Binod Kant Tiwari, aged about 63 years, S/o late Nand Kumar Tiwari, R/o Vikas v. 1. The State of Jharkhand through the Secretary, Department of Higher and Technical Education
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 452 of 2023 Binod Kant Tiwari, aged about 63 years, S/o late Nand Kumar Tiwari, R/o Vikas Nagar, Village – Chandwe, P.O. – Gandhi Nagar, P.S. – Kanke, District- Ranchi, Jharkhand. Petitioner … … Versus 1. The State of Jharkhand through the Secretary, Department of Higher and Technical Education, Nepal House, P.O. & P.S.- Doranda, District – Ranchi. 2. The Director of Department of Higher and Technical Education, Government of Jharkhand having its office at Nepal House, P.O. & P.S.- Doranda, District – Ranchi. 3. The Ranchi University, Ranchi through its Vice-Chancellor having its office at Ranchi University Campus, P.O. – GPO, P.S. – Kotwali, District – Ranchi. 4. The Registrar of Ranchi University, Ranchi, having its office at Ranchi University Campus, P.O. – GPO, P.S. – Kotwali, District – Ranchi. 5. Panch Pargana Kishan College, Bundu through its Principal having its office at Panch Pargana Kisan College, Bundu, P.O. & P.S.- Bundu, District – Ranchi. … Respondents … For the Petitioner
Legal Reasoning
before this Court in W.P.(S). No. 7059 of 2006 for payment of arrears of salary and current salary and the same was allowed by this Court and a direction was given to pay arrears of salary and current salary to the petitioner. Thereafter, W.P.(S). No. 3287 of 2016 was preferred before this Court for taking a decision on the objection dated 3.9.2005 regarding date of absorption of the petitioner. This writ petition was also allowed with direction to the respondent-authority take decision on the objection dated 3.9.2005. Even a contempt case bearing Cont. Case (Civil) No. 414 of 2017 was filed for compliance of the said order. Thereafter, the petitioner preferred W.P.(S). No. 2890 of 2018 for quashment of the order dated 25.04.2018 passed by the Registrar of the University, by which the claim of the petitioner for regularization with effect from 30.04.1986 was rejected. By order dated 17.01.2020, the matter was remitted back to the respondent-authority to take decision in the matter. For compliance of the said order, a contempt petition was preferred bearing Cont. Case (Civil) No. 576 of 2014 and pursuant to direction given therein, arrears of salary and current salary were paid to the petitioner. In compliance of the several orders passed by this Court, the petitioner was finally absorbed in service with effect from 23.10.1986, though provisionally vide notification dated 6.4.2022. It may be stated that the petitioner is at the verge of retirement and has worked for more than 35 years and the Respondent-University still awaits the approval from the State Government regarding absorption of the petitioner. Aggrieved by the stand of the University, the petitioner has been constrained to knock the door of this Court. 3. Learned counsel appearing for the petitioner vociferously argues that despite the recommendation of the University under Section 4(1)(14) of the Universities Act for absorption of the petitioner with effect from 23.10.1986 provisionally, the State has sat tight over the 2 matter and no decision has yet been taken. Learned counsel further submits that whenever the University is taking over the Management of any College and thereby absorbs any staff under Section 14 (1) (4) of the said Act, the State Government is not supposed to exercise its powers under Section 35 of the said Act denying the absorption or questioning absorption of staff of ‘taken over college’. Referring to page-73 i.e. the report of the Hon’ble Justice Agrawal Commission of the sanctioned post, learned counsel submits that there was two sanctioned posts in subject Geography in PPK College and there was one post of recommended post prior to cut off date. Learned counsel further refers page-102 i.e. the list of working teachers to contend that the petitioner is one of the teachers out of two sanctioned post and one recommended post and as such, he is entitled for absorption of his service with effect from 23. 10.1986. 4. Mr. Navneet Toppo, learned counsel for the respondent-State, emphatically argues that since the petitioner was not absorbed permanently and the absorption itself was provisional in nature and also in view of the fact that he was not working on sanctioned / vacant post, he is not entitled for any relief sought for. 5. Ms. Aprajita Bhardwaj, learned counsel appearing for the Ranchi University draws attention of the Court towards counter affidavit and submits that since two persons are already working on the sanctioned / vacant post, petitioner cannot be absorbed, as there is no any other sanctioned / vacant post. It has been further argued that even none of the Commissions, either Hon’ble Justice Agrawal Commission or Hon’ble Justice S.B. Sinha Commission has recommended the name of the petitioner and in both the Hon’ble Commissions’ report, it has been clarified that two persons are already working against the sanctioned / vacant post and, as such, petitioner’s case cannot be considered for the third post which is neither vacant nor sanctioned. In view of that, no fresh recommendation can be made for the third post. 6. Having heard the learned counsel for the parties across the Bar, there is no quarrel to the fact that petitioner has continued to work in the Taken Over College from the date of his initial appointment i.e., 3 22.03.1986 and joining was accepted on 23.08.1986. From the record it appears that petitioner’s college fell under 4th phase constituted college all along his tenure. It is also not in dispute that the petitioner has been making and receiving salary till date. It is also an admitted fact that the petitioner’s services were absorbed with effect from 23.10.1986, though provisionally. 