Dr. Rabindra Kumar Roy vs State Of Jharkhand through the Secretary

Deepak Roshan, J

Heard learned counsel for the parties.

The instant writ application has been preferred by the petitioner with following prayers:

(i) To quash and set aside the decision of the screening committee of not granting promotion to the petitioner under Time-Bound Scheme, which was communicated to the petitioner through a contained letter of in memo no VBU/P/HC/88/2017/1482/19 dated 22.05.2019. (Annexure-13)

(ii) To direct the respondents, in particular respondent nos. 2 and 3, to consider the case of the petitioner for promotion from the post of Lecturer to the post of Reader and other consequential benefits. including the promotion to the next higher post of Professor, counting the services of the petitioner from the initial date of appointment on 25.2.1983 under the Time Bond Scheme of promotion.

(iii) To hold and declare that the initial date of appointment  of  the  petitioner  on  25.2.1983  would  be  the date for the purpose of counting of continuous services of the petitioner for promotion to the post of Reader and Professor respectively as per the scheme of Time Bond scheme.

(iv)  To  direct  the  respondents  to  consider  the  case  of  the petitioner for promotion to the post of Reader and consequently  to  the  post  of  Professor  in  accordance  with law  counting  his  services  from  25.2.1983  i.e.  the  date  of initial appointment.

(v) For any other appropriate relief/reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioner.

Briefly stated, the State of Bihar, Education Department sanctioned two posts of Lecturers in the pay-scale of Rs.700-1600 in Adarsh College, Rajdhanwar by letter dated 14.09.1982. Consequent thereto, the petitioner was appointed on sanctioned and vacant post of Lecturer in History subject by letter dated 24.02.1983 and petitioner gave his joining on 25.02.1983. Thereafter, on 10.12.1983, the Bihar College Service Commission, Patna granted concurrence  to  the appointment of  petitioner w.e.f. 25.02.1983 i.e. the date of his joining. On 22.03.1985, the Bihar College Service  Commission,  Patna extended  the concurrence on certain conditions relating to five  Lecturers including  the  present petitioner.

Initially, the Adarsh College, Rajdhanwar was established in 1973 and was affiliated to Ranchi University, however, the said college was converted into constituent college of Ranchi University w.e.f. 11.01.1978. Thereafter, on the establishment of Vinoba Bhave University, the Adarsh College became a constituent college of Vinoba Bhave University, Hazaribagh and after formation of State of  Jharkhand,  the said college falls within  the territorial limits of the State of Jharkhand.

In the light of orders passed by the Patna High Court in C.W.J.C.  No.  4021  of 1995 and  in  pursuance  of Section  4(14)  of the Bihar State Universities Act, 1976, the services of the petitioner along with others were regularized w.e.f. 25.02.1983. The said judgment was challenged before the Hon’ble Apex Court in  Civil Appeal  No.  6098  of  1997  and  during  the  pendency  of  the said appeal, Hon’ble Supreme Court appointed Hon’ble Mr. Justice S.C. Agrawal  to  submit  a  report  on  the  issue  of  regularization  of services of teaching and non-teaching staff of constituent college.

Upon  submission  of report,  the  Civil Appeal  No.  6098  of  1997 was disposed of. On 16.09.2005, Vinoba Bhave University issued a notification; whereby the services of the petitioner along with others  were  regularized.  In the  said notification,  the  date of  initial joining of the petitioner was mentioned as 25.02.1983 and the date of absorption was mentioned as 09.05.1988.

The case of the petitioner is that as per the scheme of time bound  promotion,  he  was  entitled  for  promotion  from  the  post  of Lecturer to the post of Reader on completion of 10 years of continuous service. Similarly, he was entitled for consequential promotion to the post of Professor on completion of 25 years of service from the date of initial appointment.

The petitioner requested  several times to  the  Vice Chancellor, Vinoba Bhave University for consideration of his case but all went in vain.  The petitioner as a last resort, approached this Court by filing W.P.(S). No. 6894 of 2017, which was disposed of vide order dated 19.12.2017. Thereafter, the petitioner made representation to the Registrar,  Vinoba Bhave University to take a decision as per the direction of this Court.

