Vigilance Enquiry for removal of the employees of fourth phase constituent colleges, which compelled the employees to move before the Hon’ble Court in CWJC No. 4021 of 1995, in which an order of status quo was passed by the Division Bench with a direction to the Universities to consider the cases of the employees of fourth phase colleges. In compliance of the said order, the respondents continued to make payment to the present petitioners but the Government of Unified State of Bihar moved before the Hon’ble Supreme Court by filing SLP No. 6098 of 1997 and the Hon’ble Supreme Court vide its order dated 12.10.2001, appointed Hon’ble Mr. Justice S.C. Agarwal, a retired Judge of Hon’ble Supreme Court, as one Member 4 Enquiry Committee to go into the various controversies and disputes with regard to the absorption of employees of the erstwhile affiliated colleges in the services of the converted constituent colleges.
5. It is the case of the petitioners that the Vinoba Bhave University, under Section 4(1)(14) of the Jharkhand State University Act, issued a notification dated 12.03.2005 providing the list of teachers who stand absorbed. The names of the petitioners also figured in the report of Agarwal Commission as working against sanctioned post. Subsequently, the petitioner in W.P.(S). No. 888 of 2015 and in W.P.(S). No. 7555 of 2012 were absorbed in services w.e.f. 28.02.1982 and 26.06.1983 respectively, the dates on which the posts of the petitioners were sanctioned. Meanwhile, the Universities had taken steps for granting the benefits of 5th pay revision to its employees, in which the names of the petitioners were also recommended. Thereafter, vide notification dated 12.07.2007, a new imaginary date of absorption as 30.04.1986 was fixed with regard to the petitioner in W.P.(S). No. 888 of 2015. Similarly, vide notification dated 18.05.2007, a new imaginary date of absorption as 30.04.1986 was fixed with regard to the petitioner in W.P.(S). No. 7555 of 2012 also. When the petitioners gathered this information, they immediately approached the respondents for correcting their date of absorption. Thereafter, the Registrar of the said University vide his letter dated 17.03.2008 requested the Director, HRD Department for correction of the date of absorption of the petitioners. Since the date of absorption of the petitioners were in dispute, they were not granted promotion to the post of Reader. It is the specific case of the petitioners that one similarly situated co-employee, Gokhul Narayan Das was granted promotion after correction of his date of substantive appointment but the petitioners were denied the same benefits. The petitioners made representation before the respondents-authorities for consideration of their cases in view order of Hon’ble Supreme Court, but till date no heed has been paid towards the representation of the petitioners. Hence, these writ petitions have been filed by the petitioners for redressal of their grievances.
6. Mr. Rajiv Ranjan, learned senior counsel assisted by Mr. Rakesh Kumar Shahi, Mr. Gourav Abhishek and Mr. Piyush Chitresh, learned counsels appearing for the petitioners strenuously urges that the order dated 27.06.2012 has been passed illegally and arbitrarily by misinterpreting Section 2(11) and Section 2(9) of the College Service Commission Act, 1976. The action of the respondents in fixing substantial date of appointment of the petitioners is in violation of the report of Hon’ble Agarwal Commission and also in violation 5 of the order of the Hon’ble Supreme Court reported in 2005 (1) JLJR215(SC). Learned senior counsel further argued that the respondents cannot act beyond the directions of the Hon’ble Supreme Court and the petitioners are entitled to be treated as substantially appointed from the date of their absorption. As the petitioners have completed 10 years of continuous services, they are entitled to be considered and promoted to the post of Reader under 10 years’ Time Bound Promotion Statute. Learned senior counsel further argued that the action of the respondents are grossly illegal and violative of Articles 14 and 16 of the Constitution. There is no provisions under the Universities Act nor any powers vested in law which requires the University to take approval and on that ground alone, promotion to the petitioners cannot be denied.
7. Per contra counter-affidavits have been filed by the respondents. Ms. Chandra Prabha assisted by Mr. Lalan Kumar Singh, learned counsel appearing for the respondent-State vehemently opposes the contention of the learned senior counsel for the petitioners and submits that the petitioners are the employees of fourth Phase College. As it is clear from the writ petition that the petitioners were not appointed on the basis of the recommendation of the College Service Commission, so their appointments were violative of Sections 57 and 58 of the Jharkhand State University Act, 2008 (adopted) and under the provisions of Section 7 and 10 of the Bihar State College Service Commission Act, 1976. However, due to takeover of the Colleges, the services of the petitioners have been absorbed in the services of the University. Learned counsel further submitted that till the permanent appointment, temporary concurrence were given to the petitioners for their appointment. From the aforesaid facts, it is clear that the services of the petitioners were not valid prior to the takeover of the Colleges. Further, the petitioners are the employees of the Universities and as such, the responsibility of considering the cases of the petitioners for promotion is the responsibility of the University and on the basis of the recommendation of the Jharkhand Public Service Commission, the University gives promotion to its teachers as per the provisions of Jharkhand State Universities Act and concerned Statutes of the University. The State Government has no role in granting promotion of the petitioners.
