Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21419 of 2012 ====================================================== Murli Dhar Singh, Son of Late Shiv Chadra Prasad Singh, resident of village - Raghunathpur, Post Office- Raghunathpur, District- Samastipur Versus .... .... Petitioner/s 1. The L.N. Mithila University, Darbhanga through Its Registrar 2. The Vice-Chancellor, L.N. Mithila University, Darbhanga 3. The Pro-Vice Chancellor, L.N. Mithila, Darbhanga 4. The Registrar, L.N. Mithila University, Darbhanga 5. The Principal, R.N. A.R. College, Samastipur 6. Anil Kumar Singh, Son of not known Head Clerk, R.N. A.R. College, Samastipur 7. Jai Kishore Thakur, Son of not known Head Clerk, R.N. A.R. College, Samastipur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Yugal Kishore, Sr. Advocate. Mr. Virendra Prasad, Advocate. Mr. Sanjay Kumar, Advocate. For the University : Mrs. Nivedita Nirvikar, G.P. 3 Mr. Manoj Kumar, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 10-12-2013 Heard learned counsel for the parties. The prayer of the writ petitioner in this writ application reads as follows: “……. For quashing that part of the office order contained in memo no. 14693/2012 dated 21.09.2012 on annexure-11 of L. N. Mithila University by which respondents no. 6 and 7 have been promoted to the post or Head Clerk General and Head Clerk Accountant respectively and also for quashing for consequential notification dated 25.09.2012 annexure-11/1 by which the Principal of the college has notified the promotion of the respondents no. 6 and 7 and also for issuance of a the writ respondents to fill up the post of the Head Clerk General and Head Clerk Accountant strictly in accordance with the seniority.” directing/commanding of mandamus
Legal Reasoning
There is no dispute that the respondent no. 6 came to be appointed on the post of Typist while the college was an affiliated unit. The order of absorption goes to show that the respondent no. 6 was initially appointed against unsanctioned post on 31.03.1978 and thereafter he was appointed against the sanctioned post in a prescribed manner with effect from 23.12.1980. Similarly, there is no dispute that the appointment of the respondent no. 7 was on the post of Store Keeper on 09.02.1976 and his services were also absorbed on the said post. This Court would find it difficult to accept that part of submission of Mr. Yugal Kishore that the appointment of the respondent no. 7 on the post of Store Keeper was on unsanctioned post. If that be so and if the order of the University dated 01.02.1983 (Annexure-3) alone can be the parameter, there would be no question of availability of the post of Head Clerk (General) and Head Clerk (Accountant) or other Class-III post enumerated therein. This Court, in fact, will not now, after 30 years of the order of absorption, like to go into the aspect as to whether the decision of the University, to absorb 36 non-teaching employees, was against sanctioned/unsanctioned post. In fact, this will also be 4 Patna High Court CWJC No.21419 of 2012 (4) dt.10-12-2013 4 / 6 of no advantage for the petitioner because, admittedly, at any point of time, the State Government had never sanctioned the post of Personal Assistant to the Principal in any college, whether it was constituent or affiliated, and, therefore, whatever services were rendered by the petitioner, prior to the college becoming constituent and his absorption cannot be counted towards his seniority in absence of a sanctioned post. Once, this aspect becomes clear there would be no difficulty in holding that both, the respondent nos. 6 and 7, are senior to the petitioner on the available sanctioned post. The order of absorption, in fact, was a saving grace for the petitioner and he could, at best, be counted to be against one of the three posts of Lower Division Clerk only with effect from the date the University passed the order on the college becoming a constituent unit. The respondent no. 7 having been brought on 09.02.1976 against the sanctioned post and the respondent no. 6 on 23.12.1980, cannot be, therefore, held to be junior to the petitioner, whose services, as noted above, were regularized by the University only by an order dated 01.02.1983 by at least allowing him to be absorbed against one of the posts of Lower Division Clerk though till that date the petitioner on his own was continuing on an unsanctioned post of the Personal Assistant to the Principal. In that view of the matter, this Court does not find any error in the order of promotion of the respondent nos. 6 and 7 specially when neither the cadre of Class-III and IV employees of the University has been decided as yet and, in fact, the order of promotion itself envisages that changes may be effected once the Chancellor frames its statutes with regard to grant of promotion. This Court would take a judicial notice of the fact that the matter of framing of statutes for promotion of non- 5 Patna High Court CWJC No.21419 of 2012 (4) dt.10-12-2013 5 / 6 teaching employees of constituent colleges for all Universities in advance level where in the State Government has already concurred with the statute framed by the learned Chancellor and the matter is now pending before the learned Chancellor for issuance of the statutes. The question however will be if the learned Chancellor will not frame the statute for more than 30 years ever since the college became a constituent unit, can the employees be deprived of their legitimate right of being considered for promotion against higher vacant