Instead of taking any decision, the petitioner learnt that Respondent No. 1 had filed a CMP bearing CMP No. 451 of 2018, although, the said CMP stood dismissed as withdrawn. Subsequently, by letter dated 22.05.2019, the case of petitioner for Time Bound Promotion has been rejected, which is the subject matter of challenge in the instant writ application.

Mr. Manoj Tandon, learned counsel appearing for the petitioner draws attention of this Court towards Annexure-8, which is a Notification  issued by  the Vinoba  Bhave  University  absorbing the petitioner. The said order (Anexure-8) clearly indicates that the date of initial appointment of the petitioner was 25.02.1983 and he was absorbed on 09.05.1988.

Mr. Tandon further referred to the “Statute for promotion of Demonstrators to the post of Lecturers”. He further referred to the“Statutes for time bound promotion of Lecturers to post of Readers and for Readers to the post of University Professors”  and submits that Clause 1(1)(c) clearly indicates that a person who has completed at least 10 years of continuous service as Lecturer in one or more Universities, he is entitled for promotion on the post of Reader. Relying upon the aforesaid clause,

Mr.  Tandon  contended  that  time  bound  promotion  and  regular promotion are different. Time bound promotion is basically a monetary benefit in order to avoid the stagnation and in the Statute,  it  is clearly  stated that  10  years of continuous service as Lecturer  will  be  the  requirement  of  promotion. The  Statute  of  the University does not stipulate a single word or distinguishes a person working on work charged/temporary or a regular employee.

He further referred to the judgment passed by the Hon’ble Apex Court in the case of Prem Singh Vs. State of U.P. & Ors. (2019) 10 SCC 516 wherein at paras-33 and 34, it has been held that services rendered even prior  to  regularization  in  the  capacity  of  work  charged  employee, contingency paid fund employee or non-pensionable establishment shall  also  be  counted towards  the  qualifying  service even  if  such service is not preceded by temporary or regular appointment in pensionable establishment.

Referring to this judgment, learned counsel submits that now law is no more res-integra that for the purpose of pension the initial date of appointment is to be counted and for time bound promotion the Statute is very clear which says only continuous service as  Lecturer  in one  or more  Universities. Accordingly,  the prayers made in the writ application be allowed.

He further referred to the judgment passed by the Division Bench of this Court  in  LPA No. 27 of 2023  (Amrendra  Kumar Vs. the State of Jharkhand & Ors.), wherein the Division Bench of this Court after taking into consideration the judgment passed in  Prem Singh Vs. State of U.P. & Ors. (supra), has reiterated the same view.

Learned counsel for the respondents vehemently opposes the prayer  of  the  writ  petitioner  and  relying  upon  paras-5  &  8  of  the counter-affidavit dated 14.07.2022 submits that no relief can be granted to the petitioner. For brevity, para-5 & 8 of the counter- affidavit is extracted herein below:

“5. That it is stated and submitted that it is mentioned in the Justice S.C Aggarwal Commission report that:

"An Examination of the qualifications of the remaining member  of  Teaching  Staff  Shows  that  the  following  member of teaching Staff did not possess requisite qualification on the date of the appointment.

Sri Rabindra Kumar Roy was appointed as lecturer in History by order dated February 24, 1983. On the date of appointment, he did not have consistently good academic record in as much as he had not obtained an aggregate of 50%  marks  in  two  previous  examinations  as  required  under the 1978 Statues which were applicable. He, however had first class Post Graduation Qualification. He became eligible for consideration on May 9, 1988."

………….

7.…………..

That it is stated and submitted that the cut-off date for promotion scheme is 22.09.1995 and the Petitioner completes his tenure of ten years as on 08.05.1998 which is after the cut off due date.”