8. Mr. Mithilesh Singh assisted by Ms. Indrani Sen Choudhary, learned counsel appearing for the respondent-University argued that in compliance of the order of Hon’ble Supreme Court, the petitioners were absorbed as Lecturer. Thereafter, the University provisionally fixed the salary of the petitioners from the dates of their absorption and sent the same to the Director, Higher 6 Education, HRD Department, Govt. of Jharkhand for its approval. The HRD Department fixed salary of the petitioners in the 5th revised UGC pay-scale with effect from 01.01.1996, mentioning the date of substantive appointment as 30.04.1986 and communicated the same to the University vide letter dated 12.07.2007. Learned counsel further submits that the University under the provisions laid in Jharkhand State Universities Act, 2002 invited applications under various schemes for promotion from the post of Lecturer to the post of Reader and Professor vide memo dated 30.04.2015. In response to the said advertisement, the petitioners submitted their applications to the University, which are under scrutiny and after verification of the applications, the cases of the petitioners will be placed before the Screening Committee under the Statute for consideration of their promotion. Learned counsel for the University further submitted that if the recommendation of the Screening Committee is in favour of the petitioners, the University will transmit the same to the JPSC for its approval and on receipt of approval in favour of the petitioners, the University will notify accordingly.
9. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the cases of the petitioners needs consideration. The issue involved in these writ petitions is no more re- integra as issues have already been decided in W.P.(S). No. 4833 of 2008. Further, the Hon’ble Apex Court in its judgment reported in case of State of Bihar & Ors. Vrs. Bihar Rajya M.S.E.S.K.K. & Ors., reported (2005) 9 SCC129especially in para-54 have held that in the matter of absorption of staff of such Institution/ College purposed to be taken over would be within sole power and jurisdiction of the University under Section 4(1)(14) of the Act, 2000. It has also been held by the Hon’ble Supreme Court in para – 54 of the said judgment that on the matter of absorption of staff of taken over institutions, Section 35 (requiring prior sanction or approval of the State Government for creation of post and appointment), would not be a constraint on the power of the University. Thus, it appears that wider power with the State Government under Section 35 of the Act, 2002 is in ordinary circumstances when increasing the sanctioned strength is to be made by the University, but, when the University is taking over the management of any College and thereby if it absorbs any staff under Section 4(1)(14), thereafter the Government cannot exercise power under Section 35 of the Act denying the absorption or questioning absorption of staff of “taken-over college”. 7 The petitioner in W.P.(S). No. 888 of 2015 and in W.P.(S). No. 7555 of 2012 were absorbed in services w.e.f. 28.02.1982 and 26.06.1983 respectively. The Universities had taken steps for granting the benefits of 5th pay revision to its employees, in which the names of the petitioners were also recommended. Thereafter, vide recommendation dated 12.07.2007, a new imaginary date of absorption as 30.04.1986 was fixed with regard to the petitioner in W.P.(S). No. 888 of 2015. Similarly, vide recommendation dated 18.05.2007, a new imaginary date of absorption as 30.04.1986 was fixed with regard to the petitioner in W.P.(S). No. 7555 of 2012. Subsequently, the petitioners approached the respondent-University for correction of the date of absorption of the petitioners and the Registrar of the University vide his letter dated 17.03.2008 requested the Director, HRD Department for correction of the date of absorption by which the promotions of the petitioners to the post of Reader were also affected. Since the respondent-HRD Department corrected the date of absorption of one similarly situated co-employee, Gokhul Narayan Das and promotion was granted to him, after correcting his date of substantive appointment and the cases of the petitioners are also stand on similar footing, the respondents cannot discriminate the petitioners. Paras-53 and 54 of the judgment passed by Hon’ble Apex Court in case of State of Bihar & Ors. Vrs. Bihar Rajya M.S.E.S.K.K. & Ors. (supra) is reproduced herein below:-