7. Even otherwise, from perusal of Annexure-6 at page-73 and page-75, which is the extract of report of Hon’ble Justice Agrawal Commission, it appears that two posts are sanctioned and one post is recommended post in subject Geography. It further appears from Annexure-7, which is resolution dated 01.12.2008 that in the light of report of Hon’ble Justice Commission, the State Government has sanctioned another post in subject Geography w.e.f., 30.04.1986. From perusal of these documents, it would go to show that even third post was duly sanctioned with from 30.04.1986. 8. Therefore, the arguments advanced by the learned counsel for the Respondent-University that in absence of any third sanctioned post, petitioner’s services cannot be absorbed from service, is totally misconceived and is against the records. Even, the State who has approved the third recommended post cannot take a U-turn at this juncture clarifying that only two posts were sanctioned and two persons have already been working on the said post. The fact remains that it is only on the recommendation and sanction of the State Government, the petitioner is continuously working till date. 9. It is expected that State as well as University will exercise their powers as per the legal provisions as envisaged under the statutes of the University, they cannot controvert beyond that. The powers of the University as well as the State are well defined. The same has been interpreted by this Court under Section 35 as well as 41(14) of the University Act. The issue fell for consideration before this Court in the in the following judgments which are quoted hereinbelow:- (i) W.P.(S). No. 7555 of 2012 [Smt. Kanti Mishra Vs. State of Jharkhand & Ors.]. (ii) W.P.(S). No. 5151 of 2016 [Upendra Prasad Vs. Department of Higher & Technical Education & Ors.]. 4 (iii) W.P.(S). No. 2985 of 2018 [Uday Kumar Vs. State of Jharkhand & Ors.] (iv) State of Bihar & Ors. Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors. reported in 9 SCC 129. (v) Dr. Trilochan Mahto Vs. The State of Jharkhand & Anr. Reported in 2013 SCC OnLine Jhar 518. (vi) The State of Jharkhand & Anr. Vs. Surendra Prasad Sahu & Ors. reported in 2012 SCC Online Jhar 331. (vii) W.P.(S). No. 3260 of 2016 [Bishnu Oraon & Ors. Vs. The State of Jharkhand & Ors.]. 10. From the legal propositions as has been set at rest up to the Hon’ble Apex Court, it is not in dispute that University has the ample power of recommendation and such a recommendation has to be accepted by the State. The State does not have unbridled power to cancel or reject the recommendation of the University under Section 35 of the said Act. Since the petitioner’s services were absorbed though provisionally from 23.10.1983 and, thereafter, on the recommendation of the State for third post from 30.04.1986 which is crystal clear from Annexure – 7, it can very comfortably be inferred that the petitioner was working on sanctioned / vacant post right from 03.04.1986. Since the petitioner is at the verge of superannuation and had been drawing salary all along, there is no occasion as to why his services may not be absorbed. 11. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements, the petitioner is entitled for absorption of services with effect from 23.10.1986. The respondent-State is directed to accord approval to the recommendation of the University and, thereafter fix pay and grant all benefits to the petitioner from the date of his absorption in the light of 5th, 6th and 7th Pay Revision Commission. Needless to say that upon superannuation, petitioner is entitled for all the benefits. Let the entire exercise be completed within a period of six
Arguments
--- CORAM :HON'BLE DR. JUSTICE S. N. PATHAK --- : Mr. Kumar Mishra, Advocate : Mr. Shresth Gautam, Advocate Mr. Krishna Prajapati, Advocate Mr. Yogendra Yadav, Advocate : Ms. Laxmi Murmu, GP-I Mr. Navneet Toppo, AC to GP-I For the Resp-State For the Resp-University : Ms. Aprajita Bharadwaj, Advocate --- 11/03rd December 2024 1. The petitioner has approached this Court for a direction upon the respondents for grant of benefit of 5th, 6th and 7th Pay Revision w.e.f. 01.01.1996, 01.01.2006 and 01.01.2016 respectively and to fix and pay arrears of salary thereof, as the service of the petitioner has been absorbed w.e.f. 23.10.1986 on the post of Lecturer in the Department of Geography at PPK College, Bundu. Further prayer has been made for quashing of the part of notification contained in Memo No. RU /VC /R/321 /05 dated 05.08.2005 (Annexure -8) and the notification contained in Memo No. B/ 443/ 22 dated 06.04.2022 (Annexure -16) whereby, a superfluous condition has been imposed that the service of the petitioner has been absorbed provisionally, subject to approval of 1 the State Government. Further prayer has been made to hold and declare that in the matter of absorption or regularization of staff of Taken Over College is within sole power and jurisdiction of the University under Section 4(I)(14) of the Jharkhand State University Act, 2000. 2. This case has got chequered history. Earlier the petitioner moved
Decision
weeks from the date of the receipt of the copy of this order. 12. Accordingly, the writ petition stands allowed. Aditi 5 (Dr. S. N. Pathak, J.)