Learned  counsel  further  referred  to  the  judgment  passed  in  the case of  Government of  West Bengal  & Ors.  Vs.  Dr. Amal  Satpathi &  Ors.  [Diary  No.  43488  of  2023;  2024  INSC  906], wherein  the Hon’ble Apex Court while referring to the judgment passed  in the case of State of Bihar Vs. Akhouri Sachindra Nath 1991 Supp (1) SCC 334, held that promotion is not a fundamental right; rather, it can only be considered  and  no  retrospective  promotion  can  be  granted  to  any person  and  promotion  cannot  be  granted  when  the person  has  not taken birth on the position. Relying  upon the aforesaid paragraphs of counter-affidavit and judgment, he submits that no relief can be granted to the petitioner.

Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavit, it appears that the petitioner was appointed on 25.02.1983 and he was duly  absorbed on  09.05.1988 and after serving  36  years,  the petitioner superannuated from service on 26.11.2019. This application was filed prior to his retirement claiming for time bound promotion and also for considering the date of initial appointment for pensionary benefits.

So far as counting of period for the purpose of pensionary benefits is concerned; the same has been set at rest. Even the Division Bench of this Court in LPA No.27 of 2023 (Amrendra Kumar  Vs. the  State  of  Jharkhand  &  Ors),  has  held  in  para-4  as under:

“4. The question of law involved is not any more res-integra and it has been settled in various judgments by the Supreme Court including one in the case of Prem Singh versus State of Uttar Pradesh and Others, reported in (2019) 10 SCC 516, wherein the Supreme Court has held that the imposition of rider that such service, i.e., service in the work-charged establishment, to be counted has to be rendered in- between  two  spells of temporary or temporary and permanent service is legal and proper. The Supreme Court has further held that on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment, it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted  to  be crossed. The Supreme Court further held  that it would be highly  discriminatory  and  irrational because of  the rider  contained  in  the  Note  to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent  services. There is no rhyme or reason not  to count the service of work-charged period in case it has been rendered before regularisation. In the opinion of the Supreme Court impermissible classification has been made under Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961. The Supreme Court held that such classification is highly unjust, impermissible and irrational to deprive  such employees  benefit  of  the  qualifying service. Service  of  work-charged period remains the same for all the employees, once it is to be counted for one class, it has to  be counted  for all to prevent discrimination. The classification  cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have  preceded  by  temporary capacity  is  discriminatory  and  irrational  and  creates an impermissible classification.”

Learned  counsel  for  the  respondents  could  not  dispute  the  fact that the order passed in the said LPA  was challenged before the Hon’ble Apex Court, however, the same was dismissed and the Hon’ble Apex Court did not interfere with the judgment.

Thus, this Court is having no hesitation in holding that the petitioner is entitled for pensionary benefits treating his date of initial appointment.

So  far as the issue of time bound promotion is  concerned; it is true that regular promotion cannot be given retrospectively. It is also not in dispute that promotion become effective from the date it is granted, and not from the date when vacancy arises or post is created. However, at this stage it is relevant to mention that neither the  judgment  passed in the  case  of  Government  of  West Bengal  & Ors. Vs. Dr. Amal Satpathi & Ors. (supra) is applicable in this case, nor time bound promotion and regular promotion are one and the same.

So  far  as  time  bound  promotion  is  concerned;  it is  basically  a financial upgradation which is given to the employee in order to avoid stagnation. There is no quarrel with the judgment passed by the Hon’ble Apex Court in Government of West Bengal & Ors. Vs. Dr.  Amal  Satpathi  &  Ors.  (supra),  however,  the  fact  remains  that the  instant  case  is  not  a  case  of  promotion;  rather,  it  is  a  case  of time bound promotion and as stated herein above it is merely a financial upgradation.

At this stage it is also relevant to refer the Statute for Time Bound Promotion of Lecturers to the post of Readers and from Readers to the post of University Professors dated 24.12.1986, wherein in Clause-1(1)(c) it has been categorically stated that only 10 years of continuous service as Lecturer is required.

Having regard to the aforesaid discussions, the instant writ application is allowed. Accordingly, the impugned order dated 22.05.2019.  (Annexure-13),  is  hereby,  quashed  and  set  aside.  The respondents are directed to calculate the monetary benefit accruing from time bound promotion calculating the date of initial appointment i.e. 25.02.1983 and pay all the monetary benefits including the revision of pension within a period of 12 weeks from the date of receipt of a copy of this order.