post ! In that view of the matter, while this Court would treat the order of promotion of Respondent no. 6 and 7 to be provisional order as is also apparent from reading of the same, but then for the time being, this Court would not find any error in the order of such provisional promotion given to the respondent nos. 6 and 7. The submission of Mr. Yugal Kishore that every employee must be given two promotions in view of the judgment of the Apex Court in the case of State of Tripura (supra), has to be also understood in the background of the cadre rules. It is true that in every service now the concept of time bound promotion/ACP has been brought only to mitigate the grievance of the employee where they fail to get regular promotion for want of sanctioned post. The stagnation/removal measure by way of granting them higher pay scale either in the Time Bound Promotion Scheme or ACP Scheme, in fact, can be a good substitute for mitigating the grievance of the employee who cannot earn regular promotion due to want of sanctioned promotional post. Judge from this backdrop, when the State Government has admitted before this Court that in the University also the ACP is in force, this Court would direct the Registrar of 6 Patna High Court CWJC No.21419 of 2012 (4) dt.10-12-2013 6 / 6 the University to consider the case of the petitioner for grant of ACP along with such eligible persons of the college and if it is found that the petitioner fulfills the requisite parameters under the ACP Scheme, he should be granted ACP with all consequential benefit. If the Registrar, on the other hand, would find that the petitioner does not fulfill even the requisite parameters of being given the benefit of ACP, he will pass his reasoned order and communicate the same to the petitioner. Keeping in view that the petitioner is going to superannuate on 31st July 2014, this Court would direct the Registrar of the University to consider and decide the case of the petitioner for grant of ACP, but only after getting approval of the prescribed authority, within a period of four months from the date of receipt of this order. Before parting with, it is made clear that if at any point of time before retirement of the petitioner, the Statute framed by the Chancellor comes into existence, which may give certain right to the petitioner for claiming promotion on the post of Head Clerk (General) and Head Clerk (Accountant), he will have the liberty to move the competent authority for claiming of such promotion. With the aforementioned observations and directions,
Arguments
In support of the aforementioned prayer, Mr. Yugal Kishore, learned Senior Counsel appearing on behalf of the petitioner, has submitted that once the petitioner’s seniority on the 2 Patna High Court CWJC No.21419 of 2012 (4) dt.10-12-2013 2 / 6 post of Lower Division Clerk with effect from 31.03.1978 is not disputed by the respondent L. N. Mithila University (hereinafter referred to as ‘the University’) and its officials, they cannot justify the non-consideration of the case of the petitioner for promotion on the post of Head Clerk (General) and Head Clerk (Accountant). He has also submitted that in terms of the judgment of the Apex Court in the case of State of Tripura & Ors. v. K.K.Roy; {(2004) 9 SCC 65}, every employee must be considered, at least, for two promotions in his service career but in the case of the petitioner even that has not been done. Mrs. Nivedita Nirvikar, learned counsel appearing on behalf of the University, on the other hand, has submitted that while the college was an affiliated unit to the University, the Governing Body had appointed the petitioner initially on the post of Personal Assistant to the Principal of the college. She has laid stress that there was no such sanctioned post of Personal Assistant to the Principal in an affiliated college and, therefore, when the college became a constituent unit in the year 1980, the University had to consider the case of the petitioner along with other employees for absorption and ultimately his services were absorbed as a Lower Division Clerk and, therefore, the benefit of such absorption could become available to the petitioner only with effect from the college becoming constituent and receiving payment of salary from the Government fund to the University. Having thus given the service history of the petitioner, she has however gone to submit that both, the respondent nos. 6 and 7, on the own showing of the petitioner, were senior on Class-III non- teaching post, namely the post of Store Keeper and Typist held by them at the time of the college was an affiliated unit. According to Mrs. Nirvikar, the promotion, therefore, given to the respondent 3 Patna High Court CWJC No.21419 of 2012 (4) dt.10-12-2013 3 / 6 nos. 6 and 7 who were admittedly senior to the petitioner, cannot be faulted either on fact or in law. As with regard to consideration of the case of the petitioner for grant of Assured Career Progression (hereinafter referred to as ‘the ACP ‘), Mrs. Nirvikar has submitted that the case of the petitioner will be considered along with others and if it is found that the petitioner fulfills the requirement of the ACP Scheme as adopted by the University, a final decision will be taken. As noted above, the challenge of the petitioner to the promotion of the respondent nos. 6 and 7 is based on seniority.
Decision
this writ application is disposed of. Personal appearance of Mr. V. P. Singh, Registrar of the University is also dispensed with. Sujit/- (Mihir Kumar Jha, J)