Ashwini Kumar Tripathy vs State Of Jharkhand

In the captioned writ application, the petitioner has inter alia prayed for quashing order dated 07.09.2010 whereby the claim of the petitioner

regarding fixation of his salary in UGC scale and payment of arrears of salary has been rejected and for direction upon the respondents to fix, grant

and pay the salary to the petitioner in the revised UGC scale of lecturer along with admissible allowance w.e.f. 01.01.1996 and pay the arrears of

difference of salary in the revised scale and also for direction upon the respondents to pay current salary to the petitioner in the revised UGC scale

along with the admissible allowances.

The facts, in brief, is that initially the petitioner was appointed as Lecturer in Jain Commerce College, Chaibasa on 6. 04.1981 on temporary basis.

Later on, on recommendation of the Screening Committee for regularization of the services of the teachers prior to 28.02.1982, the petitioner was

absorbed on regular services with approval of the Chancellor vide notification dated 30.07.1991 along with other temporary lecturers. Thereafter, the

Syndicate of Ranchi University in its meeting dated 04.01.1997 also confirmed the services of the petitioner w.e.f 01.03.1982 along with other

teachers vide notification dated 29.05.1997. However, by another office order dated 09.08.1997, the Registrar of the Ranchi University in partial

notification of aforesaid notification dated 29.05.1997, cancelled the order the confirmation of the petitioner. Aggrieved thereof and being dissatisfied

with the pay-scale given to him, the petitioner by invoking writ jurisdiction of this Court preferred writ application being C.W.J.C. No. 2284 of 1997

(R), which was disposed of vide order dated 27.03.2006 by quashing order dated 09.08.1997, however, liberty was reserved with the University to

proceed against the petitioner and petitioner was also given liberty to submit representation raising his grievances.

With the liberty aforesaid, the petitioner submitted representation dated 18.05.2006 before the respondents-University for grant of pay-scale of

lecturer at par with other similarly situated lecturers, in turn, order dated 26.08.2008 was passed by the respondents-University (Vice-Chancellor)

whereby it was held that:

(a).The date of joining of Sri Ashwani Kumar Tripathi be shifted form 06.04.1981 to 23.04.1981.

(b).The University order contained in memo No. B/22131-39 dated 09.08.1997 which has been quashed by the Hon’ble Court stands withdrawn

with effect from its date of issuance i.e. 09.08.1997.

(c).The confirmation of the petitioner as notified vide Ranchi University memo no. B/20060-200130 dated 29.05.97 be made effective.

(d).The pay fixation of pay of the petitioner be fixed in old and revised UGC pay scale on provisional basis for approval from HRD Department.

(e)His Services from 01.05.87 to 08.02.90 will be decided later on by the Syndicate for grant of extra-ordinary leave without pay if he applies for the

same within a period of one month from the date of issuance of this order.

It has further been averred that in spite of such order, when no action was taken by the University for actual benefit, the petitioner represented

several times before the Registrar, Ranchi University, then lastly he was granted old pay-scale, however, other similarly situated lecturers were

granted revised pay-scales, which compelled the petitioner to again knock the doors of this Court by filing W.P. (S) No. 845 of 2010, which was

disposed of vide order dated 10.03.2010 with direction to the Secretary, Human Resources Development Department, Government of Jharkhand to

ensure that a decision be taken in this regard. Pursuant thereto, the petitioner annexing the copy of order dated 10.03.2010 represented before the

respondents-State but when no decision was taken, the petitioner filed a Contempt Petition, being Cont. Case (Civil) No. 361 of 2010, however, during

pendency of the said Contempt petition, the respondents-authorities rejected the claim of the petitioner vide order dated 07.09.2010, which is impugned

in this case.

Heard Mr. Kanti Kumar Ojha, learned counsel for the petitioner and Mr. Rahul Kamlesh, A.C to learned S.C. I for the respondents and Mr. Anoop

Kumar Mehta, learned counsel for the respondents-University.

Learned counsel for the petitioner submitted with vehemence that respondent no. 2 has no authority in law to re-open the matter regarding

appointment/regularization of the petitioner, which has already been settled by the competent authority by passing order dated 26.08.2008 in pursuance

to order passed in C.W.J.C No. 2284 of 1997(R). It has further been submitted that the said authority has not considered the claim of the petitioner in

its right perspective. Learned counsel for the petitioner further submitted that the appointment of the petitioner was done after following due process

of appointment i.e. by advertising the post in the State level newspaper and by conducting interview through experts. It has further been submitted that

as per Section 35 of the University Act, the University/Vice-chancellor is competent to regularize the services of the petitioner and Human Resources

Development Department has no authority under law to raise the question of regularization, which has already been settled by Statute dated

29.01.1986 “Statutes for Regularization of the Service of Purely Temporary Lecturers Appointed on or before the 28th February, 1982â€. Learned

counsel for the petitioner further submitted that though the name of the petitioner was at serial no. 1 in the panel prepared for making appointment on

the post of Lecturer in Commerce in Gyan Chand Jain Commerce College, Chaibasa and petitioner’s absorption was also made by the University

vide notification dated 30.07.1991, even then pay fixation was not made whereas person at serial no. 4 has been extended the benefit of pay fixation.