“53. We do not consider it necessary to express any final opinion as to whether the provision of 'prior approval' contained in section 35 for creation of posts and appointments in affiliated college is mandatory or directory. For the purpose of this batch of cases, it is sufficient for us to opine that clause 14 of section 4(1) operates in exclusive field of considering and taking decision on absorption of staff appointed regularly or otherwise in an institution including an affiliated or non- affiliated college which is to be taken over as 'constituent college' under a formal agreement reached between the university and the Governing Body of that college. In the process of taking over of management, assets, liabilities and staff of the affiliated or non- affiliated college, the university has to take a decision with regard to absorption of existing staff. In this process of consideration for absorption, it may have regard to the provisions of the Act including observance of the provisions of section 35 of the Act. In the matter of absorbing staff of colleges taken over, any alleged non-observance of alleged mandatory provision of obtaining prior approval under section 35, before creation of posts and appointments to them, would not be an impediment in the way of university to permit absorption of an employee working against a post. It may for the above purpose seek ex-post facto approval of the State Government. The decision of the government contained in its communication dated 8 18.12.1989 itself allows consideration of absorption of the members of the staff working against post for which sanction for creation of posts was pending with the State Government on recommendations of the university. We do not find any conflict in the provisions of section 4(1)(14) and section 35, although each contains a non-obstante clause. They intend to override each other in field exclusively assigned to each. Appointments in affiliated college in normal circumstances has to be with prior approval of State Government in accordance with section 35 but subject matter of absorption of services of staff taken over shall be within exclusive jurisdiction of the university concerned in accordance with Section 4(1)(14) of the Act .
54. The two non-obstante clauses with slightly different wordings have thus to be harmoniously construed so as to fulfil the object of each one of them. On examination of the scheme of the Act and the relevant provisions, we find that Section 35, requiring prior sanction of the State Government for creation of posts and appointments, applies to all affiliated colleges. Compared with Section 35 - Section 4(1)(14) has limited operation at a stage when university enters into an agreement with the management or governing bodies of private institutions affiliated or non-affiliated for taking over its management, assets, liabilities and staff. The effect of non-obstante clause in Section 4(1)(14) is that the matter of absorption of staff of such institution/college proposed to be taken over, would be within the sole power and jurisdiction of the university concerned within whose jurisdiction the affiliated college or institution falls. On matter of absorption of staff of taken over institutions, Section 35 requiring prior sanction or approval of the State Government for creation of posts and appointment, would not be a constraint on the power of the university. It is a different thing that the university in considering absorption of the staff of institution taken over may give due consideration to the legality/regularity or otherwise of a particular appointment but it would not be inhibited by the absence of prior sanction or approval of the State as contemplated in section 35 of the Act. This is how the two non-obstante clauses have to be harmoniously construed and applied as giving overriding effect to each and restrict their operation within exclusive field assigned to each. In the matter of creation of posts and appointments in affiliated colleges in normal circumstances, requirement of prior sanction or approval of the State Government, as contained in Section 35, is not dispensed with because of the contrary provision contained in section 4(1)(14) and the latter Section is restricted in its operation to absorption of staff of a taken over institution by the university.”
10. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements and legal proposition, this Court is of the considered view that case of the petitioners need consideration. Fixation of substantial date of appointment has to be done in view of Hon’ble Agarwal Commission’s report and also in view of the aforesaid judgment i.e. (2005) 9 SCC129 No doubt, 9 State has got wide power under Section 35 of the Act but when the University is taking over the management of any College and thereby if it absorbs any staff under Section 4(1)(14), thereafter the Government cannot exercise power under Section 35 of the Act denying the absorption or questioning absorption. In view of the above, the part of the order as contained in order dated 27.06.2012, regarding non-concurrence of the College Service Commission from 09.02.1985 to 30.04.1986 is hereby quashed and set aside. Similarly, letter dated 18.05.2007 issued by the respondent No. 3, whereby the said respondents have illegally and arbitrarily fixed the wrong date of substantive appointment, which is contrary to the report of Hon’ble Agarwal Commissioner and also contrary to the ratio laid down in (2005) 9 SCC129 is also hereby quashed and set aside. The respondent Nos. 5 and 6 are directed to consider the cases of the petitioners and pass appropriate orders regarding promotion of the petitioners and regarding payments of salary and the consequential benefits accruing thereof, considering the date of absorption 28.02.1982, as recommended by the University vide its letter dated 17.03.2008.
11. Resultantly, the writ petitions stand allowed. (Dr. S.N. Pathak, J.) kunal/-