The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1088 of 2018 ------- Sharda Nand Sharma, Son of Ram Nath Sharma, aged about 59 years, Resident of Village -Tangar toli, Bundu P.O. & P.S. Bundu, District- Ranchi (Jharkhand). … Petitioners Versus 1. The State of Jharkhand through the Secretary, Higher, Technical Skill Development, Department, Government of Jharkhand, Project Building, HEC, P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi. Education & 2. The Director, Higher, Technical Education & Skill Development, Department, Government of Jharkhand, Project Building, HEC, Р.О. Dhurwa, P.S. - Jagannathpur, District-Ranchi. 3. The Ranchi University through its Registrar, Ranchi, P.O.-G.P.O, P.S. Kotwali, District-Ranchi ... … Respondents CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN ------- For the Petitioner : Mr. Prem Pujari, Adv. For the Respondents : Mr. A. K. Mehta, Adv. ------- Mr. Divyam, A.C to SC-IV CAV on:- 05/07/2024 Pronounced on:- 16/08/2024 ------- The instant writ application has been preferred by the petitioner for following relief:-
Legal Reasoning
(i) For issuance of appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of Mandamus commanding and directing the respondent Ranchi University to confirm the absorption of the services of the petitioner made twice i.e.in the year 1998 and 2005, strictly in accordance with the principles/policy laid down in the Hon'ble S.C.Agarwal Commission's report. (ii) For issuance of appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of Mandamus commanding and directing the respondents, particularly respondent-3 to immediately & forthwith make fixation of the pay scale of the petitioner in the light of 5th Pay Revision Committee Report with effect from 01.01.1996, and forward the same to the respondent no. 1 & 2, who in turn be directed to immediately & forthwith grant approval of the pay scale of the petitioner in the revised pay scale pursuant to 5th Pay Revision Committee Report with effect from 01.01.1996; as the service of the petitioner has been 1 has Ranchi University absorbed by the Ranchi University twice i.e. in the year 1998 & 2005 respectively, in the light of the direction passed by the Hon'ble Supreme Court and also because the already made recommendation/fixation for grant of approval of the revised 5th Pay Scale of the petitioner to several similarly situated employees. (iii) For issuance of appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of Mandamus commanding and directing the respondents, to consequently approve and pay the salary to the petitioner in 6th Revised Pay scale with effect from the date persons similarly situated to that the petitioner has been given benefit of 6th revised pay scale, and further to pay entire arrears of salary of the petitioner pursuant to approval of revision of pay scale pursuant to 5th Pay Revision with effect from 01.01.1996 & further to pay entire arrears of salary pursuant to approval in 6th Revised Pay Scale w.e.f. 01.01.2006 respectively, due till date. issuance of an appropriate Writ(s) (iv) /order(s)/direction(s) particularly a writ in the nature of Certiorari for quashing/setting aside the order dated 06.10.2015 (Annexure- 9), whereby the claim of the petitioner seeking absorption of his services has been denied by the Hon'ble SB Sinha Commission. (Inserted as per order passed in IA no. 9180 of 2019) For 2. The facts of the case as it appears from the writ petition are that the petitioner applied for the post of lecturer in the department of Chemistry as an appearing candidate in post-graduation and was appointed by the principal of the college as a lecturer, in the department of Chemistry in the P.P.K. college, Bundu, Ranchi on 25.02.1986; where he had given his joining on 02.03.1986. The petitioner has acquired his post-graduation qualification on 07.08.1986. Thereafter, the erstwhile State of Bihar took a decision for converting the P.P.K. College, Bundu into a constituent college of Ranchi University. Dispute arose with regard to absorption of staff for which a writ petition being CWJC no. 4021/1995 was filed before the Patna High Court and the decision of the Patna High Court was the subject matter of challenge before the Hon'ble Supreme Court and the Hon'ble Apex Court appointed one Member Committee of retired Hon'ble Justice S.C. Agrawal to enquire into the matter and to submit its 2 report. The report of the Hon'ble S.C. Agarwal Commission was accepted by the Hon'ble Supreme Court. Thereafter, Ranchi University in continuation to earlier notifications and pursuant to the order passed by the Hon'ble Supreme Court; absorbed/regularized the services of the teaching employees including the petitioner, against the post available in other NCC Colleges under Ranchi University; vide Memo No. RU/VC/R-368/095 dated 29.11.2005 in the subject of mathematics. Thereafter, the Hon’ble Supreme Court of India
Legal Reasoning
once again appointed Hon'ble Mr. S. B. Sinha (retd.) as a one- man commission with a view to give quietus to the dispute of the teachers and non-teaching staff of the constituent college and the S. B. Sinha commission dismissed the claim of petitioner vide order dated 06.10.2015. Being aggrieved by the aforesaid rejection order dated 06.10.2015 by the Hon'ble SB Sinha commission; the petitioner had filed his objection before the Hon'ble Supreme Court of India in SLP (C) 12591 of 2010 converted into CA No. 2703/2017. The Hon’ble Apex Court by order dated 31.08.2017 gave liberty to assail the order passed by Hon’ble S.B Sinha Commission. Therefore, this writ petition has been filed. 3. Mr. Prem Pujari, learned Counsel for the petitioner submits that Justice Agarwal Commission while adjudicating claim of the applicants of such category who had been appointed before publication of post Graduate result, has given the eligibility from the date of publication of result in view of the principles laid down at page 52 Vol-1 of its report. Such teachers including petitioner is absorbed by the University under section 4 (1)(14) of the Universities Act after the direction of the Hon'ble Supreme Court in the case of State of Bihar Vs. Bihar Rajya MSESKK Mahasangh, reported in 2005(9) SCC 129. He further submits that Hon'ble Justice S.B Sinha Commission has erred in interpreting the principles laid down 3 by the Justice Agarwal at page 52 Vol-1 and has wrongly dismissed the claim of the petitioner contrary to the terms of the reference issued by the Hon'ble Supreme Court. Learned Counsel further submits that petitioner is discharging his duties on the post of lecturer in P.P.K College under Ranchi University; as such, is entitled for revision of the pay scale. In this context, he also referred that 5th Pay Revision Committee had made its recommendation regarding 5th Pay Revision of the employees which was to be effective w.e.f. 01.01.1996, as such respondent-Ranchi University, may be directed to determine the revised pay scale of the petitioner in 5th revised pay scale and forward the same for approval to the State Government. Further, the Ranchi University has exclusive jurisdiction in the matter regarding absorption and grant of pay scale to its employees; but it had though absorbed services of the petitioner twice on the recommendation of the Internal committee u/s 4 (1) (14) of the Jharkhand State Universities Act, as per the syndicate in accordance with the recommendation of Justice Agarwal and the Hon'ble Supreme Court Judgment against recommended R-1 post, however contrary to its own stand had not issued necessary direction for fixation and payment of salary of the petitioner in the 5th revised pay scale with effect from 01.01.1996. 4. It has been submitted by Mr. Anup Kumar Mehta, learned counsel for the respondent-University that since the service of the petitioner has not been absorbed by the University; the petitioner approached Justice S.B. Sinha (Retd.) Commission who after hearing the claim petition observed that the name of the petitioner does not appear in any Government letter and on the date of his appointment, he did not possess a Master's Degree. His result was published after the cut-off-date. In the order dated 06.10.2015, Justice S.B. Sinha (Retd.) Commission also observed that the petitioner was sought to be regularized by the University on the post of a teacher of Mathematics in a different college. 4 Justice Sinha Commission also stated that the University has been acting in an arbitrary manner in passing order of regularization contrary to the directions issued by the Hon'ble Supreme Court of India in the case of Mahasangh (supra). It has been further submitted that as S.C. Agarwal Commission did not recommend the name of the Petitioner for absorption in PPK College, Bundu in absence of any post available, the Petitioner approached S.B. Sinha (Retired) Commission, New Delhi for his absorption. The Hon'ble S.B. Sinha Commission has raised strong objection that a Lecturer in the Department of Chemistry cannot be absorbed against post of Lecturer in Mathematics in another College and therefore, the State Government has rightly not accepted the proposal for absorption of the services of the Petitioner, who was Lecturer in chemistry in PPK college, Bundu against the post of lecturer in mathematics at KCB college Bero. 5. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits, it appears that petitioner was appointed as a lecturer in the department of chemistry in P.P.K. College, Bundu on 25.02.1986 on temporary basis; however, no sanctioned post was available in the said college in department of chemistry. Thereafter in the year 2005, the petitioner was conditionally regularized in the subject of mathematics in KCB college Bero. 6. After conversion of PPK college into a constituent college of Ranchi University, dispute arose with regard to absorption of the teaching and non-teaching staffs in various colleges which were converted into constituent college against sanctioned post as well as teachers appointed against the post for which recommendations were sent by the University to the State Government for which Hon'ble Apex Court appointed one member committee of retired Hon'ble Justice S.C. Agarwal to enquire into the matter and to submit its report. 5 It further appears from the counter affidavit of the University that the name of the petitioner was not present in Annexure- IIIA or Annexure IVA of Justice S.C. Agarwal (Retd.) Commission Report, meaning thereby that the commission did not recommend the name of the petitioner for absorption in PPK College, Bundu. Thereafter, the petitioner approached Justice S.B. Sinha (Retd.) commission for his absorption. 7. It further appears that Justice S.B. Sinha Commission considered the claim of the petitioner and by order dated 6.10.2015 (Annexure-9), rejected the claim for absorption. On perusal of the aforementioned order, it appears that the claim of the petitioner for absorption was rejected on three fronts. Firstly; the name of the petitioner does not appear in any of the government letter, Secondly; the petitioner did not possess the Master's degree on the date of his appointment as the result was published on 07.08.1986 that is after the date of conversion of the college into a constituent unit of the university; and Thirdly, the petitioner was sought to be regularized by the University on the post of teacher of Mathematics in a different college. 8. At this stage, it is pertinent to refer the order delivered by the Patna High Court in CWJC No. 19205 of 2017 and Civil Writ Jurisdiction Case No. 7471 of 2013 wherein the Patna High Court has observed that considering the discussion of Justice S.C. Agrawal Commission and the fact that the State Government has allowed the teachers to improve their qualification for the purpose of absorption, petitioners who have acquired their eligibility much before completion of four years of takeover are entitled to be considered for absorption. 9. Thus, this Court is of the opinion that even if the second ground taken by Justice S.B. Sinha Commission to reject the claim of the petitioner that the petitioner did not possess the Master's degree on the date of his appointment as the result was published on 07.08.1986 is held to be invalid 6 due to the observation of the Patna High Court; then also, the claim of petitioner is liable to be rejected on the other two fronts taken by Justice S.B. Sinha Commission i.e. the name of the petitioner does not appear in any of the government letter and also the petitioner was sought to be regularized by the University on the post of teacher of Mathematics in a different college; though he was lecturer of Chemistry. 10. Learned Counsel for the petitioner has contended that as per the provision contained under Section 4 (1) (14) of the Jharkhand State Universities Act, 2000, power of regularization of an employee has been vested in the University only and State Government has no role to play. In this regard it is observed that; though by the provision of Jharkhand State Universities Act only university is vested with the power of regularization of an employee; however, the exercise of such power must be according to the procedure established by law and not to be used arbitrarily and illegally. At the cost of repetition, the petitioner was appointed as a lecturer in department of chemistry and when no sanctioned post were available in department of chemistry in PPK College; the University conditionally regularized the petitioner in the subject of mathematics in KCB college which is out rightly illegal and arbitrary use of power; as such, order dated 6.10.2015 (Annexure-9) wherein the claim of petitioner has been rejected and the conditional regularization of petitioner in subject of mathematics has been held to be illegal, is correct in fact as well as in law and cannot be set aside. 11. Now coming on the issue to confirm the absorption of the service of the petitioner; as discussed above, the conditional regularization of petitioner by university was itself illegal and confirming the absorption of service of petitioner will lead to perpetuating the illegality which will be against the principle that illegality should not be allowed to be perpetuated. In this regard, it would be profitable to refer 7 para-4 of the judgment rendered in the case of State of Karnataka v. Umadevi (3) reported in (2006) 4 SCC 1 For brevity para-4 of the aforesaid judgment is quoted as under :- "4......Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is issuing orders time, that the courts desist from preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of hose who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten." 12. Further, this court refrains from passing any order directing the respondent to make fixation of pay scale in the light of 5th and 6th Pay Revision Committee Report as once the conditional regularization of petitioner itself is held to be illegal; no such order of pay fixation can be passed. 11. From the above discussion and by following the law laid down by the Hon'ble Apex Court it can be concluded that Justice S.B. Sinha Commission has rightly rejected the claim of petitioner. Accordingly, no relief can be granted to this petitioner and consequently, this writ petition stands dismissed. (Deepak Roshan, J.) Fahim/- 8