Learned counsel for the petitioner referring to order dated 8. 03.2013 passed in Cont. Case (Civil) No. 370 of 2012 (Dr. Trilochan Mahto & Ors

Vs. The State of Jharkhand & Anr) submitted that pursuant to order passed in that contempt petition, vide order dated 08.05.2013 was passed by the

Principal Secretary, Human Resources Development Department, Govt. of Jharkhand whereby provisional pay fixation made by the University have

been granted approval by the HRD Department.

As against this, learned counsel for the respondent-State submitted that the initial appointment of the petitioner was not done by the competent

authority as neither the Principal, who is the father of the petitioner, nor the Managing Committee or Governing Body had any power to make

appointment after 12. 07.1980. Furthermore, the petitioner was appointed on 6. 04.1981 as lecturer and at that time he was not possessing the

minimum qualification of Master Degree, hence on this ground also his initial appointment is illegal, void ab initio. For appointment of the petitioner

even the recommendation of the Commission was not obtained, in utter violation of Section 9, 10 and 11 of the Bihar College Service Commission Act,

1976. Hence, confirmation of the services of the petitioner by the vice Chancellor of the University by ignoring these facts, is against the Rule and act

of the University. Hence, the respondent no. 2, who was directed to take decision as per order passed in W.P. (S) No. 845 of 2010 vide order dated

10.03.2010, has validly rejected the claim of the petitioner regarding his pay-fixation as State Government provides grand-in-aid to the University for

making payment to only legally and validly appointed employees.

From the pleadings available on record, it appears that Syndicate of Ranchi University in its meeting dated 04.01.1997 confirmed the services of the

petitioner w.e.f 01.03.1982, who is stated to be appointed on 06.04.1981, along with other teachers vide notification dated 29.05.1997. But, the

Registrar of the Ranchi University in partial notification of aforesaid notification dated 29. 05.1997 cancelled the order of confirmation vide office

order dated 09.08.1997, which was challenged by way of filing C.W.J.C. No. 2284 of 1997 (R). The said writ petition was disposed of vide order

dated 27.03.2006 by quashing order dated 09.08.1997 and it was directed to take fresh decision. In compliance thereof, the Vice-chancellor of the

University passed order dated 26.08.2008, whereby the date of joining of the petitioner was shifted form 6. 04.1981 to 23.04.1981, on the ground that

he obtained Master degree on 23.04.1981, which is the minimum qualification for appointment on the post of lecturer and confirmation of services of

petitioner was made effective as per earlier order and further decision was taken to fix the pay as per revised UGC scale and the matter was sent for

approval. But even after much persuasion when no decision was taken, the petitioner filed W.P. (S) No. 845 of 2010, which was disposed of vide

order dated 10.03.2010 with direction to the Secretary, Human Resources Development Department, Government of Jharkhand to take a decision in

this regard.

In the light of aforesaid direction, respondent no. 2 passed the impugned order, but, from bare perusal of impugned order it appears that the

respondent no. 2 travelled beyond the issues involved in the matter and instead of deciding the matter of pay-scale in the revised scale, the concerned

respondent has gone into the matter of initial appointment of the petitioner, which was not the matter of challenge before the writ Court in W.P. (S)

No. 845 of 2010. However, to judge the reasons assigned by the concerned respondents denying the claim of the petitioner by passing impugned order

it would be apt to mention here that Vice-Chancellor in its order dated 26.08.2008 was not oblivious of the fact regarding acquisition of Master degree

by the petitioner on later date; hence, his date of joining was shifted form 06.04.1981 to 23.04.1981 thereby the respondent no. 5-the Vice-Chancellor

of university rectified the irregularity. It does appear that the respondent no. 2 while passing the impugned order did not differentiate in between

‘irregularity’ and ‘illegality’ and passed the impugned order without taking into consideration the order passed in W.P. (S) No. 845 of

2010.

Learned counsel for the petitioner to show parity has made much emphasis on order dated 08.05.2013 (Annexure -12 to the rejoinder affidavit

dated 02.01.2014), wherein after order being passed in Cont. Case (Civil) No. 270 of 2012, the respondent-State acted in accordance with the

recommendation of University. On perusal of Annexure 12, I do find force in the submission advanced by learned counsel for the petitioner.

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 07.09.2010 is hereby quashed and

set aside and matter is remanded to the concerned respondent(s) to take a decision afresh, keeping in mind the aforesaid aspect of the matter, within a

period of three months from the date of receipt/production of copy of this order.

With the aforesaid observations and directions, the writ petition stands